Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2016 COLLECTIVE AGREEMENTS May 16, 2016 6 Canadian HR Reporter, a Thomson Reuters business 2016 < Arbitration pg. 1 incredibly serious. Because of the potentially dan- gerous work environment, the employer implemented programs to promote plant safety and con- tinuously train employees in safe work practices. One of the employer's safe work practices was a lockout policy which required all power sourc- es be locked out before an em- ployee entered a restricted area. Millwrights carried padlocks that were used to lock out power sources and each piece of equip- ment had one or more clearly la- belled power boxes next to it. When several power boxes were located in an immediate area, a long bar could be used to lock them out simultaneously by connecting the on/off levers. On June 14, 2014, Mosiuk en- tered a restricted area and crossed over live chains without properly locking out all power sources af- ter being called to the area to look into a problem that had shut down the production line. Mosiuk testified he approached the production line from the "helper" side, which was unusual as he usually performed mainte- nance and repairs from the "op- erator" side of the production line. Mosiuk locked out the power boxes on the helper side before crossing over the line to access the operator side. When he arrived at the opera- tor side, Mosiuk saw that one of the power boxes on that side of the production line was not locked out. Mosiuk's supervisor witnessed the incident, removed Mosiuk from the area and addressed the issue with a manager. Mosiuk was asked to leave the site while the in- cident was reviewed. Following a consultation, the employer decided to dismiss Mo- siuk. Mosiuk admitted to the lock- out violation, the employer ar- gued, and there were multiple witnesses. Mosiuk knew what was required of him by the safety policies but failed to do it. Safety is taken seriously on the work site, the employer argued, and Mo- siuk's misconduct warranted seri- ous discipline. Furthermore, the employer said, the lockout violation was a culminating incident as Mosiuk had prior disciplinary offences on his record at the time, including the safety violation concerning smoking. The union, however, argued Mosiuk didn't intentionally vio- late the lockout rules. He thought he had properly locked out, and when he discovered he had violat- ed the lockout policy, he admitted his mistake and apologized. The union further argued the employer failed to take into con- sideration any mitigating circum- stances, including Mosiuk's 27 years of service. Furthermore, the union argued Mosiuk was disci- plined much more harshly than other employees who committed lockout violations. Mosiuk's disci- pline, the union said, was not con- sistent with the employer's past practices. Based on the evidence, arbitra- tor W.D. McFetridge accepted Mosiuk's testimony that he made a mistake and did not deliberately ignore the employer's lockout policy. "The grievor made a mistake but his misconduct was not so serious as to irreparably damage the employment relationship or show that he could not be trusted to conduct himself safely in the fu- ture," McFetridge said. While failing to follow the em- ployer's lockout policy was a se- rious offence, McFetridge said, it did not automatically justify a penalty of discharge. As a result, McFetridge ordered an eight-day suspension be substituted for Mo- siuk's termination. He ordered Mosiuk be reinstat- ed without loss of seniority and compensated for loss of pay and benefits. Reference: Weyerhaeuser Company and the United Steelworkers Local 1-207. W.D. McFetridge — arbitrator. Thomas Duke for the employer, Dave Mercer for the union. March 9, 2016. Mother of groom denied leave for son's wedding NANCY HAMILTON — an employee of the Toronto District School Board — requested paid time off to attend her son's wed- ding. The employer granted her the time off, but declined to pro- vide her with paid time off. Hamilton decided she would not let the denial of her request prevent her from attending the ceremony, so she took the day off and received compensation us- ing lieu time she had accumulated through overtime work. Following the request, howev- er, Hamilton's union — the Cana- dian Union of Public Employees (CUPE) — filed a grievance on her behalf. According to CUPE, Ham- ilton should have been granted a miscellaneous leave day that would have been paid for by the employer. By failing to grant that leave day, the union argued, the em- ployer violated the parties' collec- tive agreement. Under the agreement, miscel- laneous leave was set aside for purposes such as attending gradu- ations, moving to a new place of residence, attending a funeral or under special circumstances ap- proved by management. It was under the special circum- stances bracket that Hamilton ap- plied for the miscellaneous leave day. The request was denied by Employee Services, however, and Hamilton was advised to take the time unpaid or by using vacation time. The employer argued Hamilton made the request one month be- fore her son's wedding, despite the fact the ceremony was not an un- foreseen event. There was noth- ing exceptional about a wedding that would warrant leave with pay, and no extenuating circumstanc- es in the case. The union acknowledged mis- cellaneous leave was discretion- ary but argued the employer's dis- cretion to grant or deny the leave must be reasonable and take into account all of the circumstances of the individual. And while the employer as- sumed the wedding was not an unforeseen event, the union ar- gued no inquiries had been made to verify that with Hamilton. Furthermore, some of the events specifically mentioned in the collective agreement — such as graduations — were also pre- planned. The employer's rea- soning for denying Hamilton's request was arbitrary, the union said. The employer, however, argued "special circumstances" must be looked at objectively and cannot be based on the employee's sub- jective view. The right to be paid is normally dependent on the performance of work, the employer said, and therefore the right to be paid with- out working requires something that is out of the ordinary. The clauses in the parties' col- lective agreement concerning miscellaneous leave involve the exercise of discretionary power, arbitrator Larry Steinberg said. In his ruling, he found the employer fettered its discretion by its erro- neous interpretation of "special circumstances." As a result, the grievance was allowed and the employer was ordered to reinstate the lieu time Hamilton used to attend her son's wedding. Reference: Toronto District School Board and the Canadian Union of Public Employees. Larry Steinberg — arbitrator. Carolyn Kay for the employer, Cynthia Peterson for the union. May 3, 2016.

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