Canadian Labour Reporter

November 14, 2016

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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8 Canadian HR Reporter, a Thomson Reuters business 2016 November 14, 2016 ARBITRATION AWARDS on-site, Toppozini signed off on logbooks after completing various inspections of the vital hoist oper- ation. The logbooks indicated the hoist's operation complied with labour ministry guidelines. In mid-August, he was reas- signed to work in the mill and did not return to the hoist before he was eventually laid off Sept. 30. On March 30, the company hired Victor Bartlett to help with hoist operations. Maintenance superintendent Trevor Davis knew Bartlett from working with him previously and brought him onboard because he had eight years' experience directly working with hoists. Toppozini, on the other hand, had no formal training or experi- ence before working at Lac des Iles. When he was laid off, Top- pozini and the union, United Steel Workers, argued the company breached the collective agree- ment by not allowing him to be given precedence over the less- senior union member. But the company knew his skills were only rudimentary. "(Top- pozini) was on loan from the mill and had no mining background, we put him with people he would be safe with and who could work with him," said Davis. Toppozini did have certifica- tion as a millwright journeyman, but Bartlett received his qualifica- tions by way of challenge, which meant he simply passed an ex- amination to achieve the certifi- cation. The union argued Toppozini received his certification via a post-secondary institution and an apprenticeship, which was one of the requirements for the job in question. Bartlett did not appren- tice. The job posting used the phrase "comfortable working on hoists" which the union argued also proved Toppozini satisfied the job requirements. And by be- ing allowed to sign the ministry logbooks, it said management felt comfortable in giving him this re- sponsibility. The company countered, say- ing Toppozini did not complete any training while on the job, which were known as Hepburn and Sherrington short-courses and were mandated by the minis- try after a 2014 site visit. Lac des Iles said the hoist was a crucial part of the company's min- ing operations and it could not trust an untrained or unqualified individual to use it. Toppozini al- ways worked with other employ- ees while on duty. "The evidence does not estab- lish the grievor's skill and ability to work on hoists meets the 're- quirements and the efficiency of the operations.' I find the company reasonably concluded he did not possess, at the time of layoff, 'the present ability to perform avail- able work; on the hoists, pursuant to art. 12.3(a)," said arbitrator Wil- liam Marcotte . Davis supervised both men and was correctly able to assess the skills for the job requirements, said Marcotte. "The company's assessment of the requirements and efficiency of its operations is reasonable. I find the company's decision-making process in determining whether the grievor or Mr. Bartlett was to be laid off was not improper. I find the company did not improperly assess the grievor's skill and ability to perform hoist work," said Mar- cotte. The grievance was dismissed by Marcotte. Reference: Lac des Iles mines and United Steel Workers, Local 9422. William Marcotte — arbitrator. William Shanks for the employer. Herbert Daniher for the employee. Oct. 17, 2016. York University professor in Toronto grieves decision-making process after tenure denied A professor at York University in Toronto was denied tenure re- peatedly but he eventually decid- ed to take action. Ken Ogata worked as a tenure stream lecturer in the school of administrative studies since July 2005 and was first considered for tenure in 2008. But because he had not completed a PhD at that time, his application was denied. Various appeals happened and he was again rejected, but in 2012, the adjudicating committee rec- ommended Ogata tenure without promotion. A senate review com- mittee denied the request and re- ferred the matter back to the com- mittee. More appeals followed and in 2014, the senate committee re- versed its decision and recom- mended the request. University president Mamdouh Shoukri's role was to review all submissions (usually around 40 or 50 each year) and make a final de- termination on who receives ten- ure. This power was written into the collective agreement. When Shoukri handed down his decision to deny tenure, Ogata and the union, the York Univer- sity Faculty Association, decided to grieve the process and said the decision to "pre-emptively refer the file for a comprehensive re- view and recommendation before he has any idea whether he in fact required or wants advice, or what he might need or want advice about, falls far outside the bounds of seeking advice, and transforms the exercise into a new level of independent, comprehensive re- view not provided for in the col- lective agreement." Shoukri testified when a more "complicated" file regarding ten- ure crosses his desk, he developed a protocol for helping sort out all the details, which included brief- ing notes prepared and reviewed by his secretary Terry Carter and university provost Patrick Mona- han. During his testimony, Shoukri insisted the notes did not provide recommendations on a profes- sor's tenure, but merely "time- lines" on the merits of a tenure decision. Carter sent emails to the provost's assistant during this process, which requested further help on the file from Monahan. A June 3, 2014, rejection let- ter was initially drafted by Carter before it was sent to the president and also before he made his final decision on June 20. The association said involving two non-academic professionals in this process violated the col- lective agreement. As well, it said there were more inaccuracies in the final decision that Ogata did not have a chance to rebut. But the decision to deny tenure was mine alone, as per the agree- ment, said Shoukri. "The fact that I signed it: I believed in every word in it." In upholding the grievance, arbitrator James Hayes found the decision by Carter to refer the file to the provost violated the collec- tive agreement. "In my view, section G (of the agreement's tenure and promo- tions policy) does not open the door for a president, as a matter of efficient routine, to permit Ms. Carter to authorize participa- tion of the provost in any case she deems 'complicated.' Section G speaks to the president exercis- ing discretion in individual cases," said Hayes. The president alone was sup- posed to make a decision and should not be prejudiced by any other information, according to the arbitrator, and if manage- ment found they required more help in the future, "the university must first negotiate such a role for the provost for inclusion in an amended tenure and promotions procedures," said Hayes. "The decision of the president set out in correspondence dated June 20, 2014, must be quashed." Reference: York University and York University Faculty Association. James Hayes — arbitrator. John Brooks, Lauren Cowl for the employer. Emma Phillips for the employee. Oct. 28, 2016. < Ontario pg. 1

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