Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2016 January 19, 2016 ARBITRATION AWARDS January 18, 2016 For the month following his return to work, he was paid at his regular rate. After that, his pay was reduced by $5.93 per hour, or the rate for a "labourer" clas- sification. His union, the Cana- dian Union of Public Employees (CUPE), filed a grievance on his behalf. According to the union, the employer failed to accommodate Bossence and was therefore in violation of the collective agree- ment and the Human Rights Code. The employer's practice of reducing an employee requiring the use of a licence to the labourer rate should their licence be sus- pended for any reason did not ap- ply here, the union said. "The grievor had been properly accommodated upon his return to work but, after a month, that changed," the union said. "The grievor had a disability under the Ontario Human Rights Code and he had, therefore, a legal entitle- ment to accommodation that sus- pended any agreement the parties may have made." The duty to accommodate was not taken into consideration and the grievor's pay was unilaterally and arbitrarily reduced, it said. Moreover, there were plenty of willing and able employees avail- able to drive Bossence to and from his jobs, typically a two-person crew, and Bossence was able to operate the equipment and per- form the work on-site, the union added. Therefore, the employer was not experiencing any "undue hardship," the union said, add- ing that "Reducing pay in these circumstances was contrary to law and contrary to the collective agreement." The municipality, on the other hand, said the labourer designa- tion did not have any specific duties or functions attached to it, which would account for em- ployees without a driver's licence. Wage rates are determined by a number of factors, not least of all an employee's qualification, the employer said. "The wastewater operator classification required a driver's licence. That was in part the basis upon which that wage rate had been established in negotiations with the union," the employer said. "The grievor should not be paid for a qualification he did not pos- sess that was reflected in the job rate. To pay the wastewater opera- tor classification rate would be to overpay the grievor." Arbitrator William Kaplan agreed with the union. Bossence was an extremely se- nior employee — with 29 years of service — and was suffering from a disability. As an employee with a disability, he was entitled to ac- commodation, which should have been mutually agreed upon. Instead, the employer contin- ued to pay Bossence his regular rate for one month before reduc- ing it without much consider- ation. "This is the direct antithesis of what the accommodation ob- ligation requires," Kaplan said. "The essence of accommodating people with disabilities is indi- vidualization. The union, the em- ployer and the employee must be involved and all options must be considered. That did not happen here." Therefore, the grievance was dismissed and Kaplan ordered Bossence be made whole for any lost wages. Going forward, he would be paid the wastewater op- erator rate. Reference: Municipality of Chatham-Kent and the Canadian Union of Public Employees (CUPE). Scott Williams for the employer, Duncan Bronson for the union. William Kaplan — arbitrator. Jan. 7, 2016. Paramedic fired for absenteeism, once again A PARAMEDIC and 15-year employee for Emergency Medical Care in Nova Scotia was fired for excessive absenteeism, twice. The employee — referred to in arbitration as "AB" — was first terminated by the employer in 2012. His union, the International Union of Operating Engineers Lo- cal 727, grieved the dismissal and he was reinstated through a Re- turn to Work Agreement in 2014. Beginning in 2010, the employ- er had growing concerns about AB's declining performance, use of sick leave and absences from the workplace. Following a num- ber of warnings AB was dismissed for his ongoing absenteeism, his failure to report to work as sched- uled and his failure to report to appropriate supervisors when he was unable to attend his sched- uled shifts. Following his dismissal, AB made it clear his absenteeism was related to an addiction to alcohol arising from anxiety and depres- sion. This information was un- known to the employer prior to AB's termination, and the parties agreed to settle the grievance with a Return to Work Agreement. The agreement, in part, stated the employer could rely on AB's past absenteeism to dismiss him for just cause. The agreement also required AB to report his inability to attend work in a timely manner. AB returned to work in August 2014. In September, he missed several shifts and provided a doc- tor's note to the employer. The employer was concerned the note did not address its concerns about AB's sudden departure from work and asked for further clarification. A second note was provided but the employer continued to have concerns, asking AB for per- mission to discuss his condition with his physician. AB agreed to give the employer full access to his doctor. The night of Dec. 19, AB suf- fered from periods of insomnia and diarrhea. He attempted to call his supervisor at about 6:45 a.m. to report he would not be attend- ing work as a result of his illness. He was not, however, successful in connecting with the employer. At 7:04 a.m., a manager called AB to find out where he was and whether he was running late due to the weather conditions. AB did not answer so the manager sent him a text message. AB replied through text message to tell the manager he would not be coming in. Management met to discuss AB's absences and on Jan. 5, he was fired. The union grieved the termination, arguing AB's addic- tion and mental health issues were the root cause of his absenteeism. Despite his personal difficulties, AB had always been compliant, even giving the employer access to his doctor. The union further argued that AB did attempt to alert the em- ployer he would be unable to at- tend work on Dec. 20 as a result of his illness but was unable to reach his manager before his 7 a.m. shift. Considering all of these miti- gating circumstances, the union argued AB should be reinstated with retroactive pay and benefits. The employer, however, argued that almost immediately after get- ting a second chance at employ- ment, AB had fallen back into his old ways. Arbitrator Augustus Richard- son was satisfied AB's illness the night of Dec. 19 was a valid medi- cal condition that prevented him from attending work on Dec. 20. However, he was also satisfied AB failed to notify the employer prior to the start of his shift that he would not be attending work. Richardson said AB's one attempt to reach his employer was not a sufficient effort. "The requirement to provide notice — and, in particular, ad- vance notice — as soon as possible is all the more important in the case of the employer," Richardson said. "It provides ambulance and paramedic service to injured and sick people. The safety of its para- medics and the public it serves de- pends upon its ability to provide fully staffed ambulances." Richardson found the employ- er's decision to terminate AB was reasonable and the grievance was dismissed. Reference: Emergency Medical Care Inc. and the International Union of Operating Engineers Local 727. Augustus Rich- ardson — arbitrator. Rebecca Saturley and Michelle Black for the employer, David Wallbridge for the union. Nov. 29, 2015. < Arbitration pg. 1

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