Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2016 ARBITRATION AWARDS March 28, 2016 (OPSEU) formally requested permission to gather on campus in areas like the cafeteria "for the purpose of informing students and other members of the Seneca community of imminent staffing changes at Seneca, and to solicit opinions of such." The college initially denied the request, saying it would be inap- propriate and disruptive, adding that the impact on operations was unknown. However, OPSEU said that a se- rious issue had arisen concerning the elimination of many partial- load faculty positions, the impli- cations of which the union be- lieved should be communicated to the Seneca community at large. The union said it was the college's duty to assess the request in good faith, which it did not, and there- fore the grievance was filed. Arbitrator James Hayes sided with Seneca. The collective agreement said such requests would "not be rea- sonably withheld," and because of the nature of relationships be- tween union and college, Hayes said he was surprised the issue had not come up before and with- out precedent. Hayes called the union's request "patently over-broad" and there- fore it was reasonable that the em- ployer denied the request. "The union could have, and should have, particularized its re- quest from the outset," Hayes said. "Similarly, the college could have, and should have, taken the opportunity to clarify its con- cerns." Therefore, the grievance was dismissed. Reference: Seneca College and the Ontario Public Service Employees Union (OPSEU) Local 560. James Hayes – arbitra- tor. Billeh Hamud for the union, Gregory Power for the employer. March 16, 2016. Driver dismissed under last chance agreement THE Amalgamated Transit Union Local 113 grieved the dis- missal of a bus driver after he failed to honour the terms of a last change agreement. The driver — referred to as Driver X — was terminated by Transdev Services on Sept. 10, 2015. Driver X was fired after he violated the terms of his last chance agreement with the em- ployer and his union. In the agreement, all parties agreed that any violation of the employer's transportation poli- cies would be cause for immediate termination and that an arbitrator would have no authority to modi- fy the discipline notwithstanding any provision of the Labour Rela- tions Act. Prior to Driver X's dismissal, the employer received a number of complaints from its customer, Ontario's York Region, that bus drivers had been missing (fail- ing to pick up) passengers. The employer's procedure clearly re- quired drivers to stop their bus and open the entrance door if they see an individual waiting at the bus stop, whether or not they feel the customer wants to board their bus. The procedure also required drivers to remain in the right lane at all times in order to convenient- ly and safely drop off and pick up passengers. On Aug. 31, 2015, a customer called in a complaint that a bus had driven by while she was wait- ing at a bus stop. She provided the exact date, time and location this incident occurred. An investigation was launched and Driver X admitted he was the driver of the bus that passed the customer in question. Time- stamped photographs from the video camera located inside the bus show the bus was in the mid- dle lane of the street when Driver X failed to pick up the passenger. Driver X was terminated on Sept. 10, 2015, for breaching com- pany policies and procedures by driving in the centre lane rather than the curb lane and by missing a waiting passenger. The union, however, argued the employer couldn't rely on the last chance agreement in this case because of Driver X's leave of ab- sence. The agreement was en- acted on March 22, 2013, and was in force and in effect for one year from its date of signing. Driver X was on leave from May 23, 2013, until April 20, 2015, and the incident in questions occurred long after the agreement's expira- tion. As a result, the union argued the agreement was unenforceable. The employer, however, argued the one-year clock on the last chance agreement was stopped due to Driver X's leave. Dismissal was appropriate, the employer argued, because the penalty for Driver X's infractions was preor- dained by the last chance agree- ment and an arbitrator is without jurisdiction to substitute a pen- alty. Arbitrator James Hayes found Driver X's leave did in fact stop the one-year clock on the last chance agreement, meaning the agree- ment was in effect at the time of the incident. As a result, Hayes said the in- fractions breached the last chance agreement and an arbitrator had no authority to modify the dis- cipline implemented by the em- ployer. "Driver X's last chance agree- ment frames this arbitration and that last chance agreement deprives me of jurisdiction to consider any modification of the discharge penalty imposed by Transdev," Hayes ruled. "As I have determined that the grievor breached Transdev poli- cies on Aug. 31, 2015, the griev- ance must be dismissed." Reference: Transdev Services and the Amalgamated Transit Union Local 113. James Hayes — arbitrator. Gregory Power for the employer, Alanna Mihalj for the union. March 16, 2016. < Arbitration pg. 1 Bus driver fired after passengers complain they weren't picked up accordingly along route. Union's request to gather on campus "patently broad," says arbitrator.

• Cover