Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2015 November 16, 2015 ARBITRATION AWARDS payroll system with a bi-weekly one, effective July 1, 2015. The union, Unifor's Local 252 chapter, filed a grievance based on two arguments. First, Unifor argued the employer is estopped from altering its payroll practice to adopt a bi-weekly payroll sys- tem. Because Nestlé Canada had a consistent past practice of using a weekly payroll system, it should be considered an entrenched and consistent one, and therefore not subject to change arbitrarily, the union said. Arbitrator has his say However, arbitrator Norm Jesin sided with the employer in that regard. "I am of the view that a practice, even a long-standing and consis- tent practice, of an employer exer- cising its management rights in a particular way does not in and of itself amount to a representation that the employer will not change its practice," Jesin said. "It remains within the employ- er's rights to change that practice." Secondly, Unifor argued that the collective agreement implied an intention by both parties to en- shrine a weekly payroll system. The employer again disagreed, and so too did the arbitrator. "To the extent that there are references in the collective agree- ment, I am not persuaded in all the circumstances that those ref- erences establish a clear intention of the parties to enshrine a weekly payroll system," Jesin said. In addition, the union failed to show that the introduction of a bi-weekly payroll system had any substantive impact on the rights and entitlement of the employ- ees at Nestlé, under the collective agreement. Therefore, the grievance was dismissed and the employer was allowed to implement its new pay- roll schedule. Reference: Nestle Canada and Unifor Local 252. Norm Jesin — arbitrator. Nov. 9, 2015. Freebies lead to firing at Canada Post in New Brunswick VICKI BURKE was dismissed by Canada Post after it was discov- ered she was defrauding her New Brunswick-based employer. Burke was terminated on Aug. 6, 2014, after an investigation found she had breached corporate policy and defrauded the corpora- tion of funds. Burke, a postal clerk, was found to have accepted and signed for customer parcels without au- thorization and to have provided change of address and hold mail services to relatives and custom- ers without payment, resulting in a loss of revenue for the employer. According to Canada Post, postal clerks are in a position of trust and expected to act with in- tegrity. Burke was previously disci- plined for providing customers with unauthorized discounts. She was suspended for one day as a re- sult, and the employer argued this previous discipline was consid- ered as contributing to progres- sive discipline when Burke was terminated. The employer argued her con- tinued defrauding of Canada Post constituted major misconduct. Burke wrote a letter of apology promising to follow the corpo- rate policy to the letter if given a chance to prove herself. Her union, the Canadian Union of Postal Workers, argued Burke was discharged without just, rea- sonable or sufficient cause. Arbitrator weighs circumstances Arbitrator Wayne Thistle con- sidered the case's mitigating cir- cumstances, taking into account the fact Burke was a long-service employee of 19 years, as well as the fact she received no personal financial benefit from her miscon- duct. Thistle also considered Burke's letter of apology to the Canada Post and his opinion that there was a very reasonable likelihood that she would exhibit good be- haviour in the future. Additionally, Thistle made note of the fact Burke made no effort to conceal any of her actions. Accordingly, he said, it could be presumably concluded Burke thought these actions were not contrary to Canada Post's corpo- rate policy. This was further supported by the fact that there was no indica- tion Burke's misconduct had any negative impact on customers, nor did it cause any damage to the employer's reputation. Imposing discipline Thistle acknowledged that when an employer imposes disciplinary sanctions, this is done, in part, to deter other employees from en- gaging in similar misconduct. However, he found a substi- tution of Burke's dismissal for a lengthy suspension would not compromise this deterrent effect. "After careful consideration of all the evidence and the argu- ments, I am not satisfied that there are grounds for the dis- charge of the grievor," Thistle ruled. "Her conduct was egregious in that there was a serious violation of corporate policy and proce- dures but I cannot conclude that the bond of trust in the employ- ment relationship was so irrepa- rably compromised that she could not be reinstated." Thistle therefore substituted Burke's termination for a time- served suspension without com- pensation. He ordered she be reinstated without any retroactive com- pensation or benefits within two weeks of his ruling. Reference: Canada Post Corporation and the Canadian Union of Postal Workers. Wayne Thistle — arbitrator. Melanie Crescenzi for the employer, Jim Gallant for the union. Oct. 8, 2015. Mitigating factors such as long service and employee's apology considered by arbitrator. Bi-weekly payroll system not found to impact rights of employees. < from pg. 1

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