Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2016 ARBITRATION AWARDS April 25, 2016 While the union agreed disci- pline was warranted — and did not seek back pay — it argued dis- missal was excessive and called for reinstatement. Loyst had nearly 18 years of se- niority, while Dervenis had nearly 16 years of seniority. As arena operators, they were entitled to two paid 15-minute breaks and a 30-minute unpaid lunch each shift. Arena operators are expect- ed to remain on-site during their lunch unless they obtain permis- sion to go off-site. Permission is obtained by phoning or texting a supervisor. For the most part, arena opera- tors are left unsupervised to carry out their duties. On May 12, 2015, the employ- er received a complaint from a customer who had rented a field where, despite multiple requests to do so, the field lights had not been turned on. An investigation was conducted and it was determined that Derve- nis had been on duty the night in question. Dervernis told the em- ployer he had been busy tending to other duties and had not heard the calls requesting the lights be turned on. Following the investigation, Dervernis was suspended for one day. Loyst had also been on duty that evening, though he had not been specifically responsible for the field in question. He was issued a written warning for being unavail- able to perform his duties. The employer soon received an- other complaint, this time from an employee claiming arena opera- tors were leaving their shifts early. Loyst and Dervenis, along with two other employees, were identi- fied as employees leaving early. The decision was made to place Loyst and Dervenis under surveil- lance. In June 2015, Loyst was sus- pended with pay pending the investigation, though he did not know the nature of the investiga- tion. Both Loyst and Dervenis were called to a meeting with the employer on June 18. Loyst, when asked about leav- ing the workplace early, said he never left before the end of his shift. He said that if he had to leave early, he would contact a supervisor first as he knew he was expected to be at work for the en- tirety of his shift. Dervernis said he would only leave early if instructed to do so by a supervisor or if he had to deal with a family emergency. He did tell the employer he had left early once after becoming covered in oil from a lubrication leak. The video surveillance of the employees showed both Loyst and Dervernis were leaving work early, leaving as much as 52 minutes be- fore the end of a shift. The employer made the deci- sion to fire Loyst and Dervernis for time theft and for being dishonest during the investigation. During the process of grieving their termination, both Loyst and Dervernis admitted to leaving work early. The union argued not all of the employees seen leaving early in the surveillance videos were terminat- ed. Others were suspended while some were only counselled. The union submitted that both Loyst and Dervenis had learned their lesson and could be trusted mov- ing forward. The employer, however, argued there was no basis for reinstate- ment. Loyst and Dervenis had been put on notice by discipline related to being unavailable for work during their shift, and yet they continued to leave early. The employer argued their wrongdoing was compounded by their dishonesty during their in- terviews. Arena operators work largely unsupervised and trust is a fundamental aspect of the em- ployer relationship. Arbitrator Jesse Nyman agreed, dismissing Dervenis' grievance. Loyst's grievance was allowed in part. Nyman ordered that he be re- instated under the condition that, should he engage in any dishon- esty-related misconduct in the 18 months immediately following his return to work, it be deemed just cause for the employer to termi- nate his employment. Reference: The City of Kingston and the Canadian Union of Public Employees (CUPE) Local 109. Jesse M. Nyman — arbi- trator. Robert Little for the employer, Peggy Smith for the union. April 10, 2016. Retired library employee in Toronto collecting sick leave gratuity payout not eligible for wage increase IN 2010, the Toronto Public Li- brary Board and the Toronto Pub- lic Library Workers Union Local 4948 adopted a new short-term disability plan called IIP. New hires would fall under IIP while existing employees were given the option of continuing with the old sick leave accrual plan or transfer- ring to the new option. Employees who did transfer were then given the option of hav- ing their accrued but "capped" sick leave credits made available for use in supplementing any poten- tial shortfalls in coverage under the IIP or receiving an immediate payout of the credits. Raymond Hickman chose to make his credits available for use in supplementing coverage under the IIP. Nearing his last day before retirement, Hickman was given the choice of taking the sick leave gratuity in the form of a single pay- ment on Sept. 30, 2014 — his last day of work — or in the form of salary continuance from Sept. 30 until the end of the period to which the value of the sick pay gratuity related which, in his case, was six months. Hickman chose the latter op- tion, which mean his "official re- tirement date" would be March 31, 2015, the end of the payment period. During that period of sick leave gratuity payout, an across-the- board wage increase took effect under the new collective agree- ment. Due to the terms of Hick- man's payout, no adjustment was made to his sick leave gratuity. The union filed a grievance on Hickman's behalf, alleging the em- ployer violated the parties' collec- tive agreement by not paying him the negotiated wage adjustment. The union called for the employer to make Hickman whole in the amount of the pay increase. The union argued Hickman was an employee at the time of the pay increase and, as such, was entitled to the economic benefits. The employer, however, argued that the fact that Hickman was re- ceiving a sick leave gratuity payout was in and of itself proof that his employment had been terminat- ed. The only reason Hickman was receiving the payout was because he had retired, even though his of- ficial retirement date was listed as March 31. Arbitrator Russell Goodfellow sided with the employer, saying that the option for the sick leave gratuity payout to be paid out over time, rather than in a single lump sum, intended only that the em- ployee be given the option of tak- ing the value of that payment in in- stallments rather than all at once. "They did not intend the amount to otherwise differ," Goodfellow said. As a result, the grievance was denied. Reference: Toronto Public Library Board and the Toronto Public Library Workers Union Local 4948, Canadian Union of Public Employees (CUPE). Russell Goodfellow — arbitrator. Clifford Hard for the employer, David Jacobs for the union. April 7, 2016. < Arbitration pg. 1

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