Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2016 ARBITRATION AWARDS June 20, 2016 so bad, she was forced to leave the workplace for an extended period of time. As a result, the union requested AB be compensated for all sick leave, vacation pay and income lost during her time away from work, as well as damages. AB worked as a process tech- nician for the employer, work- ing alongside colleagues "MDO," "SGI" and "JP." According to AB, her co-workers were reluctant to train her as she had obtained the position through grievance, and they felt she didn't deserve the job. AB said her suggestions and questions were ignored, due to what she felt were MDO and SGI's "chauvinist" attitudes. After several months, AB told management that if there was a possibility of a shift change, she would like to take it. Almost a year after taking over the technician position, AB's physician referred her for psychological counseling due to stress from her job and per- sonal relationships. In a confrontation between AB and SGI, SGI said he did not feel comfortable training AB because he considered her a safety haz- ard. AB believed SGI saw her as a hazard because she was a woman, while SGI testified he was refer- ring to an injury she had suffered that required accommodation. AB reported the confrontation to management, and meetings were called with the employer, union, AB, SGI and MDO. According to MDO, AB was very aggressive and constantly criticizing him. She was constantly making notes and reporting his ac- tions to management. He felt she was trying to damage his career and therefore attempted to avoid her in the workplace. SGI said he felt the tension be- tween the employees was simply the result of a personality clash. As a result, small things such as room temperature led to big arguments and hard feelings. Despite the meetings with the union, confron- tations continued to occur. On July 6, 2012, AB had a note from her physician certifying she was unable to attend work for medical reasons and she would return to workon Aug. 6. On July 22, AB signed a formal complaint about the workplace environment and requested a formal investiga- tion. According to the grievor, the in- vestigation only caused her more stress and worsened her mental and emotional health. The investi- gation did find that SGI and MDO acted inappropriately and against the employer's harassment policy. As a result, plans were made to transfer AB to another shift. Arbitrator Augustus Richard- son, however, was not convinced the actions of SGI and MDO con- stituted harassment or bullying. "The disputes… are more rep- resentative of children's squabbles in a sandbox than they are of adults working co-operatively in a team," he said. "Some of it might amount to disrespectful behaviour. But more of it was simply an attempt by strong-willed individuals who were set in their ways to continue to have what they were accus- tomed to having, rather than to compromise." While MDO and SGI failed to welcome AB onto the workplace and dragged their feet with respect to training her, AB also played a part in the dysfunctional work- place. As a result, Richardson was unable to find that the employer violated any provision of the col- lective agreement with regards to an alleged "poisoned workplace" and the grievance was dismissed. Reference: Halifax Regional Water Commission and the Canadian Union of Public Employees (CUPE) Local 227. Augus- tus M. Richardson — arbitrator. John. C. MacPherson for the employer, Karen Mackenzie for the union. Feb. 21, 2016. Union disputes calculation of retirement gratuities A GRIEVANCE concerning re- tirement gratuities for employees who work less than 10 months per year was dismissed recently. The Lincoln County Catholic School Board and Welland Coun- ty Catholic School Board merged to become the employer. The col- lective agreement had provisions for the payment of a retirement gratuity to former employees of both boards. The formula was: "50 per cent of their accumulated sick leave to a maximum of six (6) months earn- ings, based on the actual earnings at January 1, 1999." In addition, the agreement stated: "It is under- stood that the Ontario Municipal Act limits a maximum payment of six (6) months' salary." The act also referred to the maximum amount of a sick leave gratuity in the following terms: "A maximum of one-half year's earn- ings at the rate received by him or her immediately before termina- tion of employment." The employer used a formula that took the yearly earnings of an employee (for example $30,000) and divided them in half to obtain six months' earnings (in this ex- ample, $15,000). But the Canadian Union of Pub- lic Employees, Local 1317, said the proper calculation in the above ex- ample would be to divide the yearly salary by 10 ($3,000) for the month- ly salary. That should then be multiplied by six ($18,000) for the amount of the retirement gratuity. But the employer argued its cal- culation was logical as there are 12 months in a year and the collective agreement entitled employees to a maximum gratuity of six months' earnings. Therefore, workers were entitled to a maximum retirement gratuity of 50 per cent (6/12ths). The union's methodology would result in the 10-month employee being eligible for a maximum gratuity of 60 per cent of their yearly salary whereas a 12-month employee would only be eligible for a maximum gratuity of 50 per cent, said the employer. Arbitrator Larry Steinberg said the language of the collective agreement was clear that retire- ment gratuities were to be based on six months' earnings based on the actual yearly earnings at Jan. 1, 1999. And the employer adopted an approach that was simple to ad- minister, in dividing yearly earn- ings in half. This was also consis- tent with the language used in the act since it reflected a "half year's earnings," he said. However, the parties did not use the language from the act. They used the concept of six months' earnings which seemed to imply they contemplated converting the yearly earnings amount to a monthly amount, said Steinberg. So, the union's approach was con- sistent with the language the par- ties used in the agreement. The question boiled down to what the parties intended by the reference to the act, said Stein- berg. And the language in the act is unambiguous. The legislature intended that sick leave gratuities should be capped at one-half of what an employee would earn in a year. For employees who work 12 months, that would obviously be six months of earnings. For em- ployees who work 10 months, that would be five months of earnings. "Did the parties intend to depart from this paradigm when they used the expression '6 months' earnings' in Article 20.03(a) and (e)? Did the parties intend that employees who work 10 months were to receive a pro- portionally greater amount of re- tirement gratuity than 12-month employees?" asked Steinberg. "I can think of no reason why the answer to either question would be in the affirmative. There was no policy reason advanced at the hearing that would explain why one group of employees would or should be entitled to a proportionally greater amount than another group of employees." On balance, the agreement was intended to reflect the maximum entitlement in the act for the re- tirement gratuity, he said, finding the employer correctly deter- mined the gratuity. The grievance was dismissed. Reference: The Niagara Catholic District School Board and the Canadian Union of Public Employees, Local 1317. Larry Steinberg — arbitrator. Daniel Leone for the employer, Lisa Triano for the union. May 27, 2016. < Arbitration pg. 1

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