Canadian Labour Reporter

June 26, 2017

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 2017 ARBITRATION AWARDS June 26, 2017 all hours worked, including trav- el time. On May 26, 2016, Dottridge finished a round of travel to Lon- don, Ottawa, Kitchener-Wa- terloo and finally, to Russell and Pembroke, all in Ontario, and he then submitted a request to have 64 hours credited into his lieu bank. But Chao only entered 22 hours into the system, leaving a shortfall in Dottridge's mind of 42 hours. The union, Ontario Public Service Employees Union, Local 503, grieved the decision May 18 and asked for 68.5 hours to be credited into Dottridge's lieu bank and $10,000 for mental dis- tress. Because the arbitration hear- ing wasn't held until May 30, 2017, Dottridge also asked for another 24.5 hours for more travel time completed since the grievance was originally filed. The union argued that be- cause Dottridge was in charge of college materials such as market- ing brochures, a laptop comput- er, a TV monitor or a projector, and other property and the fact that he was away from his fam- ily, which was "tough," he should be compensated for the hours between 8 p.m. and 11 p.m., usu- ally spent at a hotel away from his home. After thoses hours, the col- lective agreement said: "When sleeping accommodation is pro- vided, the hours between 11 p.m. and the regular starting time of the employee shall not be cred- ited." Arbitrator Paula Knopf denied the grievance. "The facts in the case at hand reveal no significant responsibil- ities or duties with respect to the employer's materials after em- ployees arrive at a destination. If the facts had disclosed that the transportation of materials also required significant time in loading, unloading or setting up displays after regular hours, that might have supported a claim for compensation," said Knopf. "However, that would not be 'time spent in travelling'; it would be 'work' under another heading and therefore outside of the scope of this grievance." Because the collective agree- ment was "not the clearest" it cannot be implied that compen- sation must be paid for travelling time, said Knopf. "There must be 'clear, specific and unequivocal' language to support a claim for compensa- tion. A monetary benefit can- not be simply inferred. There is an onus to establish the clear basis for a monetary claim," said Knopf. "The article credits employees 'while travelling' with 'time spent in travelling'. 'In travelling' or 'while travelling' does not equate with 'away from one's home,'" ac- cording to Knopf. "Travel is an active process of physically moving from one place to another. 'In travel' or 'while travelling' does not in- clude the time after arrival." When Dottridge was travel- ling, he was not constanly on duty working and he was free to leave the hotel after hours to do whatever his wished, according to Knopf. "Turning to the union's argu- ment that the time spent away from home is a hardship that should be compensable, the col- lective agreement does not sup- port this concept," said Knopf. "However, the employer re- iterated that employees will be paid if they are directed to per- form work after regular working hours while they are away from home. The fact that an employee transports equipment and mate- rials for the college does not nec- essarily mean that the employee is required to 'work' while he has possession of that property," said Knopf. Reference: Ontario College of Trades and Ontario Public Service Emploees Union, Local 503. Paula Knopf — arbitrator. Landon Young, Amanda Boyce for the employer. Jesse Gutman for the employee. June 9, 2017. Alberta food-services worker fired after not answering recall DURING THE Christmas period, a Fort McMurray, Alta. mining camp commonly shut down and temporarily laid off employees working in the camp's kitchen. When Wadii Ben Said failed to respond to numerous phone calls in Jan. 2015, the employer, Com- pass Group Canada, terminated him for refusing a recall to work. Ben Said — who had worked for the company since Jan. 15, 2013 — spoke with Prakash Uthirapathy, manager of the Chelsea division lodge, about the layoff scheduled on Dec. 23, 2014. He and his wife were planning on a vacation and wanted to take the time off via a voluntary layoff. They each signed a voluntary layoff form that would protect their seniority rights during the Christmas time off, but the form said a worker: "may be recalled at any time by (the employer) to meet their commitment." On the form, Ben Said filled out the space for phone numbers and wrote down an email address un- der his contact information. The couple said they were also assured during the meeting that there would be no recall at the Chelsea lodge until Jan. 28, 2015. But Uthirapathy testified he was too busy during that meeting to of- fer such an assurance and he said he couldn't arbitrarily overrule layoff conventions there were stip- ulated in the collective agreement. "How can I give a guarantee to somebody? It's absolutely not pos- sible," said Uthirapathy, explaining the recall procedures are triggered when the mine needed more food- service workers. Uthirapathy said the Ben Saids could have submitted a vacation request form, which would have allowed them to take a vacation without incurring any issues. They left for Mexico on Jan. 2, and returned on Jan. 16. But the mine returned to full operation in early January and Kevin Stead, food services manag- er, called the home phone number on Jan. 6 and 7, and left voice-mail messages advising them to return . Another manager left a final message on Jan. 9, advising a re- turn call by 5 p.m. on Jan. 10, or Ben Said would be terminated. On Jan. 12, a voluntary resigna- tion form was sent to the union, Unite Here Canada, advising them Ben Said had effectively resigned. They couple returned to their Calgary home on Jan. 16 and lis- tened to the messages. Ben Said immediately called Uthirapathy but after a few days of discussion with the human resources depart- ment, the decision to terminate did not change. The union grieved the dismissal on March 16. Arbitrator Jan Smith upheld the grievance and ordered Ben Said reinstated with full back pay. "Ben Said lost his job as a result of his failure to meet the require- ments of the employer's recall protocol — a unilaterally imposed workplace rule. I have concluded that without sufficient evidence of the scope and application of the rule and the notoriety of the con- sequences for its breach — cou- pled with the ambiguities set out in the employer's voluntary layoff form — the current recall protocol is not reasonable in all of the cir- cumstances." The fact that the employer did not send an email even though it had a spot to fill it out in the form Ben Said "had a reasonable excuse for his failure to respond to Uthi- rapathy's telephone messages," said Smith. The collective agreement should be amended to clarify the layoff and recall procedures, ac- cording to Smith. "Uthirapathy testified that the recall protocol normally allows a laid off employee three days to respond; it would have been help- ful to have been provided with additional evidence to establish when the protocol was created; how the union and its members were advised of the protocol; when the three-day 'norm' starts to run; when, if or upon what basis a fail- ure to meet the three-day guide- line would be excused; or, what the consequences of that failure would entail." Reference: Compass Group Canada and United Here, Local 47. Jan Smith — arbitrator. Joyce Mitchell for the employer. David Mercer for the employee. March 23, 2017. < Travel-time credit pg. 1

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