Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2014 ArbitrAtion AwArds March 2, 2015 Fossum was then on medical leave and eventually given the go-ahead to return to work in April 2012 . The company's in- ternal processes, however, did not clear his return until late July 2012. The discharge was settled, but there remained a dispute as to the compensation owed. Hence this second grievance, filed by the Teamsters Canada Rail Conference union, which sought compensation for the time period Fossum was medi- cally cleared to work and when the company gave the green light. But CP Rail argued its em- ployee did not make an honest attempt to mitigate wage loss post-discharge. In 2010, Fossum began a side business — a coffee truck — to supplement income. However, as with most new ventures, Fossum said it was not until 2013 that he started to see profits. According to the union, Fos- sum's discharge led to a period of "depression, frustration and an- ger," that caused his business to slump and nearly go under. The Teamsters noted Fossum took out loans, sold his CP Rail stock, his car, and dipped into his line of credit. CP Rail said Fossum could have done more, pointing to Al- berta's fecund job market at the time. In her decision, arbitrator Christine Schmidt agreed, in part, and therefore ordered his compensation reflect the cir- cumstances. Fossum received compensa- tion for the period he was cleared medically to return to work and his actual return, in June 2014. But because he did not dem- onstrate a sufficient effort to secure other financial support, Schmidt reduced the grievor's wage compensation by 40 per cent, for his failure to mitigate, and any income from his busi- ness is to be subtracted from the total wage calculation. "By the spring of 2013, the grievor's game plan should rea- sonably have changed. Having regard to the economic climate in Calgary at the time, the grievor should have then begun a search for alternate employment," Schmidt said in her decision. "Had he done so with reasonable diligence, some of his losses after that point could probably have been avoided." reference: Canadian Pacific Railway Company and the Teamsters Canada Rail Conference. Christine Schmidt — arbi- trator. M. Moran for the company, M. Church for the union. Jan. 29, 2015. Bereavement leave causes grief The Canadian Merchant Services Guild filed both an in- dividual and a policy grievance against Algoma Tankers alleging the employer is paying only half of what the collective agreement mandates for bereavement leave. The grievances arose because of the way Algoma Tankers calculates compensation. The employer operates an inland shipping company on the Great Lakes of Ontario. Officers at the company work for 30 days on the vessel and 30 days off the vessel. Wages are calculated as "earn- ings per day worked." But be- cause employees spend approxi- mately half of their time off the vessels, half of the earnings per day worked are paid out while the employee is on the vessel and the other half is paid out while they are off the vessel. This allows employees to re- ceive wages every month, even though they are off duty for half the year. The employer and union refer to the actual amount of money paid out as the "calen- dar day rate paid," which is equal to one-half of the earnings per day worked. The grievances were filed af- ter Terry Holder, an officer with the company, took bereavement leave. The employer adminis- tered the bereavement leave pro- vision on the basis of the calen- dar day rate paid. Bereavement leave has been administered in this manner as far back as 1998. This is the first time the union has disputed the employer's in- terpretation of the bereavement leave. The union argued Holder's complaint was the first time an employee had taken issue with the way the employer was administering the leave. The union argued bereavement leave should be administered on the basis of the earnings per day worked. According to the union, the collective agreement promises to compensate bereaved employees at the "basic rate for time lost." The union asserted it is absurd for the employer to suggest "time lost" would be anything less than the value of the time the employ- ee would have earned if he had been on duty aboard the vessel. In other words, the earnings per day worked. In Holder's case, the union asserted he would have worked 120 hours on the vessel if he had not been on bereavement leave. However, because of the em- ployer's application of the leave in keeping with the 30 days on, 30 days off style of compensa- tion, Holder was credited only 60 hours for the leave. The union requested a dec- laration that the employer was violating the collective agree- ment by failing to properly credit employees for the leave and that Holder be credited with the 60 hours he was penalized. The employer, however, ar- gued nothing in the collective agreement promises employees who are on bereavement leave will be paid the amount he would have earned if he had been on the vessel. The collective agreement references a "base rate" which the employer argued more accu- rately refers to the calendar day rate employees are consistently paid. Furthermore, the employer argued the past practice of the parties can be used to resolve any ambiguity. The union is estopped from asserting this claim, the employ- er argued, because it has accept- ed the current administration of bereavement leave over several rounds of bargaining. Arbitrator Paula Knopf called the collective agreement "unusu- al" in its dealing with the specific demands of a 30 days on and 30 days off schedule. Knopf found the union was unaware of the employer's ad- ministration of the bereavement leave as no employee had com- plained. Therefore, the union was not estopped from seeking enforcement of the collective agreement. Concerning the payment of the leave itself, Knopf said, "It would be very unusual to see a collective agreement that pro- vided for such leave to be paid at a different rate or lower level than the normal daily earning. Therefore, one would expect to see very clear language to signal that bereavement leave would be paid at a rate different than what one would normally receive dur- ing a day of work." For this reason Knopf found the employer had been — al- though unintentionally — apply- ing the leave incorrectly. The employer was directed to compensate employees on future leaves on the basis of their total time lost at the rate of his basic earnings per day worked and Holder's grievance was upheld. reference: Algoma Tankers Limited and the Canadian Merchant Services Guild. Paula Knopf – arbitrator. Wes Newton for the employer, Joanne McMahon for the union. Feb. 4, 2015. < from pg. 1

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