Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2016 ARBITRATION AWARDS June 27, 2016 lot. Blancato removed a shopping bag containing two marijuana plants from his car and gave it to Rodwell. They then re-entered the plant and Rodwell went to an area of the plant not in use, concealing the bag, before returning to his work station. A supervisor observed his ac- tions and discovered the mari- juana plants in the bag. Rodwell was immediately suspended from work pending investigation. On the Monday, THK reviewed the security tapes and interviewed both men. As a result, they were discharged from employment two days later. THK's code of conduct said acts considered serious enough to, in all probability, result in im- mediate dismissal included: "Em- ployees reporting 'unfit' for work, possession and/or consumption of alcoholic beverages or illegal substances (i.e. drugs) on compa- ny property or during scheduled work hours and break periods." The collective agreement with the union, Thompson Products Employees Association, also stated: "Management has the full right to make reasonable rules as circumstances indicate and to discharge employees for proper cause… Rather than resort to a formal list of 'Thou shall nots,' the company will apply the common sense test of good citizenship to the commission of any act ad- vanced as a reason for discharge or other disciplinary penalty." The possession or use of any mind-altering substance (except prescription drugs) was also a safety hazard in the facility, said the employer. Discharge was also necessary because there had been a history of prior instances, so deterrence was a major factor to be considered. But the union said a lesser pen- alty made sense for a number of reasons, including: the long ser- vice of the two men (more than 20 years of seniority each); no prior discipline on record; the federal government's intention to legalize marijuana; the plants were not in a "consumable" state; this was a sim- ple transfer without consequence to the employer and there was no intention to consume the marijua- na at the workplace; both workers acknowledged wrongdoing; both men were in their 50s and could have trouble finding similar work; a discharge would have a dras- tic impact on their pensions and health benefits; and Blancato was later approved to take marijuana for medical purposes in May. Arbitrator John McNamee did not agree with the argument around marijuana's legality, nor with the plants not being consum- able, saying "I am in some doubt as to the distinction between con- sumable and non-consumable marijuana plants and I cannot blame any employer for prohibit- ing all forms of illegal or unwel- come drugs." He also did not agree that there were no consequences. "An employee who violates a health and safety rule takes the risk that something unanticipated may occur and cannot later be excused on the basis that he did not expect a result which was foreseeable." But McNamee also said many of the extenuating circumstances put forward by the union had legitimacy. In the end, he de- cided to reinstate the men, with- out loss of seniority but without compensation, as of June 13. The period from April 20 to June 12 was considered a disciplinary suspension. But if either man was found in violation of THK's rule around possession of a mind-altering sub- stance in the 24 months following the date of reinstatement, "he may be automatically terminated and the right to grieve shall be limited to the right to contest whether or not the rule has been violated," said McNamee. Reference: THK Rhythm Automotive Canada and Thompson Products Employees' Association. John McNamee — arbi- trator. For the employer, Paul Young and Anne-Marie Heenan. For the union, Sean Fitzpatrick. June 8, 2016. Yellowknife firefighter fights for more overtime pay A grievance around overtime pay by the Northwest Territories gov- ernment was dismissed recently after the arbitrator determined workers in any industry occasion- ally have to give up personal time as part of their "normal duties." The Union of Northern Work- ers filed a policy grievance in Sep- tember claiming article 23 of the collective agreement required an employee working authorized overtime to be paid a minimum of one hour's pay. Following one hour of overtime service, that overtime was to be paid for each 15-minute segment of work performed by the employee, it said. But the employer said the prop- er interpretation and longstanding practice was to pay for one hour at the overtime rate after the first 15 minutes of overtime work was completed. And after the first hour of overtime, an employee was paid for each 15-minute block. The collective agreement stated "an employee who is required to work overtime shall be paid over- time compensation for each com- pleted fifteen (15) minutes of over- time worked by him/her, subject to a minimum payment of one (1) hour at the overtime rate." In addition, "an employee who is required to work overtime shall be entitled to a minimum of one hour's pay at the appropriate rate," said the employer. The grievance concerned Gar- ret Churchill, a shift supervisor firefighter at the Yellowknife Air- port. He and others in his crew were required to be at the airport hall for all flights arriving and de- parting. If a flight arrived late, they had to remain on the premises. So if a shift was scheduled to end at 10:30 p.m. and a flight touched down at 10:34 p.m., the firefighter crew had to remain until 10:34 p.m. Churchill said overtime pay had been approved for him in the past if he was required to work after his scheduled hours of work, even if it was for less than 15 minutes. That practice changed after an email from the fire chief on July 13, 2015, stated: "Overtime does not begin until 15 minutes after the end of your shift." Churchill said it was ludicrous he should have to work up to 14 minutes of overtime without any compensation. But the director of labour relations for the govern- ment said overtime was based on a "completed" period of time, mean- ing an employee "needs to work that extra 15 minutes to get the one-hour benefit." She cited exam- ples in the HR manual, dating back to August 2006: "Employee works 25 minutes of overtime. He/she gets paid for one hour… Employee works 10 minutes of overtime. He/ she does not get paid for overtime." And if a worker was asked to work less than 15 minutes of over- time, he could be allowed to take a longer lunch hour another day. The union cited an article in the agreement defining overtime as "work performed by an employee in excess of or outside his/her reg- ularly scheduled hours of work." And it said the absence of any payment for the first 15 minutes of overtime violated the Public Ser- vice Act which stated a worker was "entitled to be paid, for services rendered, the remuneration appli- cable to the position." But the meaning of "completed" 15 minutes of overtime" was clear and unambigious, said arbitrator John Moreau . "Employees in any industry must occasionally give up per- sonal time — in this case, not more than 15 minutes — as part of their 'normal duties'… in exchange, there are occasions where the em- ployer will show flexibility… by al- lowing an employee an extra few minutes at lunch for personal rea- son," said Moreau, who dismissed the grievance. Reference: The Union of Northern Workers and the Minister of Human Resources, Government of Northwest Territories. John Moreau — arbitrator. Christopher Buchanan for the employer, Rebecca Thompson for the union. April 7, 2016. < Arbitration pg. 1

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