Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2015 June 15, 2015 payroll duties to two other em- ployees. The payroll duties occupied these employees for two to three working days each week during Tsang's absence. Neither em- ployee received additional com- pensation during this time. The union was not notified of Tsang's leave and was not in- volved in the process of reas- signing her duties during her absence. According to the union, the parties' collective agreement re- quired the employer to circulate an email to other members of the bargaining unit to advise them of the vacancy and give them an opportunity to express their in- terest in temporarily performing those duties. The union filed a grievance on July 22, 2014. The union argued any absence of more than 10 days constituted a vacancy under the collective agreement and, therefore, trig- gered the employer's responsi- bility to notify the bargaining unit. The union further argued the position should have been posted as a temporary full-time position and the duties should not have been split between two employees. By way of remedy, the union requested a declaration that the employer was required to have posted notice of the vacancy as well as damages for the union. Additionally, the union request- ed compensation for one of the employees filling in for Tsang, as the work she performed dur- ing Tsang's absence was rated at a higher pay grade than her own position. But the need to treat every vacation absence of more than 10 days as a vacancy — as stipu- lated by a clause in the parties' collective agreement — would seriously impair operations, the employer said. Furthermore, the employer argued the collective agreement provided manage- ment with the sole discretion to determine and declare a va- cancy. Additionally, the employer argued the union had no right to damages because it suffered no loss as a result of two employees taking over Tsang's duties while she was on vacation. Any mon- etary award would amount to a penalty, rather than compensa- tion. Arbitrator Paula Knopf agreed that an emptiness or ab- sence from a position did not necessarily trigger a vacancy or the requirement to post. How- ever, both parties agreed the du- ties of the time administration clerk continued to be performed throughout Tsang's absence. Knopf ruled this constituted a temporary vacancy under the parties' collective agreement. Concerning the agreement's requirements regarding tem- porary vacancies and potential for impairment of operations, "the requirement to send out a notice and wait two days for responses cannot be viewed as burdensome. This could poten- tially lead to a richer pool of ap- plicants than might have been envisioned," said Knopf. "Therefore, it would seem to be advantageous to widen the pool by soliciting interest and choosing the best candidate." While the union argued the employer had no right to split the duties of the vacant position during Tsang's absence, nothing in the collective agreement im- posed such a limit, Knopf ruled. She also declined to order com- pensation or damages. As a result, the grievance was upheld in part, with Knopf de- claring the employer did not ad- here to the minimal dictates of the collective agreement when it failed to notify the bargaining unit of the temporary vacancy. Reference: City of Ottawa and the Amalgamated Transit Union local 1760. Paula Knopf — arbitrator. Steve McCardy for the employer, John McLuckie for the union. May 26, 2015. Bad grammar begets contract confusion a tRaNsit worker in Halifax won his case against the city af- ter a confusing policy left part- timers out of certain shifts. Gary Arnott, a part-time em- ployee in the transportation de- partment of the Halifax Region- al Municipality, filed a grievance after his employer changed its long practice of having part- time workers replace full-time workers. Under the city's new rules, Arnott was not called on to fill in for shifts left open by full-time employees taking time off for sickness, vacation and the like. Arnott's part-time position was created back in the early 1990s, as the employer testified, to settle a grievance regarding a manager performing bargaining unit work. He was required to work two shifts per week, or if a full-time worker was absent. However, the duties of the part-time position were only loosely referenced in the col- lective agreement. Both parties agreed that automatically calling Arnott into work when a full- timer was absent was the result of operational necessity, as op- posed to a requirement. During the most recent round of negotiations, there was dis- cussion regarding Arnott's po- sition but because neither party could come to a satisfactory agreement, it left the confusing clause unchanged — bad gram- mar and all. It read: "When the part-time employee is required to fill in for absenteeism of full-time employees, (including sick- nesses, vacations, or easement leaves, union business, etc.). The part-time employee will work the same shift as the ab- sent employee." So when Arnott was not called in to cover a shift that he other- wise would have, he filed a griev- ance alongside his union, the Amalgamated Transit Union Local 508. According to the union, the collective agreement was am- biguous; it was composed of two incomplete sentences that ne- cessitated an explanation. Editorial faux pas aside, the union said the intent of the pro- vision was clear, and past prac- tice further fortified the argu- ment. But the employer said the ar- ticle was not ambiguous at all. That the clause required some explanation fit within manage- ment's general power to manage the workforce, counsel argued. A clear expression of intent, especially one that spawns a fi- nancial benefit, would therefore be unequivocally expressed. Seeing as how this one was not, the employer maintained it held the jurisdiction to bend as it saw fit. In his decision, arbitrator Wil- liam Kydd sought to determine whether the city had the discre- tion to determine whether the part-timer should be called in to replace an absent full-timer. The clause, though an inco- herent one, did not expressly give the employer the ability to determine whether a call-in was necessary or not, it simply said Arnott would be called in auto- matically. The city therefore vio- lated the collective agreement and Arnott should be made whole for lost wages on that par- ticular night. Kydd also determined this to be a continuing grievance, and applied the ruling to any other similar instances 15 days prior to the night that prompted this case up until the hearing date. Reference: Halifax Regional Municipality and the Amalgamated Transit Union (ATU) Local 508. William Kydd — arbi- trator. David Greener for the employer, Kim Turner for the union. Feb. 9, 2015. ArbitrAtion AwArds < from pg. 1

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