Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2016 ARBITRATION AWARDS February 22, 2016 local residents living beyond 30 kilometres of the project will be paid 54¢ per kilometre from their home to the edge of the "free zone" and the return trip. A local resident is defined as one living within 80 kilometres of a project, but outside the cities of Regina and Saskatoon. Sean Daly and Dale Temple are two operating engineers who were dispatched by the union to work for the employer on a proj- ect in Regina, and at the time were living in Moose Jaw and Fort Qu'Appelle respectively. Both resided within 80 kilometres of the project, but did not receive the transportation expense they claimed. According to the employer, the collective agreement clearly states the daily transportation expense is not to be paid on projects in Re- gina or Saskatoon. The employer further argued that it is inappro- priate to deal with interpretation grievances that have not been subject to negotiation in the con- struction industry, where collec- tive agreements are negotiated on behalf of all unionized employees in the industry. "If the collective agreement is interpreted and applied in the manner sought by the union, this will affect 35 other employers in the same trade division, as well as employers in other trade divi- sions who have had this uniform language in place for some time in collective agreements with these trades," the employer said. The union, however, said the employer's interpretation of the collective agreement was non- sensical, and that the employer's interpretation of the two articles together is that employees who travel from Regina to work on projects in Moose Jaw get the mileage rate while vice versa they do not. Arbitrator William Hood said there were two ways to read the local resident definition, one be- ing that local residents are em- ployees not residing in Saskatoon or Regina, and residing within 80 kilometres of a project. The other way would be that local residents are employees residing within 80 kilometres of a project that are outside of Regina and Saskatoon. "The 'but' in the definition of local resident arguably can be read to qualify the location of the proj- ect to projects that are 'outside the cities of Regina and Saskatoon' rather than to the residences of the employees that live outside such cities," Hood said. Therefore the grievance was dismissed. Reference: BFI Constructors and the International Union of Operating Engineers (IUOE) Local 870. Alan McIntyre for the employer, Gary Bainbridge for the union. William Hood – arbitrator. Feb. 5, 2016. NICU nurse denied sick benefits despite IBS pain The Ontario Nurses' Association filed grievances against North York General Hospital after Mary Ann Schinbein was denied sick benefits. One grievance alleges a failure to pay sick benefits from Oct, 15 to 26 in 2012 while the second al- leges a failure to pay sick benefits from Dec. 5, 2012, to Feb. 4, 2013. Additionally, the union argued the employer discriminated against Schinbein contrary to the Ontario Human Rights Code when it failed to pay those benefits. The union sought payment for the aforemen- tioned benefits as well as general damages. Schinbein — working in the employer's neo-natal intensive care unit — was diagnosed as having irritable bowel syndrome (IBS) in 2009. IBS is a chronic ill- ness and Schinbein's symptoms became more and more severe. In September 2012 her physician issued her an attending physician statement (APS) recommending her shifts be restricted. In Octo- ber, Schinbein's health had deteri- orated to the point where she was unable to attend work. Schinbein was off work from Oct. 15 to 25 before being deemed fit to return to full duties by her doctor. On Nov. 12, how- ever, Schinbein's symptoms once again worsened and her doctor issued her an APS indicating she would be totally disabled from performing her duties for a period of up to two months. The employer did not im- mediately accept the APS and requested a meeting with Schin- bein's doctor to discuss her con- dition. Following this meeting the employer did not accept that Schinbein was unable to work in an accommodated position, and recommended she return to work performing non-clinical duties with ready access to a washroom. In response, Schinbein's physi- cian issued a further APS restat- ing the opinion she was unfit for work. The statement cited various symptoms including severe acute anxiety, decreased concentration, irritability and a feeling of being overwhelmed as a result of dealing with a chronic illness. Schinbein did take time off work and sought treatment from a naturopath. In late January she saw her doctor and was declared fit to return to full duties in late January 2013. She returned to work in February. The employer argued it was not required to pay sick benefits for Schinbein's October absences because they were not authorized until after her return to work. It also argued her IBS symptoms had improved in December 2012 and that Schinbein could have at- tended work performing accom- modated duties. Arbitrator Norm Jesin found the evidence presented supported Schinbein's absences. "In this case I accept first the evidence of the grievor that throughout her absences in Octo- ber 2012 and again commencing in November 2012, she suffered debilitating symptoms of diar- rhea, incontinence, anxiety and fatigue that disabled her from her occupation," Jesin said. As a result, he found the employer's denial of benefits for the periods in question was a breach of both the parties' collec- tive agreement and the Human Rights Code. He therefore ordered the grievances be allowed in part. The employer was di- rected to reimburse the grievor for benefits for the period from Oct. 15 to 26, 2012, and from Dec. 22, 2012, to Jan. 18, 2013. The claim for general damages, how- ever, was dismissed. Reference: North York General Hospital and the Ontario Nurses' Association. Norm Jesin — arbitrator. Scott T. Williams for the employer, Stephen Moreau and Michael Mandarino for the union. Feb. 8, 2016. < Arbitration pg. 1 "If the collective agreement is interpreted and applied in the manner sought by the union, this will affect 35 other employers." Employee suffered from debilitating symptoms that disabled her from work, arbitrator ruled.

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