Canadian Labour Reporter

JANUARY 27, 2014 8 Canadian HR Reporter, a Thomson Reuters business 2014 Continued from page 6 2013, or Canada Day, according to a recent arbitration decision. Pires had been on sick leave from June 19, 2013, to July 4, 2013, and was receiving sick benefits at the time, which pays less than what he would have gotten paid had he been at work. Canada Day is a named holiday under Sleeman's collec- tive agreement and, as such, no one was scheduled to work that day. Had Pires not been on sick leave, he would have been entitled to a paid holiday or day off in lieu. When he got neither, he filed a grievance through his union, the Sleeman Employees' Association. Further complicating the matter is that, though this particu- lar grievance is an individual one, both parties are heading into collective bargaining, and this decision could set a precedent during negotiations. During the hearing, the employees' association argued holi- day pay is an earned benefit part of the overall compensation package for workers — regardless of whether they are on sick leave or not — and reflects compensation already earned. "Holiday pay is an earned benefit and receipt of sick benefits under (the collective agreement) does not disqualify employees from also receiving holiday pay," the union argued. "Holiday pay was not a bonus, and is not limited to employees engaged in ac- tive employment, but is earned by previous service." However, Sleeman argued that because Pires was receiving sick leave compensation, he was not entitled to the holiday pay. Employees on short- and long-term disability are entitled to an insured benefit, and the collective agreement dictates the employer's responsibility was limited to pay premiums only for that insured coverage. Receiving the sick benefit automatically means an employee is no longer actively at work — and that sick benefit replaces all income, including income that would have been paid for days on which the employee qualified for holiday pay. "To claim both the sick leave benefit and the holiday pay is double-dipping," Sleeman argued, adding that these ben- efits were not independent of each other. "Simply being em- ployed does not result in entitlement to the benefit unless there is express language in the collective agreement to that effect." The collective agreement did not otherwise rule out holiday pay to an employee who is absent from work due to medical reasons. Instead, its provisions stated the employer "shall" pay holiday pay to "an employee" for that day. "Holiday pay is not 'income lost because of a disability' as referred to in the benefit booklet regarding short-term disability because I have found that the employer's obligation to pay holi- day pay continues even for an employee absent from work due to disability," Nairn's decision reads. "The payment of holiday pay is the employer's obligation. The payment of short-term dis- ability is not." Thus, Sleeman was guilty of not paying out holiday compen- sation where it was due. Reference: Sleeman Brewing & Malting Co. and the Sleeman Em- ployees' Association. Marilyn Nairn – arbitrator. James G. Knight for the employer, Simon Blackstone for the union. Jan. 14, 2014. Poultry plant employee offers no apologies A POULTRY PROCESSING plant employee offered no apology when an arbitration board found he threatened to sexually assault and kill a coworker. William Yel-Malual was dismissed by Prairie Pride Natural Foods after an altercation with his coworker, Blair Kutney, in May 2012. A five-year employee of the company's plant in Saskatoon, Yel-Malual denied any wrong-doing. Both Yel-Malual and Kutney worked in the plant's live end. Yel-Malual was a hanger while Kutney worked as a lead hand. Employees in the live end work in close quarters, standing shoul- der to shoulder at a conveyor belt. As the most senior hanger, Yel-Malual could choose his posi- tion on the conveyor belt. On May 31, 2012, he chose to stand in the position nearest the button that activates the production line. As the start time approached, Kutney told Yel-Malual multiple times he should prepare to push the button and activate the con- veyor belt. Kutney testified Yel-Malual ignored him, leading him to reach around Yel-Malual to press the button himself. Yel-Malual began yelling at him, Kutney said, using the words "fuck you," "I am going to get you," "I'm going to use a knife" and "I'm going to fuck your ass." Kutney concluded he was unsafe and left the scene to report the incident to the plant manager. Yel-Malual denied threatening Kutney, telling the manager Kutney had kicked him two times in the knee after he refused to press the button. Yel-Malual testified he was unaware Kutney was a lead hand, saying Kutney did not wear the orange hat traditionally signifying the position. He ignored Kutney's orders to turn on the button because he was waiting for a lead hand, Yel-Malual said, when Kutney attacked him. Yel-Malual was terminated. Contributing to the decision to dismiss him, the employer said, was the fact that Yel-Malual had been disciplined for another incident involving Kutney only months earlier. In September 2011, Yel-Malual was suspended for three days after he allegedly elbowed Kutney in the chest. Yel-Malual grieved the dismissal and suspension through his union, the United Food and Commercial Workers Local 1400. The arbitration board found Yel-Malual's confusion concern- ing Kutney's role to be an insufficient excuse for his actions. "The pattern is the same," the board ruled. "Deny the em- ployer's allegations and come up with a version of events that exonerates the grievor and shifts sole responsibility and blame for the wrongdoings to Mr. Kutney." As well, it was unlikely Yel-Malual would change if reinstated. "There was no apology; there is no remorse," the board stat- ed. "There is no prospect of anything good coming out of rein- stating the grievor to the workplace." Reference: Prairie Pride Natural Foods and the United Food and Commercial Workers Local 1400. William F.J. Hood, Blake McGrath and Robert Smith — Arbitration board. Leah Schatz for the employer, Dawn McBride for the union. Dec. 6, 2013.

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