Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2016 FJanuary 12, 2016 COLLECTIVE AGREEMENTS February 29, 2016 experience in microbiology. The positions were awarded to two part-time medical laboratory technologists who had microbiol- ogy experience. According to the collective agreement, the hospital is re- quired to consider first whether full-time employees are qualified for the position before considering part-time employees. OPSEU alleged the hiring pro- cess was flawed. For one, it argued the employer was restricted dur- ing the life of the collective agree- ment from introducing a new process for filling vacancies; and second, that the qualifications re- lied upon by the employer in the posting were unreasonable and arbitrary. The union also said it required job postings to be outside of each of the hospital's four laboratories and requested production of all material used by the employer to screen the successful applicants, including any submissions. The employer argued that the material requested was not ar- guably relevant to whether the qualifications in the postings were reasonable. The employer charac- terized the requests as a "fishing expedition" — an exercise to dis- cover whether there was any case at all, rather than a request for in- formation to support a case. The union was simply specu- lating that the documents might support its position, the employer said. Furthermore, experience is a different consideration in each laboratory specialty, so there is no basis for ordering postings from all departments in the laboratory, when only a posting in microbiol- ogy is at issue, the employer said. Arbitrator Lorne Slotnick agreed the union was not embark- ing on a fishing expedition — but also said the employer was right in saying the union's request was too broad. "In my view, the process used in the filling of vacancies in the laboratory beyond the microbiol- ogy department will be of no assis- tance assessing the union's argu- ments in this matter," he said. "The grievances focus on a microbiol- ogy job competition, and details of how other jobs were filled will have no bearing on whether the expe- rience requirements imposed by the employer for the microbiology positions are reasonable, nor can I see that this information will be useful in the estoppel argument or any other argument that the pro- cess used in this particular posting was flawed." Therefore, Slotnick ordered the employer to produce all job post- ings for medical laboratory tech- nologist positions in the microbi- ology department for the past five years (when the original post went up). For each posting, the employ- er must produce all screening ma- terial to the union. Reference: Health Sciences North and the Ontario Public Service Employees Union Local 659. Lorne Slotnick – arbitra- tor. Geoff Jeffrey for the employer, Elba Bendo for the union. Feb. 12, 2016. Probationary employees grieve dismissal FOUR probationary employees — Justin O'Leary, John Barbour, Da- vid McCormack and Mark Peddle — were fired from Labatt Brewer- ies Newfoundland on March 5, 2014. The Newfoundland and Lab- rador Association of Public and Private Employees (NAPE) Local 7004 filed a grievance on their be- half, arguing the workers were dis- criminated against on the grounds of union activity. The employer raised a preliminary objection that the grievance was not arbitrable because O'Leary, Barbour, Mc- Cormack and Peddle were proba- tionary employees and, therefore, did not have access to the griev- ance and arbitration procedure. The objection was denied and arbitrator James Oakley proceed- ed to review the employer's deci- sion to dismiss the employees to determine whether the termina- tions were arbitrary, discrimina- tory or in bad faith. On the date of their termina- tion, the employees had each worked less than their probation- ary period of 1,132 hours. There was a labour dispute during the parties' most recent round of col- lective bargaining prior to the signing of the current collective agreement. As a result, employees were on strike for about 11 months before returning to work on Feb. 8, 2014. Soon after, the employees in question were fired. The union argued the four were terminated so persons employed by Labatt as replacement workers during the strike could be hired. When O'Leary, Barbour, McCor- mack and Peddle were fired, the union said, they were told only that they were unsuitable to continue working. During arbitration, the em- ployer submitted the employees in question were unsuitable to continue work with the company because they were untrustworthy. According to the employer, they were stealing promotional bottle crowns, wasting company time looking for promotional crowns and failing to follow management direction to not look for or pick up promotional crowns. After returning to work fol- lowing the labour action, the em- ployer reviewed video recordings taken by a security camera in the facility. The employer submitted that O'Leary, Barbour, McCor- mack and Peddle were all seen on tape as having stolen promotional bottle crowns. It is not the employ- er's practice to discipline proba- tionary employees and, as a result, the four workers in question were terminated. The union, however, argued the video recordings did not prove theft by O'Leary, Barbour, Mc- Cormack or Peddle, nor did the recordings prove that any of the employees were untrustworthy. There was no discussion about suspicious activity in the work- place following the strike, the union said, and the employees were allowed to return to work for 20 days before being deemed un- trustworthy. The union submitted the intent behind the firings was instead re- lated to anti-union intent. The employer submitted there was no evidence of anti-union in- tent, bad faith or arbitrariness be- hind the dismissals. The employ- ees were engaged in inappropriate and unauthorized activities in the workplace and the employer did not have to prove just cause to ter- minate a probationary employee. Oakley ruled the onus of proof rests on the union, and the evi- dence presented did not establish discrimination against the em- ployees in question on the grounds of union activity. As a result, the grievance was denied. Reference: Labatt Breweries Newfoundland and the Newfoundland and Labrador Association of Public and Private Employees Local 7004. James C. Oakley — arbitrator. Darren Stratton for the employer, Ed Hogan for the union. Sept. 3, 2015. < Arbitration pg. 1 The onus of proof rests on the union and the evidence did not establish discrimination.

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