Canadian Labour Reporter

December 6, 2021

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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not occurred and the deposit date was still Dec. 25. It informed the union that it had decided to de- posit a payroll advance of 50 per cent of the employees' pay on Dec. 24. Later that day, the com- pany decided to deposit a second advance of the remaining 50 per cent. The company emailed its em- ployees about the two advance payments on Dec. 24 and noted that because it couldn't change the payroll process, they would also receive a second payment on Dec. 29. This would result in a double payment, so the com- pany planned to deduct the entire amount of the advance from em- ployees' pay in January 2021. On Jan. 4, OEM informed em- ployees that it would be deduct- ing the extra payment on Jan. 22, 2021. Many employees respond- ed that they did not consent to the deduction, pursuant to the collec- tive agreement — which incor- porated a section of the Alberta Employment Standards Code and required an employee to return any overpayment "in a manner that is acceptable to the employer and the employee upon written consent of the employee." The company disagreed that the collective agreement applied because it was an advance, not an overpayment. However, it agreed to consider repayment plan pro- posals from employees. Many employees didn't submit repayment plans and repaid the payroll advance in full on Jan. 22, while others did submit plans. OEM indicated that it would ac- cept repayment plans of four instalments or less and allow employees who proposed more than four to present their case why they needed that many. The union requested a threshold of six proposed instalments. A few days later, OEM indi- cated that it would deduct 25 per cent of the payroll advance on Jan. 22 unless an employee and the company agreed upon an alternate repayment plan. The union filed a grievance alleging that OEM breached the collec- tive agreement for those em- ployees who had not agreed to repayment plans authorizing the deductions. The arbitrator found that OEM's plan to deduct 25 per cent of the payroll advance was uni- lateral and the deductions were effectively made on Jan. 19, when it submitted the payroll informa- tion for the Jan. 22 payday — be- fore all the repayment plans were submitted. The arbitrator also found that while the initial payment on Dec. 24, 2020, may have been a payroll advance, the Dec. 29 payment was an overpayment of wages that fell within the collective agreement and code's require- ment for written authorization for deduction. This requirement reflected the vulnerability of em- ployees to deductions, the arbi- trator said. The arbitrator determined that OEM failed to obtain the neces- sary employee authorization for the payroll deductions, which breached the collective agree- ment and the code. However, given the efforts OEM made to "get pay in the hands of employ- ees before the Christmas holiday," the arbitrator found that the com- pany's actions were not harmful or egregious enough to justify a damage award. Reference: Logistics, Manufacturing and Allied Trades Union, CLAC, Local 56 and O.E.M. Remanufacturing. Mark Asbell — arbitrator. Arooj Shah for employer. David de Groot for employee. Oct. 28, 2021. 2021 CarswellAlta 2668 Each applicant was inter- viewed by the director of clinical services and an HR generalist. They conducted an oral interview with 13 questions and required written answers to three scenar- ios. The panel graded their an- swers, education, experience, and attendance to achieve an overall rating out of 100. Caetano scored slightly higher in education and experience while both applicants scored the same for attendance and manager's rat- ing. The interview questions were scored separately by the two panel- lists and then averaged. The collective agreement stipulated that when internal ap- plicants for any jobs within the bargaining unit had qualifications relating to "performance, ability and experience" that were "rela- tively equal," seniority should be the deciding factor. Caetano ended up with a score of 74.125 and the other applicant scored 83.5, for a difference of 9.375 — a greater difference than the seven points that Central West had been using to define "relatively equal" since a 1999 ar- bitration award with a different union that it subsequently incor- porated into its hiring policy. Central West awarded the position to the other applicant. Caetano filed a grievance alleg- ing that the company violated the collective agreement because the two candidates were rela- tively equal and she had more se- niority. The arbitrator noted that both candidates were well qualified for the position and the seven-point threshold that Central West used came from an arbitration award involving a different union. The arbitrator also noted that the hiring policy also called for sample answers and bench- marks for the interview process, but these were rarely used and weren't in this case. Allocating points without a standard for scoring answers "puts a veneer of false objectivity on what essen- tially becomes a purely subjective exercise," the arbitrator said. The evidence showed that both applicants had similar an- swers for many of the questions in which Caetano scored lower and the interviewers focused some of their comments on writ- ing style, saying that Caetano's answers were harder to follow. However, the arbitrator found that wasn't the case on an objec- tive reading. "The difference in scoring on the written scenarios was not reasonable and illustrates the problem of the panel not being guided by sample answers or benchmarks," said the arbitra- tor. The other applicant scored four points better on the written scenarios, which meant that had they been scored equally, the total difference would have been 5.375 points. The arbitrator also found that while Caetano scored higher on experience, it was only by one point — although the other appli- cant had about half of her experi- ence. In the oral interview, the evi- dence indicated that sometimes the interviewers failed to follow up by asking for details. It was unfair to score lower because of a lack of detail and made it more of a test of interview skills rather than skills related to the job, the arbitrator found. The arbitrator determined that the other candidate was not demonstrably better in perfor- mance, ability, and experience and Caetano should be placed in the community nurse specialist position based on her seniority. Reference: Central West Specialized Developmental Services and ONA. Lorne Slotnick — arbitrator. Patrick Pengelly for employer. Alison Dover for employee. Oct. 6, 2021. 2021 CarswellOnt 13826 'Relatively equal' means seniority becomes determining factor Alberta firm overpaid workers; consent needed to recoup funds < Seniority pg. 1 < Repayment pg. 1 December 6, 2021 8 Canadian HR Reporter, a Key Media Canada (HR) Ltd. business 2021

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