Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2014 in sick in order to take time off for a trip to Las Vegas for his bachelor party. On Dec. 13, 2013, Bedi called in sick with a note from his doc- tor. Bedi told his doctor he had injured his back the day before while lifting boxes at home and was advised not to return to work before Dec. 17. Later that day, Bedi left with his brother for Las Vegas. He did not return to work again until Dec. 20. While three of the relevant days were Bedi's regularly scheduled days off, Bedi called in sick for the remainder of the time in question. On Dec. 19, the employer re- ceived an anonymous letter alleg- ing Bedi was not sick but in fact cel- ebrating his bachelor party in Las Vegas, citing posts to Bedi's Face- book page as evidence. Bedi had a public Facebook ac- count, meaning his pictures and posts were publicly available. Man- agement conducted a search of Bedi's page finding two posts and about 80 photos showing Bedi in Las Vegas visiting hotels, casinos, restaurants, bars and tourist sites. One of the posts — posted by Be- di's brother — reads in part, "Vegas tonight! Can't wait! Brother's bach- elor party is gonna be fun! OMG can't wait!" Bedi returned to work on Dec. 20, 2013. On Dec. 23, he met with management to discuss the situa- tion. The employer's investigation was ongoing, however, when Bedi left on his pre-arranged six week leave to India. Bedi was scheduled to return to work on Feb. 16, 2014. He called in sick, however, claiming jet lag. When Bedi returned to work on Feb. 21, he was interviewed a second time by management. Bedi maintained he was absent from work in December due to back pain. When confronted with evi- dence of his trip to Las Vegas, Bedi continued to deny any wrongdo- ing. Following the meeting, Bedi was dismissed without pay for fraudulently claiming and accept- ing benefit payments for sick ben- efits. The Amalgamated Transit Union Local 113 filed a grievance on his behalf, requesting Bedi be reinstated and claiming all lost wages as well as other appropri- ate remedies. Bedi claimed he did not know he couldn't travel while on sick ben- efits. He said he only went on the trip at the last minute because he began to feel better. He expressed remorse and promised a similar incident would never reoccur. Bedi also offered to return the money he wrongfully received through his sick benefit application. The employer, however, sub- mitted Bedi was intentionally fraudulent and dishonest. Bedi's dishonesty went to the root of the employment relationship and the employer asserted Bedi was justly terminated, requesting the griev- ance be denied. Arbitrator Owen B. Shime de- termined there was just cause to discharge Bedi, saying he engaged in a premeditated course of con- duct that was blatantly fraudulent. "His remorse was not spontane- ous and cannot be considered re- morse for his conduct in this partic- ular context," Shime said. "Rather it is remorse for losing his job." With no mitigating factors to convince him to exercise discretion on Bed's behalf, Shime dismissed the grievance. Reference: Toronto Transit Commission and the Amalgamated Transit Union Local 113. Owen B. Shime — arbitrator. Marni Tolensky for the employer, Carlo Di Giovanni for the union. October 2014. Union can't grieve individual benefit entitlement issues under Bell's STD plan: Arbitrator BeFoRe A unionized employee can take action against his employ- er, he must make sure he has the le- gal grounds to do so. In this case, Kenny Whyte, a craft and services worker at Bell Canada, filed a grievance after he alleged his employer refused to pay short-term disability ben- efits without just cause. Further, Whyte's union, Unifor, argued that any such denial of disability benefits was arbitrary, discrimi- natory and in bad faith. On the other hand, Bell brought a preliminary motion to have the grievance dismissed on the basis that its Income Protec- tion Plan (under which Whyte claimed the benefits) was not in- corporated under the collective agreement, and that in fact the case should be thrown out by the arbitrator, Diane Gee. To an extent, the company was right, Gee said. "I do not have jurisdiction to hear the grievance in so far as it relates to the grievor's individual benefit entitlement, but I do have jurisdiction to hear the grievance in so far as it alleges that Bell's admin- istration of the Income Protection Plan in connection with the griev- or's benefit claim was arbitrary, discriminatory or in bad faith," she explained. Bell provides short-term disabil- ity (STD) benefits to all of its em- ployees, whether they be unionized or not. The collective agreement stated the company would main- tain the program of benefits pro- vided under a list of plans, includ- ing income protection. But because the Income Protec- tion Plan is filed separately from the collective agreement, Gee said she was not at liberty to make a ruling. Bell self-insures benefits pro- vided under the Income Protection Program and employs Manulife as an agent to make its decisions as an agent of the company. The union's argument was, as Bell saw it, a "late re-characteriza- tion" of the first issue as opposed to seeking to expand the scope of the grievance. However, there are collective agreement terms that exist by way of implication. That is, where the terms of an agreement are be- stowed upon the discretion of one of the parties, it is implied that they will not be carried out in a way that could be considered in bad faith — during negotiations, neither a union or company would have ar- gued otherwise. Bell entered into the collective agreement and under it is required to provide short-term disability benefits to bargaining unit employ- ees. The terms of the Income Pro- tection Plan were not incorporated into the agreement and the union, as a result, cannot grieve individual benefit entitlement issues. Thus, Bell retains the respon- sibility for administering the plan and determines — as an exercise of its management rights — the con- ditions of eligibility. "It is simply not possible that, had the parties turned their minds to the question at the time of their negotiations, they would have agreed Bell could administer the Income Protection Plan in a man- ner that was arbitrary, discrimina- tory or in bad faith," Gee said in her decision. Gee ruled that the collective agreement implied Bell will not ex- ercise its management rights when administering the Income Protec- tion Plan in an arbitrary, discrimi- natory or bad faith manner. However, Gee went on to say she would have the jurisdiction to hear the grievance to the limited extent that it alleges the grievor's denial of benefits was the result of Bell hav- ing done so in an arbitrary or dis- criminatory manner. As such, she advised Unifor that the ball was in their court and the union can schedule further dates in connection with the matter if it so chooses. Reference: Bell Canada and Unifor. Diane L. Gee — arbitrator. Evan VanDyk for the employer, Micheil Russell for the union. Oct. 29, 2014. < from pg. 1 November 17, 2014 ArbitrAtion AwArds

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