Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 July 7, 2014 ArbitrAtion AwArds and television services. The employer maintains the services were not properly in- stalled and, by coding for all of the work, Campbell claimed for more money than he had earned. During the course of the inves- tigation into the incident, the em- ployer claims Campbell caused a breach of confidentiality, con- trary to the company's Business Conducts Standards. Campbell called dispatch at the Shaw Tower and had an employee pull up in- formation on the work orders be- ing investigated. Campbell asked the employee to make a call and relay the per- tinent information for him, as he did not understand some of the technical aspects of the work or- ders. The number Campbell gave the employee belonged to his union rep. By sharing customer infor- mation with an outside source, both Campbell and the dispatch employee were found to have breached confidentiality. The employee was subse- quently disciplined and Campbell received a three-day suspension for "fraudulent miscoding, poor customer experience and breach of confidentiality." In April 2013, Campbell was fired after a series of quality as- surance checks revealed he was once again reporting work orders inappropriately. He was dismissed for "just cause, including but not limited to fraudulently claiming incom- plete work as completed, despite previous discussions and disci- pline for this issue." Campbell's union —the Inter- national Brotherhood of Electri- cal Workers (IBEW) Local 213 — grieved both the suspension and the dismissal. The union said Campbell com- pleted the October 2011 work orders to the extent required to claim payment via the codes, ar- guing there was no cause for dis- cipline. With respect to the April 2013 work orders, the union al- lowed Campbell was "sloppy" and delivered "less than stellar service," but argued dismissal was excessive in the circumstances. The series of quality assur- ance checks, however, pointed to something more serious than an "honest mistake," the board found. There were three instanc- es where Campbell performed work the employer character- ized as "sloppy" and one instance where he submitted a work or- der falsely implying he had done work, when in fact he had made no efforts. According to the board, Camp- bell's reckless behavior in submit- ting false work orders, his dis- honesty during the subsequent investigations and his apparent attitude towards the guidelines regarding confidential informa- tion suggested serious discipline was justified. "Dismissal was not an exces- sive response in all of the circum- stances of the case," said arbitra- tion chair John B. Hall, employer nominee Carol Gibson and union nominee Rav Ghuman. The grievances for both Camp- bell's suspension and dismissal were denied. Reference: Shaw Cable Systems and the International Brotherhood of Electrical Workers (IBEW) Local 213. Arbitration board — John B. Hall, chair; Carol Gibson, employer nominee; Rav Ghuman, union nominee. Peter Sheen for the employer, Brandon Quinn for the union. June 9, 2014. no bargaining unit? no benefits aFTeR BeIng forced out of the bargaining unit following a disabling injury, a truck driver for Waste Management of Can- ada was forced to accept an ac- commodated position and fore- go the benefits he once had. Claudio Catalano, a 30-year veteran, suffered an injury to his back in 2006, which ultimately — but not initially — led to a de- termination that he was perma- nently disabled. As Catalano was no longer able to drive a truck, Waste Man- agement accommodated him ac- cordingly with a position in the dispatch office. This new position was not a part of the bargaining unit. How- ever, because his disability had yet to be declared permanent, the employer continued to ap- ply the provisions of the collec- tive agreement for Catalano as though he was a member of the bargaining unit. That included benefits such as 10 per cent earnings for vacation pay, a pension contribution of 5.2 per cent, as well as an attendance bonus of $28.57 per week paid directly into his RRSP. Then, in 2009, Ontario's Workplace Safety and Insur- ance Board (WSIB) declared his disability permanent. In turn, management decided to make his accommodation permanent, meaning he was permanently out of the bargaining unit. As such, his vacation pay was reduced to eight per cent, his RRSP contributions reduced to $25 per week — paid only as a matching contribution. His wage rate, too, was re- duced, but the WSIB would top up his wage rate so that there would be no real loss — only to his benefits, pension, RRSP con- tributions and vacation pay. Catalano accepted the posi- tion when the future of his wages became clear, but then filed a grievance alongside the Team- sters union. According to the employer, the grievance should be dis- missed because once his disabil- ity was deemed permanent, so too was his accommodated posi- tion outside the bargaining unit. That meant Waste Manage- ment no longer has to pay the benefits he was receiving as a bargaining unit employee, as long as he was being paid the same as the other employees in the same non-bargaining unit position. "When an employee is ac- commodated in a different posi- tion because of a disability, the employee is entitled to receive the compensation that pertains to the jobs that employee is per- forming, not the higher compen- sation that pertains to the job in which the employee was injured," counsel for the employer argued. On the contrary, the union countered, since the employer was paying the grievor his ben- efits for the three years after he moved outside the bargaining unit, and before his disability was declared permanent, it indicated Waste Management stopped paying not because of the change in job, but in the change of his abilities — that is, his permanent disability. But it was for that very reason that the employer provided his former — and higher — wage rate, regardless of its temporary nature, the grievance was dis- missed by arbitrator Norm Jesin. "That was clearly to the griev- or's benefit," Jesin explained. "Once the grievor's restrictions and his accommodation outside the bargaining unit became per- manent, the employer was en- titled to compensate the grievor at the level pertaining to the work he was performing — that is, it no longer was required to pay those items such as benefits, pension and the level of vaca- tion pay that he was paid for his bargaining unit position under the terms of the collective agree- ment." Reference: Waste Management of Canada and Teamsters Union Local 419. Norm Jesin — arbitrator. Mike Biliski for the union, Seann McAleese for the employer. June 25, 2014. < from pg. 1

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