Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2014 December 15, 2014 ArbitrAtion AwArds between Walter Energy's Willow Creek Coal Partnership and the Construction and Allied Workers Union ran from 2010 to 2013. The days to be observed as holidays were specifically listed and limited to New Year's Day, Good Friday, Victoria Day, Canada Day, B.C. Day, Labour Day, Thanksgiving Day, Remembrance Day, Christ- mas Day and Boxing Day. But when the B.C. Family Day Act was implemented back in 2012, it also amended the Em- ployment Standards Act by add- ing Family Day to the definition of "statutory holiday." In 2013, Walter Energy did not observe Family Day. This spawned a grievance from the union, which argued its workers were entitled to the day off and, if not that, then the appropriate compensation un- der the collective agreement. Had the union gotten its way, staffers would have received time and one- half for working on Family Day, as they would have on any other stat- utory holiday. According to the Employ- ment Standards Act, if a collec- tive agreement contains a statu- tory holiday provision, then the named statutory holidays of the ESA will not apply. Essentially, a collective agreement might over- ride a provision of the ESA that has otherwise already been in- cluded in the contract. This, however, requires a spe- cific modification. The ESA now includes Family Day, and there was no specific modification in this particular agreement. "Therefore, it is wholly artificial to assert that the parties made a specific modification to this new obligation before it even came into existence," the union said. However, Walter Energy main- tained it abided by the collective agreement. Only a written agree- ment between both parties would have the power to alter the con- tract, and since that did not hap- pen, Family Day need not have been compensated for. Furthermore, the agreement named Boxing Day as a holiday, which was considered an extra day off. At the time of ratification, the ESA had only named nine holi- days, one less than the collective agreement. In the employer's view, its workers were receiving a bonus day off in its stead. In making his decision, Brown took into account the direct meaning, rather than the in- tended meaning, of the collective agreement. In the case at hand, the parties incorporated ESA-named holi- days into the collective agreement, save for the provisions specifically modified by the contract, Brown noted. By amending the number of statutory holidays in the collec- tive agreement — that is, includ- ing Boxing Day — the parties spe- cifically modified it. Therefore, the ESA obligations did not apply. "In agreeing to a modification, rather than having the ESA apply, the parties could have negotiated a provision to include any future statutory holidays enacted by the government, as many collective agreements do," he added. Both the ESA and the collec- tive agreement currently contain the same number of holidays, and therefore, the grievance was dis- missed. Reference: Willow Creek Coal Partnership (Walter Energy) and the Construction and Allied Workers Union Local 68. Mark J. Brown — arbitrator. Stephanie Vellins for the employer, Tim Charron for the union. March 6, 2014. toronto employee accuses City of toronto of harassment, discrimination based on race PHIL eDWARDS — suspended by the City of Toronto for payroll irregularities and issues of per- formance and insubordination — filed grievances against his em- ployer alleging the city engaged in a pattern of discriminatory and harassing behaviour towards him. Through his union, the Cana- dian Union of Public Employ- ees (CUPE) Local 79, Edwards grieved both the imposition of a 10-day suspension on April 16, 2012, as well as his notice of trans- fer to a new community centre, which took place eight days later. On March 30, 2012, Edwards — a community recreational programmer with Oakdale Com- munity Centre — met with man- agement to discuss a number of performance issues and payroll irregularities. Of particular concern to the employer was the fact that, on sev- eral occasions, Edwards instruct- ed another employee to pay pro- gram costs using her own money. Edwards told the employee he would reimburse the costs by giv- ing her additional hours in the employer's payroll system. He was placed on a paid leave of absence while the employer conducted an investigation. On April 16, the employer is- sued a 10-day suspension. On April 24, Edwards was notified he would be transferred from his cur- rent position at the Oakdale Com- munity Centre to the O'Connor Community Centre. At the time, Edwards had no disciplinary re- cord. According to the union, the 10-day suspension was without cause or, at a minimum, excessive. The union argued several misde- meanours the employer failed to previously address were suddenly piled on to justify the severity of a suspension. Furthermore, the union submitted the transfer was disciplinary, unreasonable and discriminatory. Edwards took the position that the suspension and transfer amounted to discrimination and harassment, arguing this treat- ment was on the basis of race and colour. Edwards is a black man and he submitted that was a factor in his treatment by the employer. The employer, however, ar- gued aspects of Edwards' actions amounted to misconduct bor- dering on fraud. His transfer was well within the rights of adminis- trative action and had been mo- tivated by nothing more than the desire to provide employees with a range of work and mentorship opportunities. The allegation of racial dis- crimination was characterized by the employer as hurtful, prepos- terous and, ultimately, indicative of Edwards' lack of credibility and judgment. Not entirely credible Arbitrator Dana Randall agreed Edwards was not an entirely cred- ible witness, saying, "I have no dif- ficulty finding that the grievor's own evidence, with respect to many of the allegations against him, is suspect. He is poor at tak- ing responsibility for his own shortcomings and quick to blame others… he changed his position so many times in order to rebut the mounting evidence mar- shalled against him by the em- ployer that he lost a great deal of credibility." Data from the employer's pay- roll system proves Edwards sub- mitted undocumented hours for his fellow employee. There were a total of 15 such hours for which the employee was paid, which she neither worked nor claimed. Because of the evidence and be- cause of Edwards' "cavalier" atti- tude to the payroll system, Randall sustained the 10-day suspension. However, Randall also found evidence that the employer's deci- sion to transfer Edwards was a "di- rect result" of the same investiga- tion that led to his suspension. "The grievor's misconduct had to be corrected and transfer- ring him to O'Connor… was part of the employer's response," Ran- dall added. Finally, Randall did not find any evidence supporting a finding that Edwards was treated differently by the employer because of his race or colour and so the allega- tions of discrimination based on race and colour were dismissed. Reference: City of Toronto and the Canadian Union of Public Employees Local 79. Dana Randall — arbitrator. Amandi Esonwanne for the employer, Douglas Wray for the union. Nov. 25, 2014. < from pg. 1

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