Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2015 October 5, 2015 ARBITRATION AWARDS in response to operational re- quirements. The amount of overtime worked was drastically reduced and the employer then sought out the labour relations board to end the overtime ban by employees. In the meantime, vol- unteer employees worked over- time. In November 2013, the provin- cial labour board ruled the em- ployer could invoke its mandatory overtime provision as outlined in the collective agreement. How- ever, the next day, Milne provided a medical note saying he could not work overtime. The employer was concerned that Milne — who had worked sig- nificant overtime hours in the past — was able to work for a contrac- tor during his off-hours, despite the doctor's note. The company consulted an occupational health and safety expert, and it appeared the no overtime plan prescribed by the grievor's doctor was based on supporting statements from the grievor — and during a meeting, the grievor said he could have the restriction removed. Milne was then informed his continued employment at Rio Tinto would be jeopardized if he did not work overtime. In December, Milne was inter- viewed for a second time and it was concluded he was still con- tinuing the overtime ban. He was fired. However, Milne said he had made an appointment to discuss it with his doctor. Milne said he was having personal issues at home and health problems, and he found his work environment to be stressful, because of tension and conflict with management. Milne said his doctor had advised he not work overtime hours. For these reasons, his union, Unifor Local 2301, argued termi- nation was excessive. The employer, on the other hand, justified the decision to ter- minate Milne as he was essentially taking part in an unlawful work stoppage, and his excuse for doing so was not entirely credible. Arbitrator Christopher Sulli- van said in his decision that Milne was forthcoming and candid when discussing his medical con- cerns, and many employers have similar concerns when it comes to an employee's medical restric- tions. Further, no other employees were disciplined for partaking in the overtime ban. The grievor's situation did not involve an at- tempt to challenge or otherwise undermine management's au- thority, nor did it contribute to production problems or financial loss to the employer, Sullivan said. Coupled with the fact Milne was a 15-year veteran with good performance evaluations, Sul- livan agreed with the union that termination was excessive. Instead, he ordered termina- tion be replaced with a three-day suspension and Milne be made whole for other losses. Reference: Rio Tinto Alcan and Unifor Local 2301. Christopher Sullivan — arbitrator. Kevin O'Neill for the employer, Bruce Laughton for the union. Aug. 28, 2015. Accommodation would have resulted in undue hardship Harjit Brar was denied a transfer to a preferred day shift because of her need for accommodation. Brar worked as a general ware- house associate in department 1005 of an Ontario-based Win- ners. As a result of a disability he developed in the workplace, Brar received permanent accommo- dation working primarily on the control desk. Brar was cautioned about sus- taining grips and pinches. She was also cautioned not to lift objects weighing more than five pounds. Frequent task rotation was rec- ommended. Brar applied to transfer to a preferred day shift in department 1080 but her request was denied and an employee with less senior- ity was given the position. The Workers United Canada Council Local 152 filed a griev- ance on her behalf, arguing the employer failed in the procedural duty element of its duty to accom- modate. The union emphasized the parties' collective agreement states employees on modified du- ties are eligible for transfer "if able to perform the job duties." The union further argued the employer's duty to accommodate was a continuing duty. The employer, however, argued Brar was not capable of perform- ing the essential duties of the general warehouse associate in department 1080 during the after- noon shift. To accommodate Brar in that position would constitute undue hardship, the employer said. The tasks performed at the control desk in department 1080 were similar to those in department 1005 but the volume of work dur- ing the afternoon shift was much greater. In department 1080, employees are required to perform layups, ticketing and packing. Because of Brar's restrictions, she would be unable to perform layups or pack- ing. Due to the nature of the after- noon shift in department 1080, there was no other work for Brar to perform when she was unable to do layups or packing. As a result, Brar would have required assistance throughout the day and two people would be needed to perform the work nor- mally performed by a single per- son, said the employer. Arbitrator James Hayes agreed the employer failed to discharge its process obligation to Brar con- sidering its duty to accommodate is a continuing obligation. How- ever, Hayes also found the accom- modation required to support Brar's transfer to an afternoon shift in department 1080 would constitute undue hardship. "Any immediate accommoda- tion of her in department 1080 would require the employer to bear the financial burden of em- ploying an additional employee," Hayes said. "An employer is not required to carry a surplus employee to satisfy its duty to accommodate." Given Brar's medical restric- tions and the requirements of the afternoon shift in department 1080, Hayes ruled the employer was not required to approve Brar's application for transfer and the grievance was dismissed. Reference: Winners Merchants International and the Workers United Canada Council. James Hayes — arbitrator. Robert Little for the employer, Steven G. Bosnick for the union. Sept. 22, 2015. "An employer is not required to carry a surplus employee to satisfy its duty to accommodate." No other employees were disciplined for partaking in the overtime ban. < from pg. 1

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