Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2014 ArbitrAtion AwArds November 10, 2014 crimination or wrong doing by the university and claimed the denial of their applications con- tributed to a pattern of discrimi- nation. The University of Prince Ed- ward Island Faculty Association filed grievances on Bartmann and Wills' behalf. The association requested a ruling of punitive damages, an order for a sabbati- cal and other paid leave for both grievors as well as further rem- edies that would provide "full re- dress." Both Bartmann and Wills filed complaints with the PEI Human Rights Commission after being forced into retirement. Prior to the fall of 2013, Bartmann had never applied for a sabbatical leave in his 26 years as a profes- sor. Wills completed sabbatical leaves in 1994-1995 and 2001- 2002 but was denied sabbatical leaves in 2010 and 2011, following his human rights complaint and subsequent reinstatement. Both grievors received similar reasons for their sabbatical denial. Pursuant to the collective agree- ment, UPEI's dean forwarded Bartmann and Wills' applications — along with others — to the vice president academic (VPA), who then forwarded the applications to the university's board of gover- nors. While the dean recommended all of the submitted applications be approved, the VPA recommended Bartmann and Wills' applications be denied. The board of governors voted to accept the recommenda- tions of the VPA for all of the 2013 sabbatical leave applicants, in- cluding the denials for Bartmann and Wills. The association argued there was an agreement amongst some members of the board that profes- sors who had filed human rights complaints had "made things hard for the university," and that the board was not favorable to those individuals. The employer countered it was typical for the board to unani- mously accept the VPA's recom- mendations. The human rights complaints of the two grievors were "not a consideration at all," the employer said, arguing the VPA took into account only the quality and feasibility of each ap- plicant's plan. While the association agreed a standard should be applied to ap- plications for sabbatical, it argued the standard must be applied in a fair and consistent manner. The association argued the surround- ing facts made clear the employer was discriminating against em- ployees who filed complaints against the university. The only two faculty members whose sab- batical applications were denied for 2014-2015 were Bartmann and Wills, both of whom had filed human rights complaints against UPEI. In the previous year only two applicants were denied the same paid leave, also faculty mem- bers who had filed complaints against the university. The association's claim of dis- crimination and retaliation was a serious one, said arbitrator Robert D. Breen, and one that called for a strong standard of clear and co- gent evidence. While there may be certain "doubts," Breen said, he was not satisfied the surrounding facts in this case were sufficient to dis- credit the sworn and tested evi- dence of the employer. Considering, then, only the re- quirements for a sabbatical leave expressed under the parties' col- lective agreement, Breen found no issue with the employer's denial of Wills' application. Wills' grievance was dismissed. The denial of Bartmann's ap- plication — his first in 26 years — however, was found to be inconsis- tent with the collective agreement as well as the university's acknowl- edged support for regular sabbati- cal leave. Breen ordered Bartmann's grievance be allowed and that a 12-month sabbatical leave oppor- tunity be presented by UPEI. Reference: The University of Prince Edward Island Board of Governors and the University of Prince Edward Island Facul- ty Association. Robert D. Breen — arbitrator. Murray Murphy for the employer, Donald Keenan for the union. Sept. 2, 2014. Rail worker derails safety, but termination excessive a LOCOMOtiVe engineer was fired after he improperly parked and then abandoned his train. Rob Hewitt, a locomotive engi- neer at the Canadian Pacific Rail- way Company, was fired after 29 years of service. Hewitt and his crew departed Smiths Falls, Ont., bound for To- ronto. Should they fail to make To- ronto's outer switch limits within 10 hours, the collective agreement dictates that the crew would be re- lieved. But if the train did cross that threshold, the crew would be re- quired to yard the train as directed. The train reached the Toronto yard just after 3 a.m. Hewitt was instructed to yard the train. Although it was long enough to accommodate the whole train, Hewitt stopped the train short. The supervisor on duty prompted Hewitt over the radio and then asked him about his non- compliance with the instructions. When prompted, he told his supervisor he did not follow in- struction because he was refusing unsafe work. The employer inves- tigated the incident and Hewitt was fired. The employer argued that ter- mination was warranted. Hewitt had deliberately refused to fol- low instructions on yarding his train. He abandoned his train with the result that emergency access routes were blocked and a number of trains were delayed. He then left company property without proper authorization. The Teamsters union argued that the company had failed to conduct a fair and impartial in- vestigation according to the terms of the collective agreement. The union said that the discipline should be declared null and void. In his decision, arbitrator Mi- chel Picher disagreed, saying that termination was excessive in view of Hewitt's long service, however, discipline was warranted. "A review of the facts leaves the clear impression that the grievor was engaged in a degree of game playing when he abandoned his train. While I accept that [Hewitt] and his crew were suffering from fatigue, it appears that in fact the grievor proceeded under the im- pression that he could unilaterally cease all work after the expiry of 10 hours. I simply cannot agree. The right to refuse unsafe work under the Canada Labour Code is an ex- tremely important employee pro- tection. The invoking of that right involves a commensurate obliga- tion on the part of the employee involved to be clear and methodi- cal in the manner in which a work refusal is undertaken and execut- ed. At a minimum, the employee must make a clear declaration of a refusal and assure himself that the employer well understands that the code is in fact being invoked." That did not happen in this case, the arbitrator said. "In the circumstances at hand... they simply did not make a clear and unequivocal declaration to the effect that they were refusing unsafe work under the protec- tions code. Nor is it clear that the grievor and his crew would have been unable to operate their train for a matter of a few more minutes to yard it as instructed rather than leave it in a location which obvi- ously impeded yard operations and the movement of other trains." In the circumstances, the ar- bitrator said that Hewitt and the crew should have observed the "work now, grieve later" principle and taken the extra few minutes it would have taken in order to yard the train as ordered. The arbitrator said that Hewitt seemed more intent on making a statement of principle rather than addressing a legitimate safety haz- ard. Hewitt's actions exposed him to a very serious level of discipline, Picher said. As such, Hewitt was reinstated on a last chance basis, but was not compensated for lost wages. Reference: CROA No. 4180. Canadian Pacific Railway Company and Teamsters Canada Railway Conference. Mi- chel G. Picher — arbitrator. < from pg. 1

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