Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2015 August 3, 2015 ARBITRATION AWARDS Slotnick (who also presided over the case at hand) in October 2014, a month after the decision came down. First, the union argued Rain- inger was entitled to additional back pay for the paid vacation he would have received had he not been fired. Because he could have taken the vacation days, the IBEW ar- gued he should have the time granted as part of the "full com- pensation" mandated in the origi- nal ruling. The company argued the em- ployee was given back pay based on all work days for the time he was unpaid, which included sev- eral weeks prior to the termina- tion. Therefore, Raininger had re- ceived — and was not entitled to any more than — compensation for every potential working day missed, Veridian said. Slotnick sided with Veridian, saying the employee would not have been required to work at a time when he should have been granted paid vacation. He had been technically off work, and would not need a break or vaca- tion. Secondly, the IBEW argued the interest formula should be re-examined. The formula origi- nally used was based on the con- sumer price index of 1.3 per cent, which the union argued is only appropriate for certain and short periods of time. Raininger was off work for 2 years. The arbitrator agreed with the union, saying a simple interest calculation, rather than a com- pounded one, should apply. However, he did not agree a higher rate should apply for a post-award interest, unless the arbitrator felt there had been an international delay or other type of bad faith, which he said was not the case here. CPP, tax concerns Finally, the union raised concern over taxation and Canada Pen- sion Plan implications. The union wondered whether Raininger should be compen- sated for any higher taxation experienced as a result of being provided back pay in 2015 in- stead of 2014, and whether his CPP payments might ultimately be reduced because there were no contributions made while he was off work. IBEW did not provide submis- sions for this particular matter and asked for the decision to be deferred until more definite in- formation regarding the griever's taxes could be confirmed. On this final subject, Slotnick did not make an official ruling. He added that, at the risk of having the issue linger, a general decision on whether the taxation issue has merit can and should be made without detailed num- bers by Sept. 30, by which time the union would have to advise whether it intends to go forward with the issue. Reference: Veridian Corp. and the International Brotherhood of Electrical Workers Local 636. Lorne Slotnick — arbitra- tor. Michael Horvat for the employer, Andrea Bowker for the union. July 20, 2015. Expansion of grievance denied by arbitration board THE Ontario Public Service Employees' Union (OPESEU) filed a grievance against George Brown College in Toronto fol- lowing the termination of Anna Strever, and then expanded that grievance. The union asserted Strever had passed her probationary pe- riod at the time of her dismissal and, as a result, her termination must be assessed with the just cause standard available to em- ployees with seniority. According to the union, the employer failed to account for Strever's previous work, which should have reduced the proba- tionary period from the usual 24 months to 22 months. The union called for Strever to be reinstated as a full-time, past- probation employee and for the employer to be held liable for any loss of income or benefits. On the first day of the hearing, the union asserted Strever's ter- mination was made for reasons that were arbitrary and in bad faith. The union argued the em- ployer's assessments of Strever's performance were inaccurate to the point of fabrication and unrelated to her actual perfor- mance. The employer, however, ar- gued the union cannot claim Strever was terminated for rea- sons that were arbitrary or made in bad faith when the union failed to make such an accusation at any other point during the grievance process. These accusations were not made, the college said, until al- most 10 months after Strever's termination. According to the employer, the union's allegations of arbitrari- ness or bad faith decision-mak- ing amounted to an expansion of the grievance. The arbitration board — con- sisting of chair Mary Ellen Cum- mings, employer nominee Anne Burke and union nominee Pa- mela Munt-Madill — agreed the union's submission of arbitrary or bad faith decision-making was an entirely different issue that re- quired the calling of evidence and making of legal submissions. The board concluded the union failed to inform the em- ployer in a timely manner that it was challenging the honesty of the employer's decision-making, amounting to an improper ex- pansion of the grievance. Following the board's ruling, however, several preliminary is- sues remained unresolved. Still to be addressed was the union's submission that the em- ployer failed to properly calculate Strever's probation, and whether that submission was timely when it was included in the grievance respecting her termination or whether it should have been filed when Strever was hired and in- formed of her probationary pe- riod. If the union's grievance regard- ing the calculation of probation was timely, it is still to be deter- mined whether the employer accurately calculated the pro- bationary period or if it failed to take into account her previous, relevant work. The arbitration board put for- ward that those questions would determine whether it is litigating the termination of a probationary employee or an employee with seniority. The board suggested the union and employer discuss how to pro- ceed and convene a conference call at a later date. Reference: George Brown College and the Ontario Public Service Employees' Union. Arbitration board — Mary Ellen Cummings (chair), Anne E. Burke (employer nominee), Pamela Munt-Madill (union nominee). Brenda Bowlby for the em- ployer, Tom Tomassi for the union. July 8, 2015. Employer not informed of accusations of bad faith decision-making in timely manner, says arbitration board Union called for re-examination of back pay issues after employee was off work for two years

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