Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2015 May 25, 2015 made a significant difference on his paycheque. The HSAS opposed the em- ployer's view that the end of a casual employee's 24-hour stand-by period should "reset" the premium pay clock, con- verting the premium hours to regular hours, even though the employee remained at work without interruption. There was no evidence or explicit language indicating any "reset" button in the collective agreement. "If the employer wished to change the long-standing prac- tice with respect to call-back payment, the place to make the change was the bargaining table, not by changing the practice mid-contract," union counsel said at the hearing. The employer, Sun Country Regional Health Authority, op- erating under the Saskatchewan Association of Health Organiza- tions, said the union's interpre- tation of the agreement would "produce absurd situations marked by anomalies and unfair- ness." The employer said the union's interpretation led to a doubling up of hours — an employee who is called in for half an hour, then sent home and receives the mini- mum three-hour call-back pay, then returns for six hours is paid double time for the second shift. This employee would get more pay than an employee who was simply called into work for a 12-hour period at straight time — something the employer de- nounced as "fast track overtime" and resulted in unequal treat- ment. Complicating the matter is past practice at Sun Country was not consistent with the contrac- tual language. It is not uncommon, noted ar- bitrator Allen Ponak, as arbitra- tors have long been conscious of the need for a practical common sense approach, given the long- term, continuing nature of col- lective bargaining relationships and the need for the parties to work together on a daily basis. In the matter at hand, Ponak sided with the union, saying the contractual language favoured the union's argument. In particu- lar, he concluded the call-back provision did not require that an employee must have worked a regular scheduled shift in order to qualify for the call-back pay. "Accepting in principle that the use of different words is in- tended to mean different things, overtime pay and premium pay are not the same," the decision reads. "But simply because premium pay rates and overtime pay rates are the same for certain things, does not make working overtime and working in a situation that attracts premium pay one and the same. An employee may be working at a premium rate with- out necessarily working over- time, and vice versa." As such, the grievance was sustained. Ponak further ordered that the union's interpretation be the preferred practice going for- ward. reference: Sun Country Regional Health Authority and the Health Sciences Association of Saskatchewan. Allen Ponak — arbitrator. Peter Barnacle for the union, Stephen McLellan for the employer. May 5, 2015. School district employee dismissed after fight with student a SchOOlYard fight with a student led to the discharge of a Toronto District School Board (TDSB) employee. On Sept. 25, 2012, Sylvia Hat- zantonis picked up her 13-year- old daughter from school. Hat- zantonis found her daughter crying and determined there had been an altercation with an- other student, referred to as EM. Hatzantonis confronted EM. That confrontation was record- ed by one of the student specta- tors. In the video, Hatzantonis can be seen shouting at EM, swearing at EM and calling him and his mother vulgar names and telling EM she works for the TDSB, saying she could find out information about him. The employer launched an in- vestigation after it became aware of the video, which was posted online. Hatzantonis was criminally charged in relation to the video. Following the completion of two anger management courses and the payment of a fine, the charg- es against her were dropped in May 2013. Following the employer's in- vestigation, Hatzantonis was dismissed in June 2013. Her ter- mination cited comment and conduct inconsistent with that expected of TDSB employees, attempting to conceal her con- duct by counselling others to provide false evidence and dis- honesty and breach of trust dur- ing the employer's investigation. Several students who wit- nessed the altercation were in- terviewed in the course of the employer's investigation. Sever- al of the students said Hatzanto- nis asked them to write witness statements that would cast her in a positive light. In exchange, the students would be treated to whatever they wanted at Mc- Donald's. Hatzantonis admitted she asked the students for witness statements on the advice of her lawyer, in the context of the criminal charges. She denied she attempted to influence the contents of the letters, though she admitted she treated the stu- dents to whatever they wanted at McDonald's in exchange for the statements. The employer argued this request was an attempt on Hat- zantonis' part to conceal her conduct and constituted coun- selling the students to provide false evidence. Furthermore, the employer argued Hatzantonis was dishon- est during its own investigation. When asked to describe the in- cident, Hatzantonis denied ever touching or threatening EM in any way. She also denied the use of vulgar language. After reviewing the video dur- ing the interview, Hatzantonis said she had forgotten the details of the event. Hatzantonis' union, the Cana- dian Union of Public Employees (CUPE) Local 4400, grieved the dismissal. The union argued the alterca- tion occurred when she was off duty, and the TDSB has no juris- diction or authority over what employees do in their private lives unless it can show a materi- al connection between employ- ees' off-duty conduct and their employment. Arbitrator Tanja Wacyk con- sidered several mitigating cir- cumstances relating to the al- tercation. Hatzantonis' conduct was triggered by her protective instincts as a parent, Wacyk said, and occurred outside of her em- ployment. Additionally, Hatzan- tonis was a long-time employee with a discipline-free employ- ment record. However, Wacyk found Hat- zantonis' actions were com- pounded by her continued dis- honesty in both her attempt to influence the testimony of the student witnesses and during the employer's investigation. This continued dishonesty, Wacyk said, constituted "a breakdown of the employment relationship, and precludes sub- stituting a lesser form of disci- pline." The grievance was dismissed and the discharge was upheld. reference: Toronto District School Board and the Canadian Union of Public Employees Local 4400. Tanja Wacyk — arbi- trator. Patricia G. Murray for the employer, Tim Gleason for the union. May 6, 2015. ArbitrAtion AwArds < from pg. 1

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