Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2017 ARBITRATION AWARDS February 6, 2017 Each time she was off, (Mr.) Balahadia, a part-time worker covered Durikova's full-time hours. On June 10, 2015, Durikova phoned Susan Quan, who worked in the agency's human resources department, to request an upaid leave of absence starting after the extended child care leave ended, which was Jan. 23, 2016. She said she wanted to spend more time with her young daugh- ter and teach her Slovakian, her native language. Two days later, Quan said the leave was approved pending con- firmation from (Mr.) Crozier, the store manager and regional man- ager (Mr.) Castaneto. The leave was eventually ap- proved but Durikova decided to change the leave from child care to general absence. On Nov. 19, Castaneto re- sponded to an email about the leave and said only "I approve." However, on Nov. 25, Castan- eto told Durikova the leave might not be approved as it was being questioned inside the human re- sources department. Finally, on Dec. 15, a letter was sent formally denying the request for leave. "Based on the information you have provided, your request is not deemed by the above-mentioned article to be an emergency or unusual circum- stance. Therefore, the employer cannot approve your request for general leave of absence." Durikova was ordered to return to work Jan. 24, 2016, and she did. But on June 14, Durikova again requested one year off without pay "to take care of family mat- ters." On July 14, new regional man- ager, (Mr.) Hatch, denied the leave and cited "operational require- ments of the store" for not allow- ing it to happen, even though no employees were canvassed as being able to fill in for Durikova while she was away. On July 28, Durikova's union, the British Columbia Govern- ment and Service Employees' Union, grieved the denial and said it was "arbitrary and unreason- able; based on a misinterpretation of the collective agreement; and, clearly approved by management." Because the regional manager approved the leave, argued the union, it should be binding upon the employer. The LDB countered and said the manager did not have the au- thority to grant a 12-month leave and he made an error approving the absence. It also said Durikova already had sufficient time off to care for her child. Arbitrator Corinn Bell allowed the grievance and said denying the request because she had already taken time off to care for her child was invalid. "The very fact that an employee is on a maternity leave or extended child care leave does not disquali- fy that employee from requesting the leave pursuant to the collec- tive agreement," said Bell. The employer also didn't prop- erly advise Durikova on how to structure a leave request that might be approved. "It is clear that Durikova was not advised of the LDB's approval process for a leave of this nature until after it had been approved by the regional manager, despite her months of efforts to gain an ap- preciation of how a general leave could be approved," said Bell. Bell ordered the LDB to ap- prove (within 20 days) a new re- quest for leave as soon as it was filled out by Durikova. Reference: Liquor Distribution Branch and British Columbia Government and Service Employees' Union. Corinn Bell — arbitrator. Peter Gall for the employer. Ken Mooney for the employee. Dec. 22, 2016. Edmonton worker denied job after description changed A SPECIALTY gas operator who had worked at Air Liquide in Ed- monton since 2003 didn't win a promotion to a CO2 operator po- sition because he didn't have the correct technical qualifications. Paul Semeniuk lost out to Scott Geddie, who held a fourth-class power engineering certificate and was awarded the position posted on June 9, 2015. The ad originally called for "post-secondary education in pe- troleum science or a related field" but the requirement was upgrad- ed and the union, Unifor Local 777, was not advised. Two of the three current in- cumbents on the job did not have the fourth-class designation. Geddie was given the position after an interview process, when one of the CO2 operators retired. The wording of the CO2 opera- tor was changed so that another contender, Lance Campbell, could not be slotted into the position, even though he had experience and was the most senior of the four applicants. A back-up operator, Campbell was not considered for the open position because "we were not happy with Campbell's perfor- mance so we were not comfort- able giving the position to him because he was lacking technical qualifications," said Prakash Kad- am, plant supervisor. Because Geddie was the only one who had the fourth-class cer- tificate, he was the only one inter- viewed on June 22 and the next day he was awarded the position. Semeniuk wasn't considered because "he did not have the nec- essary technical qualifications or experience operating in the petro- chemical or process engineering fields. We did not have him take the test because he did not meet the technical qualifications," said Kadam. But Semeniuk applied for the job because he wasn't aware of the changed requirements. He was part of the bargaining committee when the collective agreement was negotiated and was familiar with the previous qualifications written in the position descrip- tion. In grieving the decision, the union called the new wording a "red herring" that should have had no bearing on the posting. It also removed related experience from the posting, which Semeniuk had. "The company must show a substantial, demonstrable differ- ence in qualifications between Geddie and the grievor, which it has not. What the company intro- duced was not a qualification, but was a requirement used to disen- title the bargaining unit members from further consideration. An employer is not permitted to cre- ate an artificial requirement to deprive applicants of their rights," said the union. Arbitrator Alan Beattie said the employer's action in changing the wording was "clearly unreason- able and unfair" and should not have been undertaken. "There was a total disconnect between the job descriptions and job posting on the one hand, and the 'baseline requirement' which the company decided, belatedly and unilaterally, that it required, on the other hand. It would cer- tainly have been much better if the company had consulted with, or at least advised, the union of the change in the job description which might have led to some dis- cussion and resolution and avoid- ed the protracted proceedings which have followed," said Beattie. Beattie ordered the CO2 opera- tor job to be reopened for consid- eration. "In compliance with the col- lective agreement, and having in mind the factors enunciated in this award, assess the rela- tive qualifications of Geddie, the grievor (and Lamouche, who was another candidate), providing the same pre-test materials to him as were provided to Geddie (with a reasonable period of time permit- ted before the test), administering the same test and engaging in the interview," said Beattie. The company must also not "seize upon minor differences to defeat the application of senior- ity," said Beattie, and demonstrate by a "substantial and demonstra- ble margin" that Geddie was the best candidate. Reference: Air Liquide Canada and Unifor Local 777. Alan Beattie — arbitrator. Cristina Wendel for the employer. David Williams for the employee. Jan. 18, 2017. < Vancouver pg. 1

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