Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 September 8, 2014 ArbitrAtion AwArds then requested to bump a part- time employee from the day-time shift on Saturday, and was denied a second time. Manager Amy Tulk testified Osbourne's requests were de- nied because Osbourne was not allowed to bump in an effort to change her days off. Tulk believed Osbourne was attempting to bump to have preference of shifts, which she said was not permitted under the collective agreement. Tulk said employees seeking preference of shifts have the op- tion to switch shifts at any time and can request a floating holiday up to three days in advance. General manager Greg Flem- ing testified that, during the 2009 round of collective bargaining, bumping was discussed as a meth- od for regular employees to guar- antee 40 hours of work each week. Fleming said regular employees scheduled for less than 40 hours are permitted to bump part-time employees to make up a full 40- hour week. Osbourne, however, testi- fied she had bumped part-time employees to have preference of shifts several times since discus- sions surrounding the practice were held in 2009. She argued the denial of her re- quest to bump in December 2013 was a violation of management rights. Osbourne said it was in- consistent and unfair to not allow her to do something she had prac- ticed for years. The Fish, Food and Allied Workers' union filed a grievance on Osbourne's behalf. The union submitted the employer had de- nied the collective agreement right that allows regular employ- ees to bump the shifts of part-time employees. Bargaining history and past practice allowed for the right to bump, it argued. Furthermore, the union argued the collective agreement did not set any preconditions regarding when bumping was allowed. Re- gardless of whether or not a dis- cussion about limiting bumping took place in 2009, the company did not approach the union to add language to the collective agree- ment stating that bumping would be limited to employees who needed additional hours to fulfill a 40-hour week. The effect of dismissing the grievance, according to the union, would be to render the agreement meaningless. The employer disagreed, argu- ing the evidence did not establish a longstanding practice to bump in order to have preference of shifts. Allowing the grievance would allow regular employees to bump any time they did not like their schedule. The employer request- ed the grievance be denied. Arbitrator James C. Oakley found the employer's interpreta- tion of the collective agreement would deny regular employees the right to bump, effectively adding language to the agreement. This change is unreasonable, Oakley ruled, as the evidence did not es- tablish any clear communication between the union and employer regarding limitations on bump- ing. "On the facts of this case, the employer violated the collective agreement when it denied the grievor's request to bump a shift of a part-time employee," Oakley said. The grievance was allowed and Oakley ordered the employer to cease and desist from the practice. Because the parties did not make submissions on the issue of en- titlement to compensation, Oak- ley reserved jurisdiction to decide any issue of compensation. Reference: City Hotels Limited (Ramada St. John's) and the Fish, Food and Allied Workers union. James C. Oakley — Arbitrator. Darren Stratton for the employer, Greg Pretty for the union. May 8, 2014. Rumours prompted unjustifiable transfer: Teacher BeiNG THe NeW kid on the block can be difficult for students — but for teacher Tim Worthy, it proved to be just as tough. Worthy filed a grievance through his union, the Elemen- tary Teachers' Federation of On- tario, regarding a transfer from one school to another under the Limestone District School Board in Kingston, Ont. The board transferred Wor- thy from Welborne Avenue Pub- lic School, where he had taught for six years, to Truedell Public School. As a teacher with the district for 26 years, Worthy maintained a long commendable employment record and consistently received positive performance apprais- als throughout his career and had never been subject to discipline. When he was assigned to a Grade 7 class during the 2013- 2014 academic year, a parent of a student made a complaint about Worthy, relating to interactions Worthy had with his son in the schoolyard. The complaint was forwarded to the Children's Aid Society and, after a lengthy investigation, the agency concluded that, "there was not sufficient information to verify that the students that Mr. Worthy engages with are at risk of physical harm or emotional harm." Subsequent to the report, the school board conducted its own, separate investigation and inter- viewed additional teachers and staff. Again, there was no evidence of misconduct that would warrant disciplinary action. However, the school board de- cided to transfer Worthy to True- dell for the commencement of the 2014-2015 school year, advising both the union and teacher that the move was not a disciplinary one. Despite this, Worthy and the federation filed a grievance, argu- ing that not only was the decision to transfer discriminatory, but it was done without just cause. Furthermore, the union argued that, in this case, the court of pub- lic opinion would mean the deci- sion and any such transfer would have caused serious reputational harm. "Even if the school board did not intend to discipline the griev- or, the circumstances in which the transfer was imposed, in the wake of a Children's Aid Society investigation into a parent com- plaint, supported an inference of discipline by reason of the conse- quences to Worthy's reputation among his colleagues and in the parent community," the union ar- gued. But the move (a lateral one) was done in Worthy's interest, the school board maintained. "It would give him an oppor- tunity to extract himself from the situation that had developed at the Welborne school and provide him with a fresh start at a new school," the board said during the hearing. "If he remained at the Wel- borne school, he would be sus- ceptible to other accusations and might be a target of parent com- plaints." In his ruling, Norm Jesin de- cided to issue his conclusion with- out commenting on whether the transfer, effectively, is disciplinary. Instead, he looked at the col- lective agreement to determine whether the board had the discre- tion to facilitate the transfer under the collective agreement. It did not. Because the students involved in the investigation had moved on to secondary schools, the board's rationale for transferring Worthy no longer applied, Jesin said. Therefore, he ordered the grievor be given the option, at the end of the 2014-2015 school year, to either return to Welborne or re- main at Truedell. Reference: Limestone District School Board and the Elementary Teachers' Federation of Ontario, Limestone Local. Norm Jesin — arbitrator. Vince Panetta for the employer, Cynthia Petersen for the union. Aug. 22, 2014. < from pg. 1

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