Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2015 June 8, 2015 Standards Act. The United Food and Com- mercial Workers (UFCW) local 175, which represents about 950 employees, filed a policy griev- ance on the grounds that Cargill's attendance policy discriminated against certain employees who would be unduly punished for what the company viewed as ab- senteeism. However, the employer ar- gued the intention of the policy is to assist and support current employees in their non-culpable attendance issues. According to Cargill, the pro- gram was "designed to identify employees with non-culpable attendance problems, put the employee on notice that their at- tendance level is unacceptable, identify the causes of the poor at- tendance and assist the employ- ee to achieve acceptable levels." More specifically, under the policy in question, Cargill estab- lished a set of rules (such as pro- viding a doctor's note or ample notice of a sick day) that, if vio- lated more than five times in one year, would automatically put an employee into the attendance management program. Once an employee is in the program, he will attend an initial interview, to be followed-up ev- ery three months with counsel- ling. Of course, certain absences are excluded, such as jury duty or leave for union business. While no discipline would be automatically or formally carried out as per Cargill's attendance policy, it did note that if an em- ployee reaches a certain level, he could be deemed unsuitable for his current position. But as the local UFCW chap- ter pointed out at the hear- ing, the collective agreement contains a clause that provides employees wishing to cover a non-culpable absence with "emergency leave" or float holi- days, with express permission from the employer. Designating certain types of leave with corresponding ab- sences is the root issue, said arbi- trator Jesse Nyman. "It is somewhat unsurprising that this grievance wound up proceeding to arbitration. If any- thing, what the foregoing cases make clear is that the assessment as to whether a given benefit or group of benefits 'directly relate' to an employment standard can be difficult," Nyman explained. The purpose of an emergency leave day, Nyman determined, is to deal with unforeseen and im- mediate personal and family cir- cumstances. The float holiday is exactly that — a holiday. Because these types of leave had different and unrelated des- ignations, Nyman found Cargill could not reduce en employee's emergency entitlement by the number of float days to which he is entitled under the contract. "If anything, Cargill adopted a reasonable and generous ap- proach. All that this decision decides is that it was not open to Cargill to unilaterally change the nature and purpose of the floater days that had been negotiated under the collective agreement and thereby reduce a benefit un- der the Employment Standards Act to which the employees are otherwise indisputably entitled." The grievance was allowed in part. reference: Cargill Value Added Meats London and the United Food and Commercial Workers local 175. Jesse Nyman — arbitrator. Daniel Leone for the employer, Maryanne Galati for the union. May 21, 2015. n.B. job posting lost in translation tHe internAtiOnAL As- sociation of Firefighters (IAFF) local 999 filed a grievance against the City of Moncton after a job posting for an assistant fire pre- vention officer was designated as a bilingual position. According to the union, the New Brunswick-based employer failed to adhere to the terms of the parties' collective agreement when it directed the candidate for position "must be fluently bi- lingual in both official languages and may be required to under- take a language skills test." The union argued the employ- er was attempting to unilaterally impose an additional pre-requi- site for the position outside of the collective agreement, something it could not do without negotia- tion. The union requested the posi- tion be reposted and that the in- cumbent employee be appointed to his previous position without a loss of seniority. In 2010, the employer posted another vacancy for an assistant fire prevention officer — also designated as a bilingual position — and the union filed a griev- ance. The grievance was held in abeyance, however, after the par- ties established a promotional process committee and agreed to a letter of understanding set- ting out a list of prerequisites for positions within the bargaining unit. None of the prerequisites addressed a language require- ment. Since the 2010 grievance, two positions were filled by Anglo- phone employees. The union argued the filling of these two positions without a bilingual requirement shows that the em- ployer intentionally avoided ad- dressing the issue of language requirements with the promo- tional process committee. Further, the union argued the incumbent was not a senior em- ployee when he was promoted. It argued the appointment was made solely on the basis of his meeting the language require- ment of the posting. None of the other requirements — as agreed to by both parties in the col- lective agreement and letter of agreement — were assessed. The employer argued it has a constitutional obligation to offer services to its citizens in both of- ficial languages. The City of Moncton was des- ignated as officially bilingual in 2002, and the employer noted it has since taken the approach of grandfathering positions as well as offering long-term language training to current employees. The employer further argued the union was not entitled, under the collective agreement, to have input on the skills of the assistant fire prevention officer. Robert Breen, chair of the ar- bitration board, said the "best option" for both parties would be to negotiate terms for language requirements at the fire depart- ment in collective bargaining. Concerning the immediate case, Breen said "the evidence demonstrates that the sole test- ing called for by the city for the disputed posting went to the language requirement set. While I am satisfied that this require- ment was 'prudent and neces- sary' in the particular facts of this case… it does not constitute a licence for the city to totally ab- solve itself from tests negotiated with local 999." Accordingly, the arbitration board did not find reason to di- rect the incumbent employee be removed from the position. The board did, however, rule the employee be called upon to com- plete the tests prescribed in the parties' collective agreement. "In the expected event that (the incumbent) does now achieve a composite score of 70 or better, he is to retain his posi- tion, without further trial," the board ruled. The union's grievance was otherwise denied. reference: City of Moncton and the International Association of Firefighters Local 999. Arbitration board: Robert D. Breen, chair; Peter McIntyre, employer nominee; Larry Cook, union nominee. André Richard for the employer and Lee McKeigan-Dempsey for the union. Jan. 14, 2015. ArbitrAtion AwArds < from pg. 1

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