Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2014 ARBITRATION AWARDS September 14, 2015 treated as overtime, because the employees are being required to work in excess of their regular hours. The employer, however, ar- gued that the act of carrying a cell phone during a paid rest pe- riod does not constitute work. The employer submitted case law confirming that where a col- lective agreement characterizes rest periods as part of the regular working hours, employees may be confined in where or how they can take those rest periods with- out attracting additional com- pensation. The employer further argued that if employees were paid over- time for carrying cell phones or remaining on-site during their paid breaks, it would result in the pyramiding of payments, with employees being paid double time and a half. Arbitrator Kristin Gibson agreed there was no require- ment under the parties' collective agreement for the employer to make any additional payment to workers required to carry a cell phone or pager during their paid rest periods. However, Gibson also agreed with the union's characterization that any work performed during the paid rest period constitutes overtime. "As Article 1802 deems the rest periods to be part of the regular hours of work, if an employee works through a rest period they are in fact working 'in excess of ' the daily hours of work as they are clearly working 20 minutes more than they would work if they were able to take their rest breaks," Gibson said. The employer submitted that the workers' pay for a regular shift — which includes the paid rest period — should count to- ward this overtime payment. If employees were to be paid over- time for work done during a paid rest period, the employer argued, they would essentially be paid twice. The union, however, argued there would be no pyramiding of payments because the compen- sation for the paid rest period is for a different purpose than the overtime compensation for work done during a paid rest period. Gibson agreed with the union, ruling employees who performed work during their paid rest pe- riod were entitled to overtime payment in addition to payment for regular hours. So while the employer is not required to make any additional payment to em- ployees who are required to carry a cell phone or pager during their paid rest period, any employee who is required to work during that paid rest period will be enti- tled to overtime in addition to the regular wage rate. Accordingly, the grievance was allowed in part. Reference: Winnipeg Regional Health Authority and the Canadian Union of Public Employees. Kristin L. Gibson — arbitrator. Keith LaBossiere for the employer, Kathy McIlroy for the union. May 19, 2015. Sidewalk sweeper, dump truck driver flare up AFTER A kerfuffle between city workers operating a dump truck in a neighbourhood in Burling- ton, Ont., one was ordered rein- stated after an arbitrator decided termination was excessive. Tom Paglia had worked as a sweeper at the City of Burlington until he was fired in November 2014 following an altercation with another employee a week earlier. In a residential neighbour- hood, Paglia had been operating a sweeper while another unnamed employee was working the dump truck on the same street. Paglia signalled he wanted the dump truck to clear a path, but when he didn't, Paglia got out of his sweeper and verbally accosted the driver. When the driver stepped out of his vehicle, Paglia pushed him. When the driver indicated he would report him, Paglia called him a rat. However, when the driver re- ported the incident, Paglia at first denied any misbehaviour. When the grievance was filed, both the city and Paglia's union, the Canadian Union of Public Employees, agreed to the facts as presented. Paglia said he apologized to the driver, the employer and the union, both for his actions and because he initially denied his ac- tions. He promised never to lie to management again and asserted that he now understood how im- portant it is to never act in a man- ner that is threatening or harmful to other employees at work. Given the evidence and Pa- glia's testimony, Kaplan allowed the grievance and reinstatement, with certain conditions. "Obviously, violence in the workplace cannot be tolerated. No one should face violence, or the threat of violence, in the workplace," he said. "These actions justify the most serious disciplinary sanction in- cluding, in many cases, uphold- ing termination for just cause. However, in the unique facts of this case, I am inclined to give the grievor another chance." Due to Paglia's 26 years of ser- vice, coupled with a complete ab- sence of disciplinary record, his family situation and the unlikeli- hood he'd repeat the offence, Ka- plan reinstated the grievor. He also noted the grievor was only 5 years away from eligibil- ity for an unreduced pension and showed sincere expression of regret and full acceptance of re- sponsibility. Paglia also promised to attend counselling upon his return to work, to deal with any anger issues. Accordingly, Kaplan ordered Paglia be reinstated but with no compensation, including no ben- efits, but with no loss of seniority. Reference: Corporation of the City of Burlington and the Canadian Union of Public Employees (CUPE) Local 44. William Kaplan — sole arbitrator. Jamie Knight for the employer, Dean Mainville for the union. Sept. 1. < from pg. 1 Unique circumstances — including grievor's long service — led to reinstatement. Employees entitled to overtime pay in addition to regular pay for work done during paid rest period.

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