Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2015 February 9, 2015 based on a call-in and assignment rubric. A problem arose when Nagra applied for vacation leave, but was informed by a supervisor he must be available for work beginning Dec. 7. Both parties agreed. However, when he was called for shifts between Dec. 9 and Dec. 13, Nagra was not available. Af- ter leaving several voicemails, he reached out to his supervisors and informed them he was sick. He was told he was assigned a shift for the following day and then informed his supervisor he was in India visiting his parents. He did not return until Dec. 26, and was subsequently fired. Nagra said he had gone to India, as he had scheduled his vacation, but then became ill and had to stay at a hospital in a village near his parents' house, which had insuf- ficient cellphone service. According to the union, the termination was excessive and unwarranted. Unifor called the situation a planning and commu- nication breakdown. "This was not a pleasure trip but a family responsibility em- barked upon after sorting out competing and conflicting de- mands of his parents and his fam- ily," the union argued. "While Nagra was guarded with information and not com- pletely forthright with the em- ployer, he was not deceitful about his plans, his travel or his illness. He returned as soon as he was able to travel." But Whistler Transit disagreed, calling Nagra's story farfetched. And even if the story was accu- rate, the employee could have been more forthcoming. "All operators know they must be available for work on all days if they are spare board operators. The employer cannot operate if operators take time off as they wish and schemes to take time off as they wish cannot be tolerated," the transportation company said during the hearing. Arbitrator James Dorsey agreed with Whistler Transit and concluded Nagra was dishonest when planning the trip. "I find it was not an illness, but a deliberate plan that was the rea- son for Nagra's failure to be avail- able for work on Dec. 9 and during that week," Dorsey said in his deci- sion. Therefore, the company had just cause to terminate its staffer, and the grievance was dismissed. Reference: Whistler Transit and Unifor Local 114. James E. Dorsey — arbitrator. Harry Moon for the union, Larry Page for the employer. Aug. 29, 2014. Sabbatical request repeatedly denied the fACULty Association of the University of St. Thomas filed a grievance against the New Brunswick university after Thom- as Parkhill was denied sabbatical leave for a second time. The union alleges the univer- sity's reasons for denying the leave to Parkhill — a faculty member and a tenured full professor in the department of religious studies — were "speculative and prejudi- cial." The denial was in violation of the full and fair consideration clause of the parties' collective agreement, the union argued, and it requested Parkhill be granted a sabbatical leave for the year July 1, 2015, to June 30, 2016. In her letter denying Parkhill's request for a 2014-2015 sabbati- cal, the university's president and vice-chancellor, Dawn Russell, wrote, "Since you have provided no evidence of a recent schol- arly publication, the concerns I expressed in the attached letter persist about whether you will produce the actual scholarly work which you propose in your most recent sabbatical application." The letter Russell referenced was her denial of Parkhill's pre- vious request for a 2013-2014 sabbatical. In that instance, Rus- sell wrote she required Parkhill to provide evidence of a recent scholarly publication before she was prepared to grant his request. According to the university, Parkhill offered no evidence of recent publications and in fact had not published anything since 2001. This stood in stark contrast with the rest of the faculty, as the university reported the average rate of publication for a faculty member was 1.5 submissions an- nually. The university argued a sab- batical leave is not automatically granted. The right of assessment rests in the hands of the president, subject to a reasonable test of re- view. The union, however, argued the university used Parkhill's request as a tool for performance review and correction. At no point in time, Parkhill testified, did he ever receive any expression of concern about his work or the frequency of his pub- lications. The only feedback he did get, in his annual reports, was positive. Parkhill testified that, if granted a sabbatical, he was confident he would complete his work. While he admitted he had not published anything in recent years, Parkh- ill said that lull was the result of a "poisoned workplace." Issues within the department of religious studies affected Parkhill personally, he said, and pulled his focus from his research. Further- more, the union argued, a sab- batical leave can be achieved in a number of ways and there is no minimum publication require- ment. The university submitted Rus- sell addressed the issue of pub- lishing only because publishing was what Parkhill focused on as the determining issue of both of his recent requests for sabbatical leave. Russell did not use the request for leave as a form of performance review, the university argued, but undertook a fair assessment of whether or not Parkhill was ca- pable to completing the proposed work. "It is this arbitrator's finding," ruled Robert Breen, "that the challenged decision of the presi- dent, whose testimony I found straightforward, plausible, with- out discriminatory or arbitrary intent, and not unreliable on the evidence, was nonetheless not proper in terms of the collective agreement, and thus unfair." The grievance was allowed and the university ordered, in rem- edy, to grant a sabbatical leave to Parkhill for the academic year July 1, 2015, to June 30, 2016. Reference: St. Thomas University and the Faculty Association of the University St. Thomas. Robert D. Breen — arbitrator. Jamie Eddy for the employer, David Mombourquette for the union. Sept. 24, 2014. ArbitrAtion AwArds According to the university, Parkhill offered no evidence of recent publications and in fact had not published anything since 2001.

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