Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2015 October 12, 2015 ARBITRATION AWARDS According to the union, the school board's calculation of the gratuity via the memorandum of understanding (MOU) ef- fectively altered or amended the collective agreement. The MOU provides for the elimination of old sick leave provisions, which were replaced by a new sick leave plan. The old accumulated sick leave banks were frozen and those teachers who had vested entitle- ments (10-plus years), were to have their retirement gratuities paid out upon their retirement. "Vested teachers," those with less than 10 years of service, were entitled to a gratuity payment, which would effectively eliminate their former sick leave banks. As the union saw it, the board had taken it upon itself to pro-rate the minimum years of service factor to be applied to those employees with less than 10 years of service. Therefore, the employer was in violation of the collective agree- ment. On the other hand, the school board said the MOU requires that it apply the collective agreement formula to those teachers who would not otherwise be entitled to receive a retirement gratuity. The employer argued the formula, when applied to teachers with less than 10 years of service, results in non-payment. Because the payment would be less than if the calculation was based on the MOU, the board said it was within its rights because eli- gible teachers received more than their actual entitlement. Arbitrator allows grievance The arbitrator allowed the griev- ance. "I find that the intention of the parties was to provide non-vested teachers with a gratuity wind-up payment," said arbitrator John Stout. "The applicable calculation for payment in these circumstances is the formula provided under the MOU." "What is peculiar about this situation is the fact that the MOU was not negotiated by these par- ties and was intended to be ap- plicable to various local school boards and ETFO local unions across the province," Stout added. As such, he determined the school board violated the col- lective agreement by failing to properly calculate and pay out teachers' non-vested retirement gratuity. Reference: Limestone District School Board and the Elementary Teachers' Federation of Ontario. John Stout — arbitrator. Vince Panetta for the employer, Howard Goldblatt for the union. Sept. 30, 2015. Employee reinstated following alcohol-related dismissal THE CANADIAN Union of Pub- lic Employees Local 1252 filed two grievances against FacilicorpNB after an employee — referred to only as J.R. — was fired for inci- dents stemming from his alcohol abuse. The union grieved a 30-day sus- pension as well as J.R.'s termina- tion, seeking reinstatement with full redress. The suspension stemmed from an incident on Nov. 27, 2013, when J.R. was sent home from work after his manager detected the smell of alcohol after com- ing in contact with him. On April 17, 2014, J.R. arrived late to work red- faced and smelling of alco- hol. He disappeared periodically and appeared to become more in- toxicated as the day wore on. After lunch, J.R. was again sent home and suspended without pay pend- ing an investigation. Ultimately the employer made the decision to terminate him. J.R. acknowledged he had had issues with alcohol but testified he never consumed alcohol while at work. He did admit, however, to suffering from a hangover while at work as a result of alcohol con- sumption the previous evening. Previous discipline against J.R. included a verbal warning for arriving late to work with an ap- parent "smell of alcohol," a two- day suspension without pay for abandoning his shift and insub- ordination, a five-day suspension without pay for arguing with fel- low employees while apparently "drunk," and multiple letters of warning regarding his use of sick leave. According to the employer, J.R. typically took sick days on Mondays and after vacation days, a pattern the employer found troubling. The employer argued J.R. had ample opportunities to disclose his alcohol abuse but did not do so. The employer consistently re- minded J.R. of its Employee and Family Assistance Plan during meetings to address his behaviour. The employer further argued J.R.'s alcohol use impacted his work performance and the work performance of his coworkers, as fellow employees were called on to skip breaks and work longer hours to complete the work J.R. was not completing. While it acknowledged alco- holism as a disability, the em- ployer said its duty to accom- modate does not insulate an employee from sanction for mis- conduct. J.R. consistently arrived at work under the influence of al- cohol and was repeatedly dishon- est in his use of sick leave. The union, however, argued that redness of the face and the smell of alcohol are all open to subjective interpretation and not evidence of impairment while at work. The union argued dismissal was excessive, saying J.R. should be reinstated to his employment subject to appropriate conditions. Arbitrator John. P. McEvoy agreed that J.R.'s conduct on Nov. 27, 2013, and on April 17, 2014, constituted just cause for disci- plinary action by the employer. However, he found dismissal to be excessive, saying he was not satis- fied the employer had approached the point of undue hardship in its accommodation of J.R.'s alcohol- related disability. While the grievance relating to the 30-day suspension was dis- missed, the grievance relating to J.R.'s termination was upheld in part. McEvoy ruled the dismissal be substituted with a 30-day suspen- sion without pay followed by an unpaid leave during which J.R. could complete a detox/rehabili- tation program. Further return to work was subject to a last chance agreement to be negotiated by the parties, and if J.R. did not success- fully complete the detox/reha- bilitation program, his grievance would stand dismissed. Reference: FacilicorpNB and the Canadian Union of Public Employees (CUPE) Local 1252. John P. McEvoy — arbitrator. Andrea Folster for the employer, Ralph McBride for the union. Aug. 15, 2015. < from pg. 1 The calculation of the gratuity effectively altered the parties' collective agreement. Employer did not reach point of undue hardship in its accommodation of the grievor: Arbitrator

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