Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 September 22, 2014 ArbitrAtion AwArds required to perform the duties of his former job for three or four days a week for a period of five weeks — without being under the jurisdiction of the collective agreement. The local Unifor chapter filed a grievance, arguing that legally an employer is not permitted to have a non-bargaining unit employee perform bargaining unit work to such an extent. As a result, Sanofi's actions trig- gered "implied prohibition" on an employer's ability to have bargaining unit work performed by those outside of the member- ship. Unifor cited a clause in the collective agreement that pro- hibited doing as such. The union sought compensation for the dues it would have been paid — which totalled $79 — had the worker been a regular dues- paying employee for those five weeks. "The employee performed all of the duties of his former bar- gaining unit position, not just some, for the majority of the days of each week for five successive weeks," Unifor said. On the other hand, Sanofi ar- gued that no good deed goes un- punished. The employer argued it had the employee start in his new po- sition five weeks before his for- mer department could fully bear the full operational needs. While the amount of work is not up for dispute, Sanofi said the propor- tion and context of the work war- ranted its actions. "(We are) in the business of manufacturing life-saving vac- cines, (we) do not operate a paint line…Errors can be extremely costly and expertise in the per- formance of the work is of the ut- most importance," the employer said, adding that training takes time and the employer was cop- ing with a shortage of trained personnel. In his decision, arbitrator Rus- sell Goodfellow agreed with Uni- for. First, the period of time was more than incidental — it was substantial. "The driving force behind this seemingly unusual arrange- ment was not, as the employer's contextual arguments appear to have been intended to suggest, the production needs of the em- ployee's former department but a desire on the part of the em- ployer to enhance the employee's income earning opportunities for the coming year," Goodfellow said. In this case, the collective agreement did not permit the employer to place its seemingly well-intentioned desire to en- hance the employee's earning opportunities and have him be- gin his new position earlier than needed. Goodfellow upheld the griev- ance and ordered Sanofi com- pensate Unifor for the dues it was denied. Reference: Sanofi Pasteur and Unifor Local 1701. Russell Goodfellow — arbitrator. John Mastoras and Naomi Shawn for the employer, Jesse Kugler for the union. Sept. 3, 2014. teacher grieves suspension relating to sexual assault A MAnItoBA teACheR filed grievances against the St. James-Assiniboia School Divi- sion in Winnipeg after he was suspended without pay pend- ing the resolution of criminal charges filed against him by a colleague. The grievor, a high school physical education teacher with 12 years of seniority, was charged with sexual assault causing bodi- ly harm on Aug. 1, 2013. After being charged, the grievor was released by police on a promise to appear in court. He pleaded not guilty and his case is current- ly pending a decision. When the employer was made aware of the criminal charge by the complainant — an educa- tional assistant employed by the division at another school — the grievor was suspended without pay pending resolution of the al- legations in court. The grievor and the complain- ant's accounts of the incident dif- fer, but a medical examination of the complainant following the June 8, 2013, incident reported a right thumb and wrist hyper- extension injury, left wrist strain and lower back strain. The complainant wore wrist splints for several weeks after the incident. Two months after, having received the Crown's opinion, police laid a charge against the grievor and urged the complain- ant to inform her employer. Following an investigation, the board of trustees suspended the grievor without pay on Aug. 29, 2013. Both the grievor and the St. James-Assiniboia Teachers' Association filed grievances, requesting the suspension be overturned and all references to it removed from his personnel file. The grievor also sought full compensation, emphasizing that the incident happened outside of school and so did not affect his employment. The employer said suspension without pay was necessary not only to ensure the safety of both students and female staff but to protect public confidence in the school. Taxpayers, the employer argued, would not accept retain- ing a teacher charged with a vio- lent sexual offence pending his trial. The union denied there was any demonstrated risk to staff or students and argued the grievor could have been accommo- dated with an alternate assign- ment that would have met any perceived safety or reputational concerns. At the minimum, the union said, any suspension that might be justified should be with pay. Arbitrator Arne Peltz, how- ever, found it "difficult to coun- tenance" a teacher continuing to work closely with students while facing a sexual assault charge. "This kind of criminal charge is so antithetical to everything a school division represents that on balance, the employee's in- terest in his livelihood must give way to the division's interest in offering a learning environment free from harm, and being seen as maintaining this vital stan- dard," Peltz said. Peltz found it was clear on the employer's evidence that no ex- isting alternate placement was available for the grievor when the decision was made to sus- pend him. While Peltz found suspension to be appropriate in the circum- stances, he said a suspension may need to be imposed with pay to avoid unfairness. "Both employer and employee have legitimate interests," Peltz explained. "If convicted, he will face the weight of the law, and even if acquitted he may be sub- ject to discipline by the division. In the meantime, he is presumed innocent and should not be de- prived of his pay unless the divi- sion can establish the necessity for doing so." Peltz allowed the grievance in part, ordering the grievor remain suspended but ruling he is enti- tled to receive pay retroactive to the date of his suspension. Reference: St. James-Assiniboia School Division and the St. James-Assiniboia Teachers' Association of the Mani- toba Teachers' Association. Arne Peltz — arbitrator. Kris Gibson for the employer, Tony Marques for the union. June 27, 2014. < from pg. 1

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