Canadian Labour Reporter - sample

8 Canadian HR Reporter, a Thomson Reuters business 2016 October 24, 2016 ARBITRATION AWARDS began a seven-day vacation. He posted a notice via the course web site and promised to respond to students' questions upon his re- turn. Because Athabasca is a mostly distance-learning university, its operations are different from most: Students sign up for courses all the time and professors are re- quired to respond to student que- ries on a regular basis throughout the year. Unlike most schools, there is no summer break when not a lot of study takes place. If a professor is to be away for 10 days or more, a tutor is assigned to handle teaching duties in order to maintain the school's strict stu- dent standards. But during Barnetson's 2015 va- cation, he felt compelled to respond to student questions and did so, estimating about three hours of his vacation time was spent answering email queries. Barnetson believed if he did nothing and let his work pile up, it would be too overwhelm- ing to complete upon his return to regular duties. The union argued that the 10- day rule that would automatically invoke a substitute tutor was ar- bitrary and put undue hardship on professors who wished to take smaller chunks of vacation time. It said when the work week re- sumed, it was unreasonable to ex- pect the piled-up work to be com- pleted during the regular 35-hour week, which was already full with normal duties. The university agreed the fig- ure of 10 could be considered arbi- trary but said it was arrived at in a fair collective bargaining process and thus was agreed upon by all. Dean Veronica Thompson tes- tified Barnetson's job has a regu- lar "ebb and flow" and the missed work could easily have been acco- modated once he was back on the job. Professors were also given ex- tra time in the case of a vacation to complete work that was due. When a new substitute tutor was put onto active duty for a pro- fessor, three separate computer systems had to be employed by the tutor, making the job challenging for the replacement. Barnetson said he felt invoking all this extra upheaval put his stu- dents in an awkward situation and could unjustly cause them hard- ship. "Some might argue a 2-3-day pe- riod is the best pick, others 20 days, but some point has to be picked. Student expectation of continuity, marking, and a contact person is a legitimate consideration for not making too quick a substitution," said arbitrator Andrew Sims. The university argued the vaca- tion-substitution rule constituted a management right to organize the workplace and was perfectly reasonable within the collective agreement. "During his vacation, Prof. Bar- netson chose to answer emails, not wishing to hold up his stu- dent's progress. Dean Thomp- son's evidence is that he was nei- ther asked nor required to do so. I cannot in these circumstances find that choice alone creates a breach of his vacation entitle- ment," said Sims. "The Faculty Association ar- gues that he is unable to take full advantage of his full allotment of vacation days when his work (or more precisely some of his work) is deferred." The grievance was dismissed. "I cannot find the current policy either arbitrary or unreasonable," said Sims. Reference: Athabasca University and Athabasca University Faculty Association. Andrew Sims — arbitrator. Chantel Kassongo for the employer. Natalia Makuch, Ritu Khullar for the employee. Sept. 16, 2016. Worker caught red-handed accepting marijuana Rebecca Haines was fired after being seen accepting a pill con- tainer filled with marijuana from a co-worker, while on duty at the Hartland, N.B., Old Dutch potato chip factory. Linda Sarchfield, lead hand, was asked to search out workers who were willing to work overtime on Feb. 1, 2016. She went to the lunch- room to discuss it with whomever was on break at the time. She noticed a worker, identified as "X," sitting with Haines, and X handed over a white pill bottle, which Haines quickly pocketed. Because she suspected the container may have contained marijuana or some other illicit substance, Sarchfield informed production supervisor Paul Grant of what she saw. Sarchfield and Grant returned to the lunchroom and found it empty. Haines' coat remained, so they searched it trying to find the white container. Sarchfield found a Motrin pill bottl, containing a bag of mari- juana. It was confiscated and taken to Grant's office. On Feb. 9, human resources manager Sheila Broad called the Woodstock, N.B., RCMP detach- ment and reported the finding. A constable arrived and he appro- priated the drugs, but no employ- ee name was provided because Broad believed it was too small an amount to report. The police officer later testified the drug's chain of custody was compromised so it would be diffi- cult to charge someone on hearsay and he was also concerned about the legality of how the drugs were discovered. Broad then began an investiga- tion by first speaking with X, who maintained the white object was a phone number written on a piece of paper. When Haines was questioned, she denied the drugs in the pill bottle was hers but later said she had a medical marijuana authori- zation. A document was produced as evidence but, according to the ar- bitrator, it was out of date. On Feb. 10, Haines was pre- sented with a letter of termination that said, "You were found to be in possession of illegal substance in the lunchroom. Please be ad- vised your employment has been terminated as per the collective agreement." The employer argued Haines' coat was in a public area and be- cause it was suspected of contain- ing illegal drugs, management had a reasonable right to search the coat. In rejecting the argument, arbitrator Michel Doucet said there was no compelling issue that would necessitate a search of Haines personal property. "I cannot conclude that this fail- ure and the fact that she left her coat on a chair in the lunchroom constitute consent to search with- out prior notice. I believe that all employees retain a reasonable expectation of privacy and that in the absence of prior notice or of an established past practice or the existence of a provision in the col- lective agreement, the employer's actions in doing so can be chal- lenged." If the employer believed there were drugs present, it should have advised Haines before a search could happen, said Doucet. And if she refused to allow a search, the RCMP should have been contacted at that point. "The actions taken by the em- ployer on the evening of Feb. 1, 2016, were in breach of the griev- or's privacy rights. In the future, the employer should be more careful in the manner in which they conduct such searches." But some of the blame for the incident was shifted to Haines, he said. "Her evidence at the hearing was not convincing and in many regards was not forthright and lacked credibility. For example, she started off by alleging that the bottle of Motrin had been planted in her coat pocket, but latter on changed her argument and alleged instead that she was medically au- thorized to possess marijuana." The employer was ordered to reinstate Haines because it unwar- rantedly conducted a search that breached her right to privacy. But her behaviour during the in- vestigation was cited when Doucet refused to order a recompense of any lost pay, benefits or seniority. Reference: Old Dutch Foods and Unifor Local 2001. Michel Doucet — arbitrator. James LeMesurier for the employer. Mike MacMullin for the employee. June 27, 2016. < Professor pg. 1

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