Canadian Labour Reporter

8 entitlement as a prior arbitration award had essentially frozen the retirement entitlement for all existing members. Therefore no new entitlements could be created, nor could existing entitlements be taken away. The union, the Windsor Police Association, agreed with the employer that the initial award had frozen retiree benefits. However, the entitlement depended on status — so if a part-time member became a full-time member, they would be entitled to the so-called frozen status of the full-time member group. Initial award The initial award, heard in front of arbitrator William Kaplan, grand- fathered members hired up to and including Dec. 31, 2014, into the post-retirement plan under the collective agreement. Therefore, the police board argued both full- and part-time workers' benefits would be frozen as of that date, and part-time employees had no entitlement. "No one who was not in receipt of retiree benefits as of Dec. 31, 2014, could subsequently become eligible for those benefits," the board argued. But as the association saw it, any individual — regardless of being full-, part-time or temporary — should be grandfathered by the current collective agreement as of Jan. 1, 2015. "If he or she became a full- time employee and would have qualified for post-retirement benefits under the current collective agreement, he or she should receive those benefits upon retirement," the association said, adding that "The collective agreement did not distinguish between 'members of service.'" Kaplan sided with the police board. The initial award froze entitlements, and there was no need to distinguish between full- or part-time because the former group is the only one that enjoyed retirement benefits, he said. "The fact is that had there been any intention to provide part-time employees with an entitlement to retiree benefits upon attaining full-time status, the award could have, and would have, clearly said as much," Kaplan said in the decision. "The entire thrust of the provision was to permanently cap entitlements — not to provide for future extensions," he went on to say. "There is nothing in the award that could reasonably be interpreted so as to give part-time employees a contingent right to future retiree benefits." Therefore, the board's position was upheld. Reference: Windsor Police Services Board and the Windsor Police Association. William Kaplan — arbitrator. Glenn Christie for the employer, Jeffrey Hewitt for the union. Nov. 9, 2015. Welder dismissed after years of excessive absenteeism MARCEL ROY was fired by Glencore Canada after years of ex- cessive absenteeism. Roy, a welder for the New Brunswick-based employer, seri- ously injured his back shortly after he began working for the company in 1983. Following the injury Roy was dogged by severe back pain that periodically affected his abil- ity to work. In 1990, he was terminated for excessive absenteeism. Though he was reinstated in 1992, Roy's back problems continued to cause him to be absent from work. Eventually, Roy ceased his work as a welder altogether, taking courses in computer program- ming for several years before re- turning as a welder in 2006. In 2011, Roy found it impossible to continue his work as a welder, so he was accommodated with a position as an attendant in the employer's main office with permanent restrictions. He continued to be plagued by back issues, however, and following several more absences, Roy was accommodated once again to work in the employer's lab. When the work in the lab proved to be too strenuous for Roy, the employer undertook an examination of all of its bargaining unit positions to target potential accommodations. It was found Roy was incapable of performing any jobs with the employer and his employment was terminated on the basis of "non-disciplinary frustration of contract." Union files grievance Roy's union — the United Steel- workers Local 7085 — grieved the dismissal, alleging the employer failed to accommodate him to the point of due hardship. The union argued the employer clearly made its decision to dismiss Roy because of his physical disability, and its efforts to accommodate him were not made in good faith. The union further argued that if reinstated, Roy would not need to be accommodated for a long time as he would soon be eligible for a pension under the parties' collective agreement. The employer, however, argued the grievance should be dismissed because Roy was in fact accommodated as required under the law. Roy worked as a welder for the company for 26 years and suffered 18 back injuries in that time. His total time off — not including the more than eight years he spent studying computer programming — was 416 weeks or the equivalent of eight years. The employer accommodated Roy 13 times during his tenure with the company. Arbitrator agrees Arbitrator Guy Couturier agreed with the employer, concluding it acted in good faith in its dealing with Roy. Couturier was further satisfied the employer made every reasonable effort to provide Roy with meaningful work that was suitable to his limitations and it did indeed attempt to accommodate him to the point of undue hardship. Furthermore, Couturier said, "there appears no likelihood, based on the experience of 2011 through to 2014, that the pattern of absence will change, nor is there any probability that back pain will improve or even be controllable." As a result, the grievance was dismissed. Reference: Glencore Canada Corporation and the United Steelworkers Local 7085. Guy G. Couturier — arbitrator. Jamie Eddy for the employer, Brenda Comeau for the union. Sept. 30, 2015. Canadian HR Reporter, a Thomson Reuters business 2015 November 23, 2015 ARBITRATION AWARDS "The entire thrust of the provision was to permanently cap entitlements — not to provide future extensions." Employee suffered 18 back injuries in 26 years, missing 416 weeks of work. < from pg. 1

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