Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2016 ARBITRATION AWARDS March 21, 2016 policy that would end in auto- matic termination for employees with unexcused absences exceed- ing more than 10 per cent of their scheduled shifts between July and the following June. At the end of 2014, a number of employees exceeded the 10 per cent threshold for unexcused ab- sences, but because those calcula- tions were made over a six-month period, the parties agreed no action would be taken at that time and the policy would instead be imple- mented for the following year. At the end of 2015, the griev- or's rate of unexcused absences exceeded 27 per cent, with the exception of one doctor-excused absence. That reduced Rowe's ab- sent rate to 26 per cent, and MLSE fired her. However, the union noted the grievor did have medical issues during the period in question, as she was suffering from back pain and had been placed on modified duties. Therefore, the union said Rowe should be reinstated and made whole for lost wages. The problem, according to the employer, is Rowe did not provide any medical evidence to support the subsequent absences. At the hearing, Rowe said her mother had been recovering from an injury and that she required additional care — but the evi- dence did not support her claims. Arbitrator Norm Jesin dis- missed Rowe's grievance, saying the attendance policy was a rea- sonable one. "The grievor's absentee record in this case is certainly excessive," Jesin said. "The facts of this case do not, in my view, support the substitution of a penalty that is different than the specific penalty agreed to by the parties in the policy. The em- ployer was justified in the circum- stances." Therefore the grievance was dismissed. Reference: Maple Leaf Sports and Entertainment and the Teamsters Union Local 847. Norm Jesin — arbitrator. Les Fisher for the employer, Fernanda Santos for the union. March 7, 2016. Grievance a moot point for temporary employee LABOURER Murray Hussey was not hired for a temporary position with the Newfoundland and Lab- rador Housing Corporation and, instead, an employee with less ex- perience was selected for the job. So the Canadian Union of Pub- lic Employees (CUPE) Local 1860 filed a grievance on Hussey's be- half, requesting he be placed in the job and receive any lost wages and benefits — with interest — retroactive to the date of hire of the person selected for the posi- tion. The employer, however, argued the issue was not open to arbitra- tion because Hussey was not an employee on the date the griev- ance was filed. Hussey first started working for the employer in a temporary labourer position in 2009. The temporary position lasted for sev- eral weeks. In 2010, 2011 and 2012, Hussey received letters of employment from the employer informing him he had been hired on for subse- quent temporary positions. In 2014, Hussey applied for the position of labourer and attended an interview but was not offered the position. Hussey testified he was con- fused as to why he was not se- lected for the position. In the past, Hussey said, he had been recalled to work by the employer and had not needed to apply for the labourer positions. The em- ployer had always called him back to work without an interview, Hussey said, and he had never been informed of any problem with his work performance. Hussey testified he had prior experience in the position and, in fact,, he had more experience than the candidate eventually se- lected for the position. The union argued Hussey should have been recalled in 2014 for the temporary labourer posi- tion, as he had in past years. The union argued that although the letters of employment issued to Hussey stated he was a temporary employee, the employer had for years treated him as a seasonal employee. As a seasonal employee, the union said, Hussey was essen- tially on layoff in the periods of time between employment and, as such, continued to be an "em- ployee" as defined by the parties' collective agreement. The union argued that because the employer treated Hussey like a seasonal employee — recall- ing him for work each year with- out subsequent interviews — he should benefit from the rights of a seasonal employee. The employer, however, ar- gued the issue was a moot point. Hussey's temporary position had concluded on March 31, 2014. The grievance was not filed until Aug. 19, 2014, long after Hussey had ceased to be an employee. As a result, Hussey did not have ac- cess to the grievance and arbitra- tion procedure. Furthermore, the employer argued all of the letters of em- ployment sent to Hussey clearly stated he was a temporary em- ployee. Temporary employees do not accrue seniority, which is why Hussey's name did not appear on any seniority list. Had he been a seasonal em- ployee, the employer argued, he would have been listed on the company's seniority list. Arbitrator James Oakley sided with the employer. Oakley de- nied the union's submission that Hussey was a seasonal employee, finding Hussey was employed for a specific period of time each year. Because Hussey's employment as a temporary labourer was ter- minated on March 31, 2014, he did not have seniority rights or recall rights under the parties' collective agreement. He was not an employee and, therefore, the grievance was not arbitrable. The grievance was denied. Reference: Newfoundland and Labrador Housing Corporation and the Canadian Union of Public Employees Local 1860. James C. Oakley — arbitrator. David Pike for the employer, Ed O'Keefe for the union. Aug. 10, 2015. < Arbitration pg. 1 "The grievor's absentee record in this case is certainly excessive." Hussey's temporary employment was terminated and he, therefore, did not have access to the grievance and arbitration procedure.

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