Canadian Labour Reporter

MARCH 10, 2014 8 Canadian HR Reporter, a Thomson Reuters business 2014 permissible interpretations to be preferred?" Citing a previous precedent-setting decision Gordon said that, when faced with a choice between two acceptable op- tions, arbitrators must focus on the purpose and reasonableness of each argument. That said, Gordon sided with the employer and ordered its change to the vacation entitlement policy be upheld. In order for benefits to be pro-rated, they must be made pro- portionate to that which is the measure of full benefit entitle- ment, Gordon concluded. As such, she determined the measur- ing stick to be a regular community health worker who works 40 hours per week. "All community health workers are entitled to be placed at the appropriate rung on the vacation leave ladder based on their years of continuous service. The number of work days of vacation connected to each rung on the ladder constitutes the full measure of entitlement for regular community health workers working 40 hours per week," she explained. "The pro- rata rule is then applied for regular part-time workers, and their proportionate share of the full measure of vacation days is cal- culated based on their fewer hours worked as compared to a regular full-time worker working 40 hours per week. Then, the vacation pay associated with that vacation leave entitlement is calculated under (the collective agreement)." Therefore, she dismissed the grievance. Reference: Health Employers Association of British Columbia, repre- senting Interior Health Authority, and the British Columbia Govern- ment and Service Employees Union and United Food and Commer- cial Workers Union. Joan M. Gordon — arbitrator. Jen Perry for the employer, Esther Ostrower for the union. Jan. 30, 2014. Elevator worked who refused travel because of elderly mother terminated SHAWN CASSISTA WAS fired by Otis Canada for insubordination on July 30, 2013, for refusing to attend an assignment in New Brunswick. Cassista grieved the termination, claiming he never refused the work. He said he requested additional time before taking the assignment to make arrangements for the care of his elderly mother, and claimed the Nova Scotia-based company had a duty to accommodate his request. Cassista, an elevator mechanic who lived in Halifax, began working for Otis in February 2013. While the company's central office is located in Halifax, mechanics can be assigned to work on jobs throughout Atlantic Canada. On July 22, 2013, the company's field manager John With- row assigned Cassista to a job in Fredericton, telling him he would start the following week on July 31. Cassista told his field manager he lived with his elderly mother and would have to find someone to stay with her while he was away, or purchase some type of alarm system. If he was unable to put either of these plans in place within the next few days, Cassista said, he would have to take time off. Cassista testified he spent his breaks that day searching online for an alarm system for his mother. She suffered from congestive heart failure, worsening arthritis, migraines, limited mobility and had a history of falls. Cassista wanted to install an alarm system in the home with a device his mother could activate should she fall while he was away. When he had made the decision to buy the system that weekend, the company's offices were closed. Withrow testified that Cassista called him early on Monday, July 29, to say he would be unable to attend the assignment in Fredericton because of his mother. Cassista never made it clear he intended to go to Fredericton later and that he simply needed more time, Withrow said. Withrow relayed this information to the manager of opera- tions and Cassista was called into the company's central office on July 30 and fired for insubordination. Cassista denied this, claiming he asked for more time be- fore taking the assignment. The International Union of Elevator Constructors Local 125 filed a grievance on Cassista's behalf, requesting he be reinstated with retroactive pay. Cassista's mother required assistance in her daily life, the union argued, and requiring Cassista to attend an assignment in Fredericton affected his ability to provide that assistance, amounting to discrimination on the basis of family status. Cassista's position that an alarm system was a necessary addition was undermined by the fact he had still not purchased any such system at the time of the hearing, the employer ar- gued. It also brought forward evidence Cassista had travelled to Fredericton for work for a previous employer with no such alarm system. "The evidence did not support a finding of a sincere, serious and sustained effort on (Cassista's) part to purchase the ad- ditional communication device that he alleged was necessary," arbitrator Augustus Richardson said. "He did not establish that a lifeline device was necessary to enable him to work out of town for four nights a week; or that if it was necessary… that he had communicated his request for more time in the meeting with his manager." Despite these failures, Richardson ruled, the employer lacked just cause to terminate Cassista. When Withrow explained the situation to the company's manager of operations, he failed to include information about Cassista's mother and his efforts to find alternative care. Be- cause the decision to terminate Cassista was based only on the information that he had refused work — not that the refusal was related to any issue involving his mother — Richardson found the decision was made on a "limited, incomplete and to some extent incorrect set of facts." The employer was ordered to remove any discipline from Cassista's personnel file and Cassista was ordered reinstated effective July 30 without a loss of seniority and without com- pensation. Reference: Otis Canada and the International Union of Elevator Constructors, Local 125. Augustus Richardson — Arbitrator. Patrick Moran for the employer, Raymond Larkin for the union. Nov. 10, 2013. Continued from page 6

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