Canadian Labour Reporter

MARCH 3, 2014 8 Canadian HR Reporter, a Thomson Reuters business 2014 demerit points for falsely booking off and an investigation was launched into Hammett's absenteeism and work history. The company audited Hammett's time slips and discovered he had submitted wage claims for March 4, 5, 6 and 7 when he was unavailable for work. Hammett also claimed three days' wages for bereavement leave for April 13, 14 and 15, 2012. On March 3, 2012, Hammett drove to Cranbrook, B.C., his place of residence. Hammett's trainmaster attempted to contact him on March 4 and March 6 to arrange his training schedule. When Hammett met with his trainmaster on March 7, he was unable to provide an explanation for his unavailability. During the company's investigation Hammett said his train- master had given him permission to take several days off to spend with his family, which the trainmaster denied. Hammett told the company he originally believed he was entitled to wage claims on those days because he was soliciting locomotive en- gineer trainers. When asked to name some of the potential trainers he had solicited, Hammett was unable to provide any names. Instead, he told the company he "must have sent out a good 45-50 letters to various engineers." None of the letters were produced in the course of the investigation or hearing. Hammett was, however, able to retroactively receive authori- zation for personal time off on March 4, 5 and 6, 2012. On April 13, 14 and 15, 2012, Hammett booked himself as unavailable due to bereavement leave. When he initially submit- ted his claim for the three days' compensation he failed to cite his relationship to the deceased. The claim was denied. When he resubmitted the claim Hammett listed his grandfa- ther as the deceased. His claim was approved on April 30, 2012. At the same time he received approval for the claim Hammett also learned the company planned to launch an investigation into his attendance and work history. Two days later he withdrew the claim for bereavement on the basis he had been mistaken about his relationship to the deceased. Hammett told the company his father had recently revealed to him the deceased was not his grandfather, as he had always believed, but his uncle. The company contended Hammett was educated in the appli- cable provisions of the collective agreement and knew — at the time he submitted his claim — that the deaths of grandparents were covered but the deaths of uncles were not. Hammett was subsequently fired for his deliberate submis- sion of fraudulent wage claims. Teamsters Canada Rail Conference filed a grievance on his behalf, requesting the discipline be removed in its entirety. The union requested Hammett be reinstated without loss of senior- ity and benefits, and that he be made whole for all lost earnings with interest. "In submitting his claim for wages as he did, (Hammett) sought to deceive the company to obtain wages that he did not believe he was entitled to receive," arbitrator Christine Schmidt said in her ruling. "That conduct was fraudulent." Schmidt ruled Hammett made wage claims with the intent to defraud the company, and found his dismissal to be justified. Reference: Canadian Pacific Railway Company and Teamsters Can- ada Rail Conference. Christine Schmidt — arbitrator. A. Becker for the employer, D. Olson for the union. Jan. 27, 2014. Calgary firefighter sets pension debate ablaze AS THE BATTLE between the City of Calgary and the local fire- fighters' union heats up, one worker claimed he was not fairly represented by his local chapter. Allan Ball, a firefighter since 1987, filed a duty of fair repre- sentation complaint against the Calgary Fire Fighters Association relating to the union's handling of an ongoing grievance regard- ing alleged back pension funds. But because that initial grievance is still being debated be- tween the city and union, an arbitrator dismissed Ball's misrepre- sentation claims on the basis it is too early to reach a conclusion. The case began when Ball joined the fire service. As he was previously employed with the provincial government, he applied to buy back pension on account of that prior service. He was entitled to buy back about 3.5 years of service, which translated to a payroll deduction plan at $42.64 per pay for 15 years. So the city of Calgary set it up. The problem arose when Ball, alongside about 40 other fire- fighters, alleged the city failed to indicate the buy back of the previous service in 2007. The local chapter filed a grievance, and it was decided all of the cases would be presented at one hearing. Ball's case stood out, as did one of his co-worker's. But the union felt it would be better to present the other firefighter's case ahead of Ball's (as the "test case"), citing a greater possibility for settlement as its motivation. Ball disagreed. "This is further evidence of the union's lack of fairness and ability to assess the significance or consequence to him on this matter," he argued. Contrary to that, the union maintained it did not act arbi- trarily, but rather carefully examined its options before reaching its conclusion. As such, the firefighter's association acted appro- priately under the labour code. "This is an examination of the union's behaviour — not an ap- peal of the union's decision," arbitrator Gerald Lucas explained. "In deciding whether or not to pursue a grievance, a union must avoid arbitrary, capricious, discriminatory or wrongful conduct. It must not act in bad faith." He concluded the union did just that. While the initial pension grievance was (and continues to be) a meandering process, many of the court delays were not the union's fault. It was the union's duty to assess its options and go from there. "As a result, we dismiss the case at this time," said Lucas. "If, after the union has pursued the complainant's grievance...and if (he) still believes the union failed to fairly represent him he is at liberty to file another complaint." Reference: Allan Ball and the Calgary Fire Fighters Association, Local 255. Gerald A. Lucas — arbitrator. Jan. 30, 2014. Continued from page 6

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