Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2016 ARBITRATION AWARDS 6 Canadian HR Reporter, a Thomson Reuters business 2016 April 18, 2016 time position. The union alleged the employer was calling in casual employees or full-time employees working as casual employees in another de- partment to perform work before calling in full- and part-time em- ployees. Under the parties' collective agreement, the employer was per- mitted to schedule 12-hour shifts but overtime had to be paid for all hours worked beyond 7.5 hours per day or 37.5 hours per week. When it was necessary to call an employee in to replace a full- time employee, the employer first looked to fill the shift with a part- time or casual employee who had not yet worked the maximum number of hours per week. If no such employees were available, the employer scheduled full-time em- ployees. The union argued these last 4.5 hours of a 12-hour shift con- stitutes overtime work and were subject to the protocol for offer- ing overtime work in the parties' agreement. The employer admitted that ca- sual employees were being called in to work 12-hour shifts in pref- erence to full-time employees and paid at the overtime rate for the last four or 4.5 hours of their shift. However, the employer argued the casual employees were not be- ing paid overtime as defined in the parties' collective agreement but rather were being paid statutory overtime as required by the Em- ployment Standards Act. The employer further denied giving overtime shifts to full-time employees working as casuals in another department in preference to full-time employees regularly working in that department. Arbitrator Rebecca Thompson agreed with the employer. "When casual employees are called in or scheduled to work a 12-hour shift, the 'regular' or 'full- time hours for the position' are 12 hours per shift," Thompson said. "The express overtime provi- sions of the collective agreement are not triggered. The statutory requirements of the ESA, or per- haps a requirement in an extended hours permit, explain why pay- ments are made to casual employ- ees at 1.5 times their regular rate of pay in these circumstances." As a result, the grievance was dismissed. Reference: Hay River Health and Social Services Authority and the Public Service Alliance of Canada. Rebecca Thompson — arbitrator. Michelle Theriault for the employer, Rosalie Patrick for the union. Feb. 23, 2016. Employee denied position at Canada Post due to lack of French language competency IN 2010, Canada Post employee Roberta Hazelton bid on and ob- tained a position as a bilingual wicket clerk at the Yellowknife post office. A condition of the job — which she was awarded on the basis of her seniority — was that she be able to converse at the appropriate level in French. Prior to taking the position, Hazelton was required to undergo an assessment to de- termine whether or not she was proficient enough to qualify for French training. Hazelton passed the test and was therefore given the oppor- tunity to study French in order to meet the requirements of the po- sition. Hazelton studied for about nine months before undergoing a French language assessment. She was unable to attain the required level of competency and returned to her original position. Hazelton was also invited to maintain or improve her language by accessing continuing educa- tion tools. A similar position arose in 2014. Hazelton bid for the position and was once again awarded the job on the basis of her seniority. Canada Post was required to give employees a reasonable period of time to train to become proficient in French for a position, but because Hazelton had already been provided with the required training and failed to achieve the required level of competency, she was informed she would not be awarded the position. The Canadian Union of Postal Workers filed a grievance on Ha- zelton's behalf. According to the union, Hazel- ton should have been assigned to the position and once again given an opportunity to acquire suffi- cient French-language proficien- cy because of her seniority. The employer, however, argued its decision was a fair and reason- able exercise of its management rights to provide policy guidelines with respect to the training of em- ployees for the purpose of reach- ing bilingual proficiency. The employer argued it had no further obligation to train an employee who has already demonstrated an inability to reach the necessary level of bilingual competency. Hazelton was provided the maximum language training available to her in 2010-11, the employer said, and it haf already fulfilled its obligations to provide a reasonable opportunity to the employee to meet the language re- quirements of the position. Arbitrator Richard Hornung found the employer's position to be reasonable. "In this case, the 'seniority' of the grievor has not been adverse- ly affected, as suggested by the union," Hornung said. "She was, in fact, essentially awarded the position based on her 'raw' seniority. However, her inability to become bilingual as required by the specific terms (of the collective agreement) led the employer to effectively return her to 'a non-bilingual vacant assign- ment.'" As a result, the grievance was dismissed. Reference: Canada Post and the Canadian Union of Postal Workers. Richard I. Hornung — arbitrator. John Sharp for the employer, Roberta Mitchell for the union. Sept. 23, 2015. < Arbitration pg. 1 "The express overtime provisions of the collective agreement are not triggered." Hazelton was unable to attain the required level of competency after nine months of training.

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