Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2016 ARBITRATION AWARDS March 7, 2016 the 30 that he said the collective agreement entitled him to. According to the agreement, employees are entitled to 30 days of vacation in the calendar year they complete 25 years of service. The union said Fowler was entitled to 30 days of vacation at the beginning of 2013 but the employer did not give him the 30 days annually until the start of 2014. When the City of Toronto amalgamated, Fowler ended up with two separate service dates, further complicating the matter. However, CUPE said there was no difference between se- niority and employment, for the purpose of vacations. Therefore, he was entitled to move up the 30-day entitlement to 2013, as hu- man resources had used the 1989 amalgamation date (as opposed to 1988), for recordkeeping pur- poses. Therefore, the union said Fowl- er should be given 5 days off at the current wage rate. Toronto Hydro, however, said it dealt with "employment ser- vice." As of January 2013, Fowler had 25 years of service under his belt, as he started with the previ- ous utility — or the City of York at the time — in 1989, when Fowler would have begun with no senior- ity. The employer said it has con- sistently used the 1989 date, and that if seniority and service were indeed interchangeable, senior- ity is not interchangeable with the seniority list. Arbitrator Lorne Slotnick agreed with Toronto Hydro. Because the term "employment service" is not explicitly defined in the collective agreement, Slot- nick said the words must carry their normal and ordinary mean- ing — that is, the amount of ser- vice at Toronto Hydro and York Hydro, but not service with the City of York. Slotnick said the union's inter- pretation conflates employment service with seniority and the se- niority list in all circumstances. But vacation entitlement is not based on seniority, it's based on employment service. "While seniority is defined as length of service with the em- ployer, employment service is not defined as an employee's place- ment on the seniority list. Thus, even though in most cases senior- ity and employment service will be identical under this collective agreement, they may differ here. What governs for vacation en- titlement, according to the col- lective agreement, is employment service rather than seniority," he said in the decision. Since Fowler did not work for the City of York but for York Hydro when it was spun off, he was not entitled to 30 days of va- cation. Slotnick dismissed the grievance. Reference: Toronto Hydro and the Canadian Union of Public Employees Local 1. Lorne Slotnick — arbitrator. Sven Poysa for the employer, Leanne MacMillan for the union. Feb. 8, 2016. Failure to follow reporting procedure leads to firing The improper reporting of a com- plaint at Extendicare's long-term care facility in London, Ont., re- sulted in dismissal. Anna Schurmans was fired after she failed to follow proper procedure for registering a com- plaint. Schurmans was working as a full-time activity aide when a resident's son approached her with concerns about his mother's care. The woman in question, re- ferred to as Resident X, was in the final stages of life. Her son had been advised of her condition and, as a result, was in the facility on a regular basis. Resident X's son was at the facility on Oct. 28, 2015, and ap- proached Schurmans to voice concerns about the staff. He had been called hours before and been notified his mother was ac- tively dying, but when he arrived at the facility, she was in stable condition. He told Schurmans he had doubts about the nurse pro- viding care for his mother. Schurmans later repeated this information to her co-worker, Margaret Johnson. Johnson then relayed this information to Helen Klus, the nurse providing care to Resident X. Klus entered a note into Resident X's progress report stating the resident's son had voiced concerns about her care and made a complaint to Schur- mans. The note prompted an in- quiry the following day. Man- agement spoke first to Klus and then to Schurmans. Schurmans was asked to formally submit the complaint — as is required by company policy — so it could be properly addressed. Schurmans declined, stating Resident X's son had spoken to her in confidence and that he had just been stressed out and was venting, rather than making a for- mal complaint or attempting to have any employee disciplined. The employer continued to investigate the matter and subse- quently held a meeting with Sch- urmans and Margaret Glasgow, union steward for Unifor Local 302. Schurmans was reminded in the meeting that she was obligat- ed as an employee to report any and all concerns to the appropri- ate management staff. Because of her failure to report the incident initially and because of her subse- quent refusal to provide a report when asked to by the employer, Schurmans was terminated. Unifor filed a grievance on Shurmans' behalf requesting she be returned to work. The union argued the onus is on the employ- er to demonstrate Schurmans was acting with intent to harm the employer's interests or the inter- ests of its residents, and there was no evidence to suggest that intent. The union also submitted that Schurmans was a longstanding employee with 12 years of senior- ity. Her only previous discipline was a five-day suspension, the union argued, and dismissal for an unrelated incident did not log- ically follow in the application of progressive discipline. The employer, however, argued the essential trust between em- ployee and employer was dam- aged beyond repair. If just cause for dismissal was not proven, the employer submitted the circum- stances were not an appropriate case for reinstatement. Arbitrator Christopher White found Schurmans guilty of work- place misconduct but did not support a finding of just cause for discharge. "Notwithstanding that con- clusion," White said, "this is not a case in which reinstatement is ap- propriate." Considering the mitigating circumstances as well as the em- ployer's ongoing concern about Shurmans' honesty and judg- ment, White ordered an award of damages in lieu of reinstatement. White considered Schur- mans' hourly rate, value of ben- efits and several contingencies in determining damages. While the parties will need to perform an exact calculation, White said Schurmans was entitled to either her statutory entitlements as owed to her under the Employ- ment Standards Act or the sum of $11,089.65, whichever is greater. Reference: Extendicare and Unifor Local 302. Christopher C. White — arbitrator. Peter Vanderkloet for the employer, Robert Buchanan for the union. Feb. 24, 2016. < Arbitration pg. 1

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