Canadian Labour Reporter

March 23, 2015 8 Canadian HR Reporter, a Thomson Reuters business 2015 employer's property, it posed a serious risk to public safety. Due to the seriousness of the theft, Meilleur was banned from at- tending the workplace in addi- tion to his dismissal. Meilleur's union, the Interna- tional Union of Operating Engi- neers (IUOE) Local 772, grieved the termination. The union argued Meilleur was denied union representation at the time of his dismissal. Hearings were held in June and September of 2013. In an award dated July 14, 2014, the arbitra- tor hearing the case found the collective agreement's union rep- resentation provision had been breached. Due to the delay in is- suing an award, it was decided a remedy would be assessed when the case was heard on its merits. In the meantime, Meilleur obtained employment with a contractor who often works on Canadian Nuclear Laborato- ries' premises. The trespass ban, however, prevents Meilleur from attending at the workplace when his new employer is attending a job there. Therefore, the union requested an order directing that Canadian Nuclear Laboratories allow Meilleur to work on its site as an employee of the contractor. The case was arguable, ac- cording to the union, because there would be no potential for harm to the employer. Meilleur would be supervised at all times by the contractor, the union said, and refusing to allow Meilleur to attend work with his new em- ployer while awaiting a decision in the preliminary matter of his dismissal is causing unnecessary economic harm. The employer, however, said Meilleur was dishonest and un- co-operative when confronted with his participation in the theft. While Meilleur did eventu- ally admit to his culpability, the employer argued, he was not re- morseful in doing so. Meilleur was fired for serious and admitted misconduct, the employer said. The only proof of Meilleur's financial hardship was the union's word, the employer argued, and that was insufficient evidence to grant the request for interim relief given the serious matter for which he was fired. Arbitrator William Kaplan agreed, ruling the application for interim relief be denied. "The fact is that the grievor, a lead hand, has admitted his par- ticipation in the removal of the employer's property from its premises," Kaplan said. "Termi- nation, however, may or may not be appropriate when other fac- tors like his long service, clean record and denial of union repre- sentation are considered. In the meantime, there is a request that a person who took the employer's property without permission be allowed to work on the employer's premises." Kaplan found there was no evidence of economic hardship resulting from the trespass ban and also argued there was no evidence the grievor would be subject to appropriate supervi- sion by his new employer while on Canadian Nuclear Laborato- ries' premises. "It should also be borne in mind that the case has now been scheduled on the merits and will be heard before too long," Kaplan said. "Accordingly… the union's application is denied." reference: Canadian Nuclear Laboratories and the International Union of Operating Engineers (IUOE) Local 772. Wil- liam Kaplan — arbitrator. Robert Henderson for the employer, Lisa Triano for the union. March 3, 2015. City staffer gets benefits despite calculation mishap thE CitY of Toronto was or- dered by an arbitrator to com- pensate an employee who was shorted benefit compensation following a calculation mishap. The grievance was raised by a part-time worker, Jason Pfautsch, in the city's facilities division through his union, the Canadian Union of Public Em- ployees (CUPE) local 79 chapter. Of concern for CUPE was that the way the city calculated the number of hours Pfautsch worked led to discrepancies when it came to its illness or in- jury plan (IIP). Pfautsch worked in a 40-hour per week position, but in 2009 (the year in which he was hired) he worked 11 hours and in 2010 he worked about 956 hours. Instead, the City of Toronto calculated that Pfautsch worked 984 hours in 2010 for the pur- poses of provisions in the collec- tive agreement pertaining to the eligibility of IIP benefits — which the contract notes becomes available given an employee has worked at least 910 hours. According to CUPE 79 and Pfautsch, the city ought to con- sider the actual hours worked by the grievor during 2010, which would be 1,059 (including vaca- tion and statutory holiday pay) hours, and entitle Pfautsch to IIP. As noted and agreed upon by both parties, employees are paid every two weeks in arrears. Pay- ment is made a few days after the two weeks have been worked. In determining whether an employ- ee has reached the numerical threshold set out in the collective agreement to become eligible to receive IIP hours, the city looks to the year in which the hours are paid rather than the year in which the hours are worked. Had the city taken the lat- ter approach, the grievor would have qualified for the IIP hours for 2011 — but because it took the former, he did not. Such a move violated the collective agreement, according to the union. "The language of the agree- ment is clear and unambiguous. It requires the city to consider when the hours were worked, not when they were paid," the union argued at the hearing. "The provision says nothing about pay periods or pay days. Such matters are entirely internal to the city. It could not possibly have been the parties' intention to render the calculation subject to the city's internal practices or procedures." On the other hand, the em- ployer argued the collective agreement would have explicitly involved an amendment pertain- ing to the phrasing of "hours worked" versus "regular paid hours." While "hours worked" is refer- enced elsewhere in the contract, the city noted that for clauses re- lated to IIP, it would serve well to interpret as "hours paid." "(The city's) pay and benefits system is set up to meet its legal obligations to the Canada Rev- enue Agency for income tax pur- poses. This involves accounting for hours when they are paid, not when they are worked," the city explained. In making his decision, arbi- trator Russell Goodfellow sided with the union. "What the city's interpreta- tion would do is infuse, or read into, the former further element of timing – that of payment in accordance with its pay dates fol- lowing its biweekly pay periods," Goodfellow said. As such, the grievance was upheld, with Pfautsch entitled to compensation for any losses aris- ing out of the one found required by the collective agreement. reference: City of Toronto and the Canadian Union of Public Employees Local 79. Russell Goodfellow — arbitrator. Justin Basinger for the city, Douglas J. Wray for the union. March 3, 2015. ArbitrAtion AwArds < from pg. 1 "the fact is that the grievor, a lead hand, has admitted his participation in the removal of the employer's property from its premises."

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