Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2017 ARBITRATION AWARDS March 6, 2017 was spread out over a 16-month period. The 2014-15 collective agree- ment said the "union will be noti- fied of resultant premium changes from the annual review process and provided an opportunity to bring forth questions and con- cerns concerning the LTD plan." Typically, the employer and Desjardins held annual talks about the plan's renewal, whose premiums had gone up by a mini- mum of eight per cent annually to a maximum of 15 per cent in each of the preceding four years before the 2015 talks. But on March 27, the region was told about the 60 per cent boost — which had to be agreed upon by May 31 — for a July 1 re- newal date. Negotiations commenced (af- ter being hampered by an account executive leaving Desjardins in May) and on June 4, Desjardins promised to bring down the cost increase to 50 per cent, then 40 per cent. Talks continued, but on June 30, the company announced to Niagara Region a 40 per cent in- crease was its final offer. The implementation was moved ahead to Sept. 1, and the region agreed to the increase for July and August, while it contin- ued to look for a new insurance carrier. On July 6, the region advised the Ontario Nurses' Association (ONA) about the new deal. Later in the month, on July 31, the re- gion told the union that it would be working on securing a new in- surance provider and would meet with the union on Aug. 12, as well as other affected bargaining units from Canadian Union of Public Employees (CUPE), to discuss the new arrangement. Eventually, the region decided to move its LTD business to Cigna Insurance, but the July and August premiums, with the 40 per cent in- crease, would have to be paid out to Desjardins. ONA grieved the process on Sept. 21, arguing Niagara Region breached its fiduciary duty to em- ployees by taking too long to ne- gotiate a new deal. It wrote Niagara Region "should be held accountable and responsible for any payment due Desjardins" and called its actions "offensive, cavalier and irrespon- sible." ONA said the region should have acted before the May 31 re- newal date, but only met with Desjardins on May 21, which was unreasonable. Arbitrator Lorne Slotnick dis- missed the grievance and said the region acted responsibly in the best interest of the workers and did not breach its fiduciary duty. "The employer did not know until May 20, its first substantial contact with Desjardins, that the insurer appeared to be serious about a very large increase. "After that meeting, it took only two weeks for the region to ask for a quotation from another carrier, while still negotiating with Des- jardins in the hope that Desjardins would revise its position to make it acceptable," said Slotnick. The fact that the insurance company switched account exec- utives was regrettable and caused delays that were not the fault of the employer, said Slotnick. "It is unfortunate that the con- sequence was that employees paid an extra 40 per cent for two months. "However, that outcome was not the result of any breach by the employer of the collective agree- ment or its fiduciary duty. The employer acted reasonably, and in keeping with its duty to employ- ees, " said Slotnick. Reference: Regional Municipality of Niagara Homes for the Aged and Ontario Nurses' Association. Lorne Slotnick — ar- bitrator. Daryn Jeffries for the employer. Rob Dobrucki for the employee. Feb. 15, 2017. B.C. worker's bereavement request denied after sister dies AN EMPLOYER granted one day of bereavement time off after a worker requested three days' leave to mourn his sister. Osmane Halane worked at En- terprise Rent-A-Car Canada in B.C. and after he found out late on April 17, 2016, that his sister died in Somalia on April 16, he re- quested three days off. The collec- tive agreement allowed for work- ers to take three days to "make arrangement for and attend the funeral." However, the station manager denied the time off because Ha- lane would not be travelling to So- malia for the funeral. Instead, he wanted to remain home in Cana- da and invite family and friends to his house for a three-day period of mourning. An observance was held at Ha- lane's place of worship on April 18, and about 150 people attended that place as well as his home on April 19 and 20. When the em- ployer asked why he requested so much time off, despite not actu- ally attending the burial, Halane emailed a response: "In my re- ligion/culture, we have three to seven days in which relatives and close members of the community read the Qur'an, have prayers and prepare for the funeral." The union, Professional Em- ployees' Union, Local 378, grieved the denial, when Halane was told to substitute two banked sick days in lieu of the bereavement time. The employer responded on June 9, 2016, by email: "We did un- derstand that time may be needed to grieve or hold a memorial ser- vice locally, therefore, per article 29.04, which does not say the em- ployer must grant three days, we paid Halane for 1 day." The company's human re- sources generalist testified that the company had restricted em- ployees to one day of bereavement leave in the past, when employees would not be attending funerals. The company also said it wasn't made aware until late in the pro- cess that three days would be re- quired for a such religious obser- vances regarding the death. But the union said the agree- ment didn't say the employer had to attend the place where the body was to be buried, only that a worker was entitled to time off to attend any kind of observance in relation to the death. The union asked for $1,500 in extra damages for Halane due to undue stress and the cost of ob- taining a death certificate. Arbitrator Ken Saunders up- held the grievance and ordered the company to restore the two days into Halane's banked time ac- count. "I declare that the employer de- nied Halane's claim in violation of article 29.04 of the collective agreement," said Saunders Because Halane attended ob- servances to mark his sister's death, it was enough to trigger a successful bereavement claim, said Saunders. "First, a funeral may consist of one or more obser- vances — it is not necessarily con- fined to one day of observances. Second, the presence of the body of the deceased is not a necessary element of a funeral. Third, the qualification that observances usually precede burial indicates that they need not precede burial in every case." But Halane's claim for a human rights violation was denied. "The evidence does not show that be- ing forced to draw on two days of banked time caused Halane a direct financial or personal hard- ship. What is clear is Halane har- boured the belief that his claim was denied because of reasons that simply did not exist — beliefs that he never directly addressed with the employer at the material times." Reference: Enterprise Rent-A-Car Canada and the Canadian Office and Professional Employees' Union, Local 378. Ken Saunders — arbitrator. David Penner for the employer. Cathy Hirani for the employee. Jan. 26, 2017. < LTD pg. 1

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