Canadian Labour Reporter

8 ing the switchboard during night shifts. The problem was that, up until February 2015, two bargaining unit employees operated the em- ployee's switchboard. However, in 2014, the employer decided that, in view of the mod- est number of calls received on that shift (between 11 p.m. and 7 a.m.), it could not justify continu- ing to schedule two switchboard operators. As such, about 35 Russell Secu- rity employees were hired to pro- vide relief when those two work- ers would take breaks, and were responsible for various related du- ties such as monitoring security cameras. This was a direct violation of the collective agreement, CUPE said, particularly the clauses relat- ing to contracting out work typi- cally performed by the bargaining unit. The duties of the security op- erators were only to provide relief during switchboard operators' breaks, which they did at no extra cost to the employer, as per an un- written agreement between Rus- sell and the hospital. However, the employer main- tained the union failed to provide evidence linking the contracting out of the disputed work and the layoff of any employees. Thus, in the absence of such a link, there could be no finding that the col- lective agreement had been vio- lated, the employer said. It also argued that because Russell employees provided re- lief only informally and in addi- tion to their prescribed duties, the security operators were not employed by North Bay during the work in question, but rather they remained employees of Rus- sell Security. This argument was dismissed as a "straw man" by arbitrator Michael Bendel. Rather, Bendel said the de- termination was whether the employer's actions constituted a "genuine, legitimate or effec- tive 'contracting out.'" In order to establish that, there must be "a significant change in the method by which the employer does its business, some new arrangement readily distinguishable from the manner in which business is con- ducted under the collective agree- ment." In this case, the security opera- tors performed the disputed work on the employer's premises, used the employer's equipment and followed the schedule set by the employer. They were also not re- ally subject to control by Russell's supervisors. If the employer had decided to use its own employees to provide switchboard backup on the night shift, their performance of the work would have been indistin- guishable from that of the security operators, Bendel added. The grievance was therefore allowed, and he ordered the em- ployer to return the work in ques- tion back to the bargaining unit. Reference: North Bay Regional Health Centre and the Canadian Union of Public Employees Local 139. Michael Bendel — arbitrator. Thomas Davis for the union, Shane Smith for the employer. Oct. 2, 2015. Employee terminated after aggravating workplace injury GUY MACDONALD accused the Halifax Regional Water Com- mission of failing to accommo- date his disability and then firing him after he suffered a workplace injury. MacDonald suffered a back injury while working as a burner technician in 2007 and was subse- quently diagnosed with a lumbar disc herniation. Following the injury, he under- went physiotherapy and chiro- practic treatments, but found he was unable to continue working as a burner technician. MacDonald moved in and out of the province, working in several different positions. Eventually, he contacted the Workers' Compen- sation Board and reported an L4- five disc herniation relating to his previous lumbar disc herniation. MacDonald described himself as "very disabled." A workers' compensation case- worker assisted MacDonald in his job searching for several weeks, eventually connecting him with Halifax Regional Water Commis- sion after the employer posted the position of wastewater maintain- er. MacDonald was hired for the position and completed his pro- bationary period in February 2012 without incident. A few months into his work, however, MacDonald wrenched his back and went on unpaid leave. He remained on unpaid leave until January 2013, when his employ- ment was terminated. MacDonald testified he in- formed Halifax Regional Water Commission of his injury and re- sulting limitations during the in- terview process. The employer, however, argued MacDonald did not disclose any physical limitations and that if he had, he would not have been hired as his limitations prevented him from performing the majority of work done by a wastewater main- tainer. Following evaluation by the Workers' Compensation Board, MacDonald's file was transferred back to his 2007 claim, when he originally injured his back work- ing as a burner technician. The file indicated MacDonald was not a proper match for the posi- tion with Halifax Regional Water Commission based on the previ- ous injury, and that it would be unsafe to employ him because of his inability to perform the re- quired work. Because there was no claim with the employer, it argued it had no duty to re-employ MacDonald under the Workers' Compensa- tion Act. MacDonald's union, the Ca- nadian Union of Public Employ- ees (CUPE) Local 227 was made aware of his termination. The union filed a grievance, arguing the employer had a duty to ac- commodate. The union requested MacDonald be reinstated to his former position or be accommo- dated into a more suitable posi- tion. The union also requested the recovery of any lost monies, se- niority, damages or other redress that would make MacDonald whole. Arbitrator William Kydd found the employer breached the par- ties' collective agreement by fail- ing to accommodate the grievor's disability up to the point of undue hardship. Kydd also found the employer breached the collective agreement in failing to consult with the union prior to unilater- ally deciding to end MacDonald's employment. Kydd ordered the employer provide a position to MacDon- ald the next time it hired to fill a vacancy for work, leaving it to the parties to decide on the pre- cise nature of the job MacDonald would perform. Kydd also ordered MacDonald be awarded damages to the extent of the difference between the wag- es and benefits he would have re- ceived at Halifax Regional Water Commission and the wages and benefits he in fact earned in the time after his termination. Reference: Halifax Regional Water Commission and the Canadian Union of Public Employees (CUPE) Local 227. Wil- liam H. Kydd — arbitrator. John MacPherson for the employer, Karen MacKenzie for the union. Sept. 29, 2015. Canadian HR Reporter, a Thomson Reuters business 2015 October 26, 2015 ARBITRATION AWARDS < from pg. 1 Arbitrator finds employer guilty of contracting out despite lack of formal agreement.

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