Canadian Labour Reporter

8 ARBITRATION AWARDS Canadian HR Reporter, a Thomson Reuters business 2016 January 5, 2016 resulted in significant reduction in the number of staff and em- ployees. In January 2014, the union ac- cordingly filed a grievance, alleg- ing the employer had failed to en- sure adequate relief was available so that workers would not have been required to work more than 40 hours per week. Then, in March, the employer introduced a new time-off policy, which the union also grieved, saying it breached the collective agreement. It challenged the pol- icy on the basis it improperly re- stricted the times during the year that employees were allowed to schedule their vacation and other contractual time-off. The final decision on whether the policy was a violation of the contract was slated for the early new year but, until then, the union said the current system raised scheduling problems for employ- ees. One of the policy elements re- quired employees to submit pre- ferred vacation time for the next year by Dec. 31 of the preceding year, as annual vacation schedules were put together by the employer by Jan. 31. Therefore, the union sought an interim relief in case employees needed to make vacation adjust- ments. "It will be impossible for a remedy to be provided that al- lows those choices to be undone," the union said, adding that it's because employees will likely al- ready have made plans and com- mitments. The employer, however, said the union had failed to provide a sufficient test for granting the in- terim relief. In making his decision, arbi- trator Michael Fleming said he weighed the balance of conve- nience to both parties by deter- mining whether adequate rem- edy was possible, that the request must not be frivolous or vexa- tious, and that it must not penal- ize the respondent should the ap- plication fail. In this case, Fleming said em- ployees would presumably wait until Jan. 31 to book their time off. "While I appreciate the union's interest in avoiding the practical difficulties that could arise if the grievance challenging the policy is ultimately successful, I am not persuaded there would be irrepa- rable harm if the application is not granted," he said. "I am also not persuaded that the balance of convenience weighs in favour of granting the interim relief." Therefore, the union's request for interim relief was denied. Reference: Zellstoff Celgar and the Pulp, Paper and Woodworkers' Union Local 1. Michael Fleming — arbitrator. Nazeer Mitha and Mark Colavecchia for the employer, William Clemens for the union. Nov. 23, 2015. External circumstances affect employment PINA GHANDI filed a grievance against the Canadian Blood Ser- vices after the employer failed to consider her for a full-time posi- tion. Ghandi, with the Ontario Pub- lic Service Employees Union (OP- SEU) Local 5101, filed a job com- petition grievance when she was not awarded a full-time technical specialist position at the employ- er's Brampton site. Ghandi was denied the position after being classified as an external applicant. Ghandi started working for the employer in 2006 at its To- ronto location. Because she did not work at the Brampton loca- tion, where the technical special- ist position was located, she was considered an external applicant. Internal employees — working at the Brampton location — were given precedence. The employer operates sites in Toronto, Hamilton and Bramp- ton. All employees are included in a single bargaining unit covered by a single collective agreement, through each site is represented by a different local. The union said she was in fact an internal candidate and should have been included in the com- petition for the position, arguing "internal" — as described in the parties' collective agreement — meant internal to the bargaining unit as a whole. In fact, the collective agree- ment specifically indicated that "bargaining unit seniority" was to be taken into account in cases of relative equality in job postings, with no reference made to "site" seniority. The union called for a re-run of the competition that would include Ghandi. The employer, however, sub- mitted the word "internal" can easily be understood as referring to one of its three sites. In fact, a clause in the parties' collective agreement required that separate seniority lists were maintained for each site, the employer argued. This clause proved that the use of seniority was site-specific unless the collective agreement expressly states otherwise. According to arbitrator Russell Goodfellow, a job-posting provi- sion that distinguishes between internal and external applicants is one that distinguishes between bargaining unit members and those external to the bargaining unit. "That," Goodfellow said, "in my view, is the normal and natural reading of such a clause, regard- less of whether the employer's operations are conducted at more than one location and regardless of whether, for reasons of history, employees at the different loca- tions have separate local affilia- tions." Goodfellow submitted that the presence of separate, site-specific seniority lists does not mean se- niority rights only have meaning within the site unless expressly stated otherwise by the parties' collective agreement. As a result, the grievance was upheld. The presumptive remedy was a re-running of the competi- tion that would include Ghandi; however, Goodfellow left it to the parties to decide whether that was the preferred resolution. Reference: Canadian Blood Services and the Ontario Public Service Employees Union Local 5101. Russell Goodfellow — arbitrator. Sarah A. Eves for the employer, Jennifer Fehr for the union. Dec. 1, 2015. Provision distinguishing between internal and external applicants concerned bargaining unit, not site. Arbitrator rules inconvenience of vacation planning did not warrant interim relief.

• Cover