Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2016 ARBITRATION AWARDS May 2, 2016 computerized centralized schedul- ing system that allows workers to input their availability to take on additional shifts at specific times. Morgan used KRONOS to record that she was available to work on all weekends for which she was not reg- ularly scheduled. She did this at the beginning of the year. Because Morgan was the most senior nurse in her unit, Morgan was the first nurse called to take on a shift if she was listed as being avail- able. Under the parties' collective agreement, employees required to work three weekends in a row would receive premium pay. In an effort to procure as much premium pay as possible, Morgan listed herself as available for any weekend shifts she was not regularly scheduled for to ensure she would be called should the need for an em- ployee arise. Morgan had no obligation to ac- cept such shifts even if she had pre- viously indicated in KRONOS that she would be available for a shift. The parties' collective agreement also stipulated that employees re- questing weekend work would not receive the premium rate of pay. The employer argued that because Morgan listed herself as available for those weekend shifts she was not already scheduled for, she was re- questing those shifts. As a result, the employer said, Morgan was not entitled to premi- um pay. The purpose of the premium was to compensate nurses for the inconvenience of working a shift they might not wish to work, the em- ployer argued. If the nurse expressed an interest in accepting that shift, no such purpose was served by pay- ment of the premium. The union, however, submitted that indicating availability was not synonymous with requesting work. When Morgan indicated her avail- ability for weekend shifts in KRO- NOS, the union said, she was under no obligation to accept those shifts should they become available. Arbitrator James Hayes agreed with the union, saying he was unable to conclude that merely by entering her availability in KRONOS, Mor- gan was actually requesting to work any particular shift, let alone every overtime weekend shift that might possibly become available. "If indicating availability were to be construed as equivalent to an ac- tual request by a nurse to work each and every shift later identified as ac- tually available, it would be reason- able to assume a reciprocal employ- er expectation that the nurse must accept that shift if and when offered," Hayes said. "But that is not the case." The grievance was allowed and Hayes remained seized in the event of any dispute about the remedy. Reference: William Osler Health System and the Ontario Nurses' Association. James Hayes — arbitrator. Robert Little for the employer, Vanessa Kee Yanagawa for the union. April 15, 2016. Correctional officer suspended after inmate incident TONY HOLDER — a correctional officer working at the Women's Correctional Centre in Headingley, Man. — was suspended without pay for insubordination. In December 2013, Holder opened the door to inmate B.F.'s cell in the secure unit and a resulting in- cident led to his being suspended for seven days without pay. At the time of the incident, Holder had a prior disciplinary record. In the days leading up to the in- cident, Holder's supervisor, Brian Benes, restricted B.F. to her cell after she repeatedly acted aggressively to- ward officers, yelling and spitting at them. Benes documented that restric- tion on the electronic Correctional Offender Management System (COMS) and wrote a report on the matter. Once a temporary restriction was issued, Benes said, it could not be al- tered except by the supervisor. After several days, B.F. continued to be a problem. Benes asked Holder and another officer to accompany him to see her and found that her cell was covered with urine and feces. Benes said Holder was frustrated with the situation and wanted to get B.F.'s cell cleaned out. Benes, however, said B.F. was us- ing the mess as leverage to get out of her cell, and said she could not be allowed out until she had calmed down and resumed following in- struction. After lunch, Holder approached Benes to say he had spoken to B.F. and believed she was ready to follow instruction and clean out her cell. Benes said he told Holder to take ei- ther paper towel or wipes to give to B.F. through the mail slot in her cell door and instruct her to clean off the window and the video camera in her cell. If B.F. could follow those instruc- tions, Benes said, Holder should report back to him and he would lift the restriction. A few hours later, there was a radio call for Benes to attend the secure unit as B.F. was refusing to go to her room. B.F. had barricaded herself in the sub-unit and was using a plastic wet floor sign as a weapon. Benes called a code and pepper spray was used to safely return B.F. to her cell. No officers were injured during the incident. All of the officers involved were required to file reports on the inci- dent. One of the officers reported that Holder told her to open B.F.'s cell to allow him to give the inmate a mop and bucket so she could clean her cell. The officer informed Holder that Benes had restricted B.F. to her cell and Holder replied that Benes had given him permission to open the cell. Following an investigation into the incident, Holder was suspended without pay. His union, the Mani- toba Government and General Em- ployees' Union, filed a grievance on his behalf. Holder said he approached Benes after lunch to tell him he had spoken with B.F. and believed she was will- ing to follow instructions and clean her cell. Holder said Benes told him to go ahead and that he understood that to mean he should take supplies to her cell. Holder denied Benes specified he should only provide B.F. with clean- ing supplies he could fit through the mail slot in her cell door. He would not have gone to the cell with clean- ing supplies without Benes' specific instructions, Holder said. B.F. was calm when Holder ar- rived, but when the door was opened she became aggressive, forced her way out and then refused to return to her cell. While it was clearly, in retrospect, a bad deci- sion to open the cell door, the union argued it was not an act of insubor- dination on Holder's part. He had simply misunderstood Benes' in- structions. Arbitrator Martin Freedman did not accept the argument Holder had misunderstood Benes' intentions. "On the issue of whether Benes, either explicitly or by reasonable im- plication, gave Holder permission to open the door to give the inmate cleaning supplies, I do not accept Holder's evidence or his interpreta- tion of what Benes said," Freedman said. "I find that his actions constituted a violation of the order and direction from Benes not to open the cell door. Such actions were insubordinate." As a result, Freedman found the employer established just cause to discipline Holder and the grievance was dismissed. Reference: Province of Manitoba and the Manitoba Government and General Employees' Union. Martin H. Freedman — arbitrator. Keith D. Labossiere for the employer, Helen Krahn for the union. March 11, 2016. < Arbitration pg. 1 "His actions constituted a violation of the order and direction... not to open the cell door."

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