Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2015 May 4, 2015 According to the collective agreement, length of service and bargaining unit membership will be contributing factors when MEC hires or promotes a new employee. In this case, the union argued there were express provisions in the contract that deemed all vacancies be filled on the ba- sis of seniority and, further, the company had hired lead hands via this process for the past 15 years — whether formally or in- formally. On the other hand, the com- pany said there is a lot more to the clause than just seniority — in fact, it also included provisions pertaining to traditional skill and ability. Further complicating the mat- ter was a new collective ratified in 2012 that included amendments to the promotion provision that now addressed other factors for promotion. Bargaining occurred around the same time as Xu was looking to be hired as lead hand. MEC argued the seniority clause was intended to play tie- breaker in cases where more than one candidate was worthy. The clause must be taken as a whole, not cherry-picked to suit the union's wants and needs, the employer said. Arbitrator decides In making his decision, arbitra- tor Ronald Keras determined the provisions of the first part of the clause did not conflict with any tertiary provisions — both were specific and unequivocal. "In the current case, the con- duct of the employer was to award positions based on senior- ity," Keras's decision read. "I find that the conduct of the employer was such that the union was correct in concluding that the employer had by its conduct allowed the union to rely, to its detriment in the case of the cur- rent grievor, that the employer would not exercise its strict rights pursuant to (the collective agree- ment)." Therefore, MEC's actions constituted an estoppel and the grievance was upheld. Keras ruled Xu be awarded the lead hand position he applied for based on the fact that he was the most senior applicant. reference: Mountain Equipment Co-Operative and the Retail Wholesale Union Local 580. Ronald S. Keras — arbitrator. Gavin Marshall for the employer, Gavin Marshall for the union. March 3, 2015. Employer fails to accommodate forklift operator an arBiTraTOr has found Winners Merchants to be in breach of its duty to accom- modate Prakash Sandhu. How- ever, arbitrator James Hayes also found that the outcome would not have been much different if that obligation had been satisfied. Sandhu's union — the Work- ers United Canada Council Lo- cal 152 — filed a grievance on her behalf after the employer denied her request for transfer to a fork- lift position on a preferred day shift. At the time of Sandhu's re- quest, she was employed as a forklift driver on modified duties on the midnight shift in one of the company's Ontario locations. As part of her accommodation, Sandhu operates only one of four types of forklifts. Additionally, Sandhu needs assistance when required to move individual boxes before continuing her work with the forklift. The union alleged the em- ployer failed to conduct an indi- vidual assessment of the viability of Sandhu's request as required by the duty to accommodate. Ac- cording to the union, the same modified duties should be made available to her on the day shift as were being applied to her on the midnight shift. The employer, however, said the differences be- tween forklift operations during the day and midnight shifts are significant. The employer testified as many as 400 employees are re- quired during the day, while only about 80 employees work on the midnight shift. Because of the nature of the workplace, the employer said, having more em- ployees in the warehouse actually makes accommodation more dif- ficult. Any employee must be certi- fied and prepared to take on work using any of the four types of forklifts available, the employer said, in order to maintain the flow of work. Creating a separate schedule for Sandhu that would allow her to only operate one type of forklift and make other employees available when she required assistance moving in- dividual boxes would constitute undue hardship, the employer argued. Sandhu testified she was told her transfer was denied because of her need for accommodation. The union argued this constitut- ed a complete failure of process. An individual assessment of her circumstances was necessary, the union said, arguing the employer successfully accommodated Sandhu in her work on the mid- night shift. The union requested Sandhu be awarded the transfer to the day shift and be compensated for any lost income. Arbitrator James Hayes agreed the employer had an ob- ligation to accommodate but it was not required to change working conditions in a funda- mental way or past the point of undue hardship. "The grievor had the legal right to have her transfer request con- sidered in a timely fashion on an individual basis from an accom- modation perspective," Hayes said. "In this respect, therefore, the employer breached its obliga- tions." In many such situations, Hayes said, it would be appropriate to direct the parties to consider the issue of accommodation as it should have been considered in the first place. He did not believe that would be appropriate in this case, however. "The likelihood of Winners adopting another conclusion, even assuming the utmost of good faith, is remote in my esti- mation," Hayes said. Considering the amount of work done during the afternoon shift, and considering the num- ber of employees required to accomplish that work, Hayes found the assignment of Sand- hu to the afternoon shift would have been like requiring the em- ployer to assign two people for the same job. "To accommodate the grievor on the day shift," Hayes said, "the employer would be required to provide her with frequent but irregular assistance. In the alter- native, the employer would be re- quired to reconfigure its system of… driver deployment to incor- porate a unique role for her." Because he found the accom- modation sought would impose an unwarranted alteration of working conditions at a signifi- cant cost to the employer, Hayes ruled the accommodation would reach beyond "due" hardship. The grievance was allowed in part. reference: Winners Merchants Intl. and the Workers United Canada Council Local 152. James Hayes — arbitrator. Rob- ert Little for the employer, Steven G. Bosnick for the union. April 20, 2015. ArbitrAtion AwArds Employer has a duty to accommodate but not to fundamentally alter the nature of the job: arbitrator.

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