Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2017 ARBITRATION AWARDS January 30, 2017 turned to ECI in 2014, but the union pushed ahead with the May 21 grievance to fully address the "pull-back" provisions in the col- lective agreement. "The Secondary Teachers' Bargaining Unit (STBU) further maintains that the principal of Etobicoke CI and the Toronto Dis- trict School Board have acted in an excessive and arbitrary manner, and therefore exceeded their au- thority under part iii of the recog- nition clause," said the grievance. During the process to con- sider Norman for the vacancy, the school proposed changes be made to various teacher's sched- ules, so she could fill two guidance sections that the retiring teacher held. Michelle Kaske, the school's special education head, could have taken the retired teacher's physical education slots, while another teacher would take over one of Kaske's special education courses. But the proposal was rejected by Rath, who said it would place an unfair burden on Kaske and her special education students if she was away from the students for an extended period of time. Rath said the special education department consisted of an "overwhelming amount of work" as Kaske was re- sponsible for 250 students. Being away from the students for an estimated 75 minutes per day (plus preparation and meeting time) when teaching the physi- cal education course would take Kaske away from the neediest children at ECI, said Rath. Another proposal would have seen a male teacher being as- signed to the physical education course, but because that section was a girls' class, Toronto school board policy set in 1998 meant the courses must be taught by a teach- er of the same gender. The union argued Rath did not give full considerations to the schedule-changing options, which would have awarded the position to Norman, citing the wording of the collective agree- ment: "(Staffing changes) will be guided by the principle of keeping teachers in their home schools or if they become surplus, finding ways to return them to their home schools subject to seniority and qualifications." It argued keeping Kaske in her current position and not moving around the schedule was an arbi- trary decision made by Rath and not a requirement of the school, and it would not force an undue hardship upon the special educa- tion program. Arbitrator Laura Trachuk de- nied the grievance. "The require- ment to 'consider' in the context of negotiated pull-back provi- sions guided by the principle of trying to keep teachers in schools, means that the principal must as- sess whether a pull-back can be accomplished through changes in timetabling taking into account the impact on other teachers' timetables and the needs of the program and/or school. Rath did consider changing timetables to return the grievor to the school but decided, after considering the impact on the special education program, not to do so. That was a proper exercise of the discretion that was designated to her." Rath correctly weighed the needs of the special education de- partment when making the staff- ing decision, said the arbitrator. "There was no suggestion that her decision was made in bad faith or was discriminatory. I find, for the reasons set out previously, that it was not based on a policy but on her assessment that assign- ing Kaske to physical education would not serve the needs of the special education program," said Trachuk. "Rath did not base her decision on a policy but on her as- sessment that the interests of the special education students would not be served by taking the head of the special education department out of the program for that much time each week." Reference: Toronto District School Board and Ontario Secondary School Teachers' Federation, District 12. Laura Trachuk — arbitrator. Michael Hines for the employer. Karen Ensslen for the employee. Jan. 9, 2017. Air Canada worker makes 101 calls with calling cards A worker in Air Canada's revenue department admitted to using company-issued calling cards to phone Jamaica 101 times over a two-year period. Air Canada purchased the call- ing cards for customers to use during times of travel disrup- tion, so they could contact fam- ily members or friends to advise them of changed plans. Each card held 15 minutes of calling time and customer sales and service agents were directed to hand them out to customers when warranted. Claudine Solomon had a 20- year career with the company and a perfect disciplinary record. However, on Oct. 13, 2016, she ad- mitted to using the cards to make multiple calls to her dying father, who subsequently died. Solomon was suspended, pend- ing discharge, on Oct. 18. The union, Unifor Local 2002, grieved the decision arguing it was far too harsh considering her long service with the company and her immediate apology when first questioned about it. During the arbitration hearing, Solomon expressed regret about her actions and again apologized to Air Canada. She said the inci- dent caused her great embarrass- ment within her family, who had been unaware of it. Air Canada countered and said the unauthorized use of the cards over a two-year period consti- tuted theft on a repeated basis and violated the position of trust the employee previously held with the company. It also created a breach of the company's code of conduct. Arbitrator James Hayes placed some of the blame for the incident in Air Canada's lap. "It appears that the company's casual dis- tribution of the calling cards led Solomon to rationalize that use of such cards was somehow accept- able given their minimal value." The grievance was upheld and Solomon was ordered reinstated without loss of seniority but with a suspension without pay from Oct. 18, 2016, to Jan. 13, 2017. "I am satisfied that the remorse expressed at the hearing was genuine. Solomon's admission of wrongdoing came, immediately, at the time of an investigation meeting called without notice to her of its purpose. She apologized then, and at the hearing, to the company," said Hayes. But the decision was not made lightly, said Hayes. "I am persuad- ed that Solomon should be given the opportunity to redeem herself with Air Canada. I should empha- size that this was not an easy call to make particularly given the du- ration of the calling card misuse. It will be up to Solomon to demon- strate that she is worthy of the sec- ond chance that is provided here." "Loss of income for a lengthy period, in the typical case where alternative employment has not been secured, imparts a powerful lesson by itself," said Hayes. Reference: Air Canada and Unifor, Local 2002. James Hayes — arbitrator. James Waddell, Joanna MacMillan, Karn Parmarfor the employer. Frances Galambosy, Janet Williams, Lucy Alessio for the employee. Dec. 19, 2016. < Pull-back pg. 1 "That was a proper exercise of the discretion that was designated to her."

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