Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 September 15, 2014 ArbitrAtion AwArds grievance. What is relevant is that Ing and Cruz were charged and convicted (despite pleading not guilty) and received a one-year conditional sentence. As a result, they were sus- pended without pay, as per the collective agreement and Police Services Act. Both appealed the issue and, under the same clause, remained on suspension without pay pending the outcome of the trial. A judge dismissed the charg- es, and the officers petitioned the board for reimbursement of lost wages during the suspension, which the police board refused. The Toronto Police Associa- tion filed a grievance, arguing both officers were entitled to com- pensation because not only were the criminal charges dismissed (thereby rendering the initial sus- pension obsolete), but a police of- ficer's compensation should not be dependent on duties performed. Since Ing and Cruz maintained their police officer status, some- thing the association argued was a public office, they were entitled to compensation for lost wages. "As a matter of fact and law, there was no conviction, no custo- dial sentence, and now no statuto- ry or other basis for a suspension without pay," the police associa- tion argued. "While the suspension with- out pay was once valid, once the factual and legal basis for it dis- appeared, Ing and Cruz had to be put back in the position that they would have been in absent a con- viction and custodial term." Essentially, they were entitled to compensation for the period of time when they had been de- prived of their income. However, the police board dismissed the association's argu- ment that police hold public of- fice, and are therefore entitled to compensation no matter what. A collective agreement need not be negotiated otherwise, and officers are and should be treated as em- ployees. "Neither police officer could provide any services to the board while under suspension and there was no basis to compensate so long as the suspension was val- idly in effect," the board said. "As unionized employees, they were subject to the same overriding le- gal regime as anyone else." That the charges were dropped was of no consequence as both of- ficers lost pay for a period during which they were justifiably sus- pended under the law. In his decision, arbitrator Wil- liam Kaplan sided with the asso- ciation and upheld the grievance and ordered both officers be re- munerated. Without a doubt, he said, the board did nothing wrong in sus- pending the officers initially. However, circumstances changed. It would not have been fair for police officers charged with a crime to receive compensa- tion pending trial, but those that should never have been charged in the first place should not be penal- ized. "On what basis could it be fair for Ing and Cruz to individually bear the economic burden of in- nocence?" Kaplan said. "Entitle- ment to compensation must de- pend on the ultimate dispositions of the case. If there is no convic- tion and custodial term at the con- clusion of the legal process, there is no authority to suspend without pay." Reference: Toronto Police Services Board and the Toronto Police Association. William Kaplan — arbitrator. Michael Hines for the employer, Anne Cumming for the union. Aug. 29, 2014. Saskatchewan paramedic's career resuscitated dARRen GRindheiM, a pri- mary care paramedic, was termi- nated by Northeast EMS when he called in sick after being denied a request for a day off. One year after being hired by the Saskatchewan-based em- ployer, Grindheim's wife was killed in a motor vehicle accident, leaving him to raise his two young children. Grindheim testified the assistance of caregivers and nan- nies was not a luxury, but rather a necessity. In early 2011, Grindheim was in the process of hiring a new nanny. The nanny arrived in Saskatoon from the United States on Satur- day, Feb. 12, 2011, but the paper- work was not in place to allow her to stay in the country. The border services agency gave the nanny a seven-day per- mit. On the Sunday and Monday that followed, Grindheim made efforts to resolve the permit issue. When it became clear this was im- possible, he began making travel arrangements to return the nanny to the U.S. On Monday, Feb. 14, Grind- heim was able to book a flight for the following day. He called his su- pervisor, Jessica Taylor, to explain he would not be at work the next day. Grindheim testified Taylor called him back shortly thereafter to inform him Lyle Moffatt — the owner and general manager — had denied his request. Grind- heim was instructed to be at work the next day. Grindheim testified he was un- der an incredible amount of stress dealing with arrangements for the nanny to return to the U.S. He said he had a sleepless night and, on the morning of Tuesday, Feb. 15, he was suffering from a headache and what felt like a "big, bad cold" coming on. At 7 a.m., Grindheim called Taylor to book off sick for the day. She informed him he could not book off sick and advised him to call Moffatt. Grindheim left a message in- forming Moffatt he was sick and would be booking the day off. Af- ter taking some cold medication Grindheim dropped his children off at school and took the nanny to the airport. In cross-examination, Grind- heim testified his absence from work on Feb. 15, 2011, had noth- ing to do with taking his nanny to the airport but was because he felt sick enough that he should not at- tend work. The employer, however, did not believe Grindheim was sick. Mof- fatt testified he no longer trusted Grindheim, arguing there was no evidence he had been seen by a physician for his alleged sickness. On Feb. 24, Moffatt called Grind- heim into his office and fired him for insubordination and fraud. The Health Sciences Asso- ciation of Saskatchewan filed a grievance on Grindheim's behalf, arguing his involvement with the union was the real reason behind his firing. At the same time Grindheim was trying to find a new nanny, he became heavily involved in efforts to organize the workplace. The Health Sciences Association of Saskatchewan formed a bargain- ing committee in January 2011 and embarked on a tumultuous series of bargaining meetings. The union requested Grind- heim be reinstated and made whole for any losses. While arbitrator William F.J. Hood agreed abuse of sick leave can be comparable to employee theft in its impact on the employ- ment relationship, he ruled the employer's claims of fraud and theft were blown out of propor- tion. Hood said he sympathized with Grindheim's moral and practical obligation to get the nanny back to the United States, but found it did not justify his missing work that day and disobeying the direction from his employer. Hood ruled Grindheim's failure to report to work was misconduct and deserving of discipline. Due to mitigating circumstanc- es such as Grindheim's relatively long service and discipline-free record, however, Hood found dis- missal to be excessive. The termination was ordered set aside and substituted with a one-day suspension without pay. Hood also ruled Grindheim be made whole for the loss of pay and benefits resulting from the firing. Reference: Medstar Ventures Inc., carrying on business as Northeast EMS and the Health Sciences Association of Sas- katchewan. William F.J. Hood — Arbitrator. Gordon D. Hamilton for the employer, Marcus R. Davies for the union. Aug. 28, 2014. < from pg. 1

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