Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 October 14, 2014 ArbitrAtion AwArds Learning and implementing the new software was a mandatory requirement for all teachers at the college, which provided training sessions in the summer in order to have the program fully functional in time for the start of the fall se- mester. The training was comprehen- sive, but not without its challenges (to which both parties attested). A two-day professional develop- ment session never materialized, training was delayed, and data was lost and had to be re-uploaded. That said, approximately 34 total training sessions were held for the 120 faculty members over the course of the summer. As such, three teachers, Lor- na Connolly-Beattie, Gabriella Doleske and Judi Gough filed a grievance alongside the Ontario Public Service Employees Union, saying that though they were only three, all 120 faculty should be compensated accordingly. All three claimed they spent from one to 15 additional hours training on the new software. "Despite the best efforts of the IT department, the rollout of the new program was not as smooth as had been anticipated," the union said, adding that the work required the teachers go "above and beyond their usual duties dur- ing their non-teaching time, and that they should be compensated for the time spent." As OPSEU saw it, the collective agreement stipulated any work related to teaching undertaken by "mutual consent" would not be paid as long as it kept within the confines of professional respon- sibility. In this instance, that "mu- tual consent" was not present. Rather, the union pointed to another clause, which said that atypical circumstances would warrant additional hours of pay on an hour-for-hour basis. But Sault College argued that, in order for time to be attributed for such a case, there must be an assignment of particular work during the actual teaching period. Here, all training was assigned and completed before school started. Further, nothing about the assignment could have been deemed "atypical." "For an assignment to be atypi- cal, it must be something unusual or different, and that was not the case here," the college said. "Rather, in this instance, all teach- ers were required to utilize a par- ticular software system to deliver an educational component of the program." In making her decision, arbi- trator Tanja Wacyk determined that the teachers were adequately compensated for their training time – regardless of whether that took some teachers longer than others. The question, then, was whether the circumstances were "atypical." "The functions of making course outlines available and dis- tributing grades at the end of the course are clearly a consistent, integral part of teaching a course and part of the usual educational duties and responsibilities gen- erally associated with a teach- ing position," Wacyk concluded. "The only thing different in this instance was the tool utilized to perform those functions – but the functions themselves remained the same." As such, the grievances were dismissed. Reference: Sault College and the Ontario Public Service Employees Union, Local 613. Tanja Wacyk — arbitrator. Wallace Kenny for the employer, Donna Alexander and Lynn Dee Eason for the union. Sept. 24, 2014. poor attendance leads to loss of position thE CANAdIAN UNION of Public Employees (CUPE) Local 1485 filed a grievance against In- verary Manor after the employer failed to award Patricia Gale with a temporary full-time position. Inverary Manor is a residen- tial, long-term care facility in In- verness, Cape Breton Island, Nova Scotia. Its elderly residents re- quire personal care and supervi- sion on a twenty-four-hour basis. Employees within the bargain- ing unit represented by CUPE Lo- cal 1485 include dietary workers, environmental service workers, maintenance workers, cooks and continuing care assistants (CCA). The employer has a long-stand- ing practice of making a regular and consistent attendance his- tory a condition or consideration in job offers. A formal Attendance Management Program (AMP) was introduced in 1992 and at the same time the decision was made to make regular and consistent at- tendance a mandatory aspect of job requirements. Gale, a CCA with the employ- er, was counseled about her at- tendance in November 2011 and April 2012. The employer eventu- ally decided to monitor her atten- dance pursuant to its AMP. In late 2012 Gale requested an increase in her hours on a tempo- rary basis. Management denied her request, responding in a letter that her "past attendance here at Inverary Manor has been an issue and has been addressed by man- agement and granting you this increase would only set you up for failure." On Sept. 3, 2013, a temporary full-time position became avail- able following the resignation of another employee. Gale applied but was not selected for the posi- tion because she "had not demon- strated regular and consistent at- tendance, which is a requirement of the job." The union filed a grievance on Gale's behalf, seeking she be placed in the temporary full-time position. However, because Gale improved her attendance record following her application for the position in September, her hours were increased in November 2013 and in March 2014 she was re- leased from the monitoring pro- gram. At the end of that month it was confirmed she would take over a full-time position effective Aug. 2. At the hearing the union dropped its demand she be placed in a temporary full-time posi- tion and sought compensation for the period of time that Gale would have been in the full-time position had she been awarded the position in September 2013. The union argued the employer's insistence on an additional con- dition of "regular and consistent attendance" was unreasonable and unconnected with the actual requirements of the position. The employer, however, argued regular and consistent attendance was a reasonable requirement of any job, and it was especially true at the Manor. Residents required continuity of care, which could not be provided if CCAs were constantly changing due to ab- sences. Furthermore, the employer argued the union's failure to ever grieve the addition of the require- ment on job postings for the past two decades was an implied if not an express representation that it agreed regular attendance was necessary for employment at the Manor. The employer submit- ted the union was estopped from objecting to the requirement during the currency of the collec- tive agreement and requested the grievance be dismissed. Arbitrator Augustus Richard- son agreed regular and consistent attendance is a basic requirement for any employment contract. Richardson also agreed the union — although not expressly — agreed with the employer's de- cision to include attendance as a job requirement, citing the two decades of practice and conduct between the parties. As such, he ruled the union in this case is estopped from objecting to the requirement and dismissed the grievance. Reference: Inverary Manor and the Canadian Union of Public Employees Local 1485. Augustus Richardson — arbitrator. Noella Martin for the employer, Wanda Power for the union. June 23, 2014. < from pg. 1

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