Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2016 ARBITRATION AWARDS May 23, 2016 < Arbitration pg. 1 years, given access to an electric lift when supporting students in wheelchairs and trading duties with other special needs assis- tants when the demands of the position exceeded her limitations. On April 30, 2015, Morrissey submitted an updated list of re- stricted activities that included any bending or twisting of her knees. In June 2015, the employer indicated Morrissey would need to be moved to another assign- ment as the incoming class of students included "runners" and those with "toileting issues." Mor- rissey's restrictions could create safety concerns with these new students. No changes were made, how- ever, and in the new school year Morrissey continued to be ac- commodated. On Sept. 28, 2015, Morrissey was asked to clarify her restric- tions after she asked to be re- lieved of two excursions with the students. She clarified she could not walk more than two blocks at her own pace and required a rest- ing period of 10-15 minutes. Ad- ditionally, she was restricted to standing for less than 30 minutes. Following these clarifications, the employer advised Morrissey she could no longer be accom- modated due to her inability to provide support for "DF," a "high needs" student under her super- vision. Morrissey was required to remain off work until a temporary alternative accommodation could be found that would not compro- mise her restrictions. On Oct. 19, 2015, the employer placed Morrissey on sick leave. Her union, the Canadian Union of Public Employees (CUPE) Lo- cal 4400, filed a grievance on her behalf. Accommodation must be provided, the union argued, unless this would cause undue hardship. Previous efforts to ac- commodate Morrissey — such as trading responsibilities be- yond her abilities with other spe- cial needs assistants — had been working well previous to her re- moval from the workplace. The employer voiced concerns about Morrissey's ability to pro- vide support for students consid- ered to be "runners" but did not address the issue with her or the union. "The Toronto District School Board had to demonstrate it was impossible to accommodate the grievor without unreasonably risking safety — demonstrating undue hardship," said arbitrator Tanja Wacyk. "While the employer can rely on their common sense and knowledge of the work at issue to inform their assessments, asser- tions of undue hardship will not be sustained if based only on spec- ulative or unsubstantiated con- cerns regarding possible negative impacts resulting from accommo- dation." In failing to meet the proce- dural dimensions of its duty to accommodate, Wacyk found the employer discriminated against Morrissey. Further, Morrissey suffered humiliation, pain and suffering as a result of the employ- er's actions, she said. Accordingly, the grievances were allowed and Wacyk ordered the employer to compensate Mor- rissey for lost wages and benefits, including the top-up between her sick leave pay and regular wages. The employer was also ordered to pay $5,000 in general damages. Reference: Toronto District School Board and the Canadian Union of Public Employees (CUPE) Local 4400. Tanja Wacyk — arbitrator. Simon Mortimer for the employer, Megan Reid for the union. May 11, 2016. Call centre employees grieve after working weekends THE Household Loyalty Team (HHLT) at Bell Canada's Ontario- based call centre was a Monday- to-Friday operation with vary- ing shifts. Employees bid on the shifts, using their seniority. Subsequently, the HHLT began operating Monday-to-Saturday and employees continued to pro- vide their shift preferences, with the most senior employees avoid- ing the least desirable shifts. In 2002, however, the employer shifted to become a seven-day- per-week operation. Ultimately, the employer deemed the shift bidding system to be unfair, with less senior employees covering all of the weekend shifts. As a result, Bell implemented a "fairness by rotation" policy. The new policy required all employees to work weekend shifts on a rotat- ing basis. Employees' shift preferences (other than weekend rotations) continued to be assigned by pref- erence in order of seniority. Union files policy grievance Several employees filed individual grievances concerning the change and Unifor Local 6007 filed a pol- icy grievance. The union argued the change breached the parties' collective agreement because it gave no consideration to senior- ity and called for the policy to be reversed. The employer argued its fair- ness by rotation policy was the best way to maintain employees' work-life balance. If only em- ployees with lower seniority were required to work weekend shifts they would likely become de- moralized, the employer argued. These employees would burn out and the company would likely ex- perience a decline in attendance. Arbitrator weighs in Arbitrator Christine Schmidt found the union's arguments to be lacking. "For one thing," Schmidt said, "the union fails to recognize that seniority is only one factor that warrants due consideration. The other is the company's business requirements. Neither factor trumps the other." At one time, the assignment of weekend work was not even a consideration of the collective agreement as seniority was used solely for the purpose of deter- mining shift start times in the company's Monday-to-Friday schedule. "With the introduction of a seven-day operation, and the em- ployer's ultimate decision that no employee should be exempt from a share of weekend shifts, the most senior employees are still able to utilize their advantage securing the 'best' (most desir- able) available shift start times, and they are also able to use their seniority advantage to select the most preferred days off," Schmidt said. The employer has a legitimate business interest in maintain- ing the morale of the more junior employees and Schmidt found the employer was entitled to weigh is- sues of fairness and work-life bal- ance. As a result, the grievance was dismissed. Reference: Bell Canada and Unifor Local 6007. Christine Schmidt — arbitrator. Evan Van Dyk for the employer, Craig Floor for the union. May 13, 2016. "The union fails to recognize that seniority is only one factor that warrants due consideration."

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