Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2016 ARBITRATION AWARDS June 13, 2016 6 Canadian HR Reporter, a Thomson Reuters business 2016 temporary, full-time registered nurse position. The new position maintained her place at the top pay rate. Then, in early 2013, Davis was transferred to a temporary public health nurse position. As a result of the transfer, Da- vis moved from step 5 of the reg- istered nurse classification — the top pay rate — to step 3 o the pub- lic health nurse classification. Davis worked as a public health nurse for about one year and moved up to step 4 of the grid. Fol- lowing this period, she success- fully applied for a permanent full- time position in the registered nurse classification. She moved back to the top pay rate of step 5 in the registered nurse salary grid, which was a smaller salary than what she was making as a step 4 public health nurse. After taking a pay cut to secure a full-time position, Davis moved to a permanent full-time public health nurse position on March 24, 2015. As a result of the move, she was once again moved from step 5 on the registered nurse grid to step 3 on the public health nurse grid. Davis' union, the Ontario Nurs- es' Association (ONA), argued that because of Davis' experience as a temporary full-time public health nurse, she should have been placed at step 4 in her new permanent position in 2015 in- stead of 2tep 3. Davis had previously reached that step in the pay scale and the employer's failure to return her there was a violation of the parties' collective agreement, the union said. The employer, however, argued Davis voluntarily moved to a low- er classification to obtain perma- nent status. In order to gain per- manent employment, there was a trade-off. The employer further argued there was nothing in the collec- tive agreement that allowed em- ployees to receive credit for the same experience more than once. Davis moved from step 3 to step 4 when she was a temporary public health nurse. Davis left her experi- ence credit behind when she took a demotion, the employer said, and she could not claim that credit again now that she had been hired on as a public health nurse in a permanent, full-time capacity. According to arbitrator Lorne Slotnick, the structure of the parties' collective agreement suggested that the union and employer agreed that nurses pro- moted from the top of the regis- tered nurse scale had enough skill and experience that they should not have to start at the bottom of the public health nurse scale. However, employees promoted from the registered nurse scale did not have the full range of skills and experience to be placed at the top of the public health nurse scale. "Moving to the top of the scale requires some time in the job," Slotnick said. Considering Davis' experience, however, Slotnick found it was not proper or reasonable for the em- ployer to place her at step 3 when she was moved back to the public health nurse classification. As a result, the grievance was allowed and Slotnick ordered Davis be ful- ly compensated. Reference: The Regional Municipality of York and the Ontario Nurses' Association. Lorne Slotnick — arbitrator. Wesley Booker for the employer, Vanessa Kee Yanagawa for the union. June 2, 2016. Saskatchewan employee fired for alleged theft THE Prince Albert Co-Operative Association in Saskatchewan fired Greg Snaith after he alleg- edly stole two windows. The em- ployer also reported the theft to police before addressing the issue with Snaith, which resulted in a criminal charge. Snaith's union, the Retail, Wholesale and Department Store Union Local 496, requested he be reinstated and made whole. Snaith worked as a yard fore- man for the employer's Saskatch- ewan-based Agro Centre. He be- gan working for the employer in 2005 and had a clean disciplinary record until his 2013 termination. Before his dismissal, Snaith was building a new home and had purchased materials and products for his home from the employer. Among those items were a num- ber of windows, some from stock and some newly ordered. Snaith was not invoiced for two of the windows delivered to his con- struction site. Because of comments Snaith reportedly made about the win- dows, and what the employer con- sidered to be suspicious circum- stances surrounding the events, it was concluded Snaith had stolen the windows. As a result, his em- ployment was terminated. Snaith argued the entire thing was a mistake. He did not steal the windows, he said, the employer simply forgot to include them on the invoice. According to Snaith, it was not unheard of for inventory to be delivered without an invoice, and in the months prior to his dis- missal, Snaith had raised the issue of missing or damaged inventory with his managers. When the or- der first arrived at the employer's centre, Snaith discovered two windows were missing from his order. He reported this to man- agement, saying that the windows could likely be found for sale on- line based on the way materials had been going missing recently. The employer, however, testi- fied Snaith was overheard saying the windows could be found for sale online, insinuating that he had placed the windows for sale. Because construction of his house was ongoing, Snaith chose two other windows from the em- ployer's inventory to be included with his order when it was deliv- ered to his construction site. He asked management to bill him for the windows. When the order was delivered, the windows were not included on the invoice. Weeks later, two windows were discovered to be missing from an- other customer's order. The win- dows missing were the same type of windows Snaith had needed and the employer came to the conclusion that Snaith had stolen the windows. Management decid- ed to go to Snaith's construction site to confirm whether the win- dows missing from the customer's order were indeed those taken by Snaith. Following this trip, the suspect- ed theft was reported to the police and Snaith was suspended pend- ing further investigation. Snaith was charged with pos- session of stolen property under $5,000 and fired. While it was normally the employer's prac- tice to conduct an investigation, management said it did not want to jeopardize the police investiga- tion into the matter. No hearing was held by the employer regard- ing the allegations. "The burden on the employer is to prove, on a balance of probabili- ties, that the grievor committed the act of internal theft. This is a very serious allegation," the arbi- tration board said in its ruling. "The employer failed to give the grievor the right to be heard before jumping to the conclusion that this was theft. The right to a fair and impartial hearing regard- ing a work-related problem is a right the employer provided its employees. It is a right set out in the employee handbook. The em- ployer jumped over this step." As a result, the grievance was sustained and Snaith's termina- tion was set aside. The arbitration board ordered Snaith be reinstat- ed and made whole for loss of pay, benefits and seniority. Reference: Prince Albert Co-Operative Association Limited and the Retail, Wholesale and Department Store Union Lo- cal 496. William F.J. Hood, arbitrator; Randy Wassermann, employer nominee; Gloria Cymbalisty, union nominee. Leah Schatz for the employer, Gary L. Bainbridge for the union. May 2, 2016. < Arbitration pg. 1

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