Canadian Labour Reporter

July 24, 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 July 24, 2017 said: "Four hours standing and four hours sitting. Patient has is- sues with repetitive movements. No use of knife. Standing one hour at stretch. Prolonged standing or sitting provokes pain." The form also placed restric- tions on the number of steps Mo- hamud could climb at any one time. Initially, the form restricted her movement to five to 10 steps, but it was changed to more than 20 steps. Eventually, a July 28 form prepared by her family doctor stood firm on the five-to10-steps limit. She was provided with a few other positions during this pe- riod, again to accommodate her injuries. Mohamud was taken off the kidney and carcass detail due to other employees requiring ac- commodation. The job was even- tually automated by the company, meaning no workers were able to access it moving forward. A return-to-work plan was pre- pared on July 21 and it stated she would be back on the job the fol- lowing day. Mohamud refused to sign the form because she would have had to walk up a set of 27 stairs to get to the employee lunchroom dur- ing break times. Sofina began to make use of the office lunchroom for various meetings on a regular basis, meaning employees could no longer rely upon it for accom- modation purposes. Mohamud did not return to the plant and has remained off work since that time. The employer relied upon an assessment of Mohamud done by the Canadian Back Institute, which had been treating her with physiotherapy since her last in- jury. It stated she could climb as many as 30 steps at a time. The union, United Food and Commercial Workers, Local 401, filed a grievance on Aug. 20, alleg- ing the company refused to prop- erly accommodate Mohamud and it asked for damages of $10,000, and said the employer breached her human rights. The company sent Mohamud another letter on Sept. 16, 2015, that said: "We are unable to ac- commodate your request for modified duties at this time as you are unable to climb the stairs in order to enter the plant floor. Both plant entrances from either the main office or employee entrance have staircases greater than your five-step restriction at this time." Arbitrator Dev Chankasingh dismissed the grievance. "The union has not established a pri- ma facie case of discrimination on the basis of physical disability since it has not shown that Mo- hamud's knee injury restricted her from climbing the stairs to the employee lunchroom as at July 28, 2015, or thereafter. In ad- dition, in the event that the union had established a prima facie case of discrimination on the basis of physical disability, the employer reasonably accommodated Mo- hamud's stair-climbing restriction to the point of undue hardship." The number of steps in the plant would simply not allow for Mohamud to successfully go back to work at the plant in any capac- ity, according to Chankasingh. "That in effect makes the Mo- hamud's return to work impos- sible since she is required to climb six steps (five stairs) from the plant floor to the office lunch- room if she is allowed to use that lunchroom." Reference: Sofina Foods and United Food and Commercial Workers, Local 401. Dev Chankasingh — arbitrator. Keith Murray for the employer. Katrina Piechotta for the employee. June 20, 2017. Professor grieves after work reduction request denied DESPITE receiving support from colleagues in his depart- ment — who were willing to pick up the slack — a University of Moncton professor was turned down when he asked for a re- duced workload to complete re- search. Louis Corriveau was a profes- sor in the university's econom- ics department. He was hired in 1997 and he received permanent status in 2002. In spring 2015, Corriveau was busy at work on a new research paper and he was participating in a new professor selection pro- cess. As a result, he delayed vis- iting his mother in Quebec City. She subsequently died in July and Corriveau said he was upset about not being able to spend more time with her. In February 2016, Corriveau asked for a reduction in his work- load to 80 per cent, between July 1, 2016, and June 30, 2017. The request was denied on March 31, 2016, by the vice-principal of teaching and research André Samson. Before submitting the work- load request, Corriveau met with Lisa Roy, dean of the faculty of arts and social sciences. She told him to submit a request, but he should expect it to be refused. "The university is not in a po- sition to accept such a request," wrote Samson in his decision (translated from French by Google Translate). "Corriveau can certainly carry out his work as part of a normal workload." Samson testified the decision was his alone and he was not aware of Corriveau's personal reasons for the request or that Roy had previously suggested to Corriveau that he needed to be- come more "productive" in his research duties. The union, Association des bibliothécaires, professeures et professeurs de l'Université de Moncton (ABPPUM) grieved the result and argued the arbitrary decision was not arrived at fairly or reasonably, as directed in the collective agreement. ABPPUM also argued Samson did not ask for any supporting in- formation when considering the request. The university countered and said the application did not in- clude any supporting material, which weakened Corriveau's case for a reduced workload. Arbitrator Elizabeth MacPher- son upheld the grievance, but it was not "discriminatory or in bad faith. However, the decision was arbitrary as it failed to meet the standards set out above." The vice-principal "improp- erly fettered his discretion" in making the decision, according to MacPherson. "Having obtained the endorse- ment of the departmental assem- bly and the dean, an applicant can have a reasonable expecta- tion that the requested reduced workload will be granted and not arbitrarily dismissed because a vice-principal has unilaterally decided, without justification, that leaves under article 37 will only be granted on an excep- tional basis," said MacPherson. "In cases where both the depart- mental assembly and the dean support an application made un- der article 37, the university must provide a cogent and persuasive rationale for refusing the request. That did not happen in this case." And the vice-principal relied upon the wrong article in the col- lective agreement to make the decision, according to the arbi- trator. "Article 37 is clearly distinct from article 24, which contem- plates paid leave to conduct research. An employee who is seeking unpaid leave would reasonably expect that his ap- plication should be made under article 37, not article 24. During his testimony, Samson admitted that he could envision circum- stances in which article 37 could apply to research request. How- ever, it is evident that this was not his opinion at the time he dealt with Corriveau's request," said MacPherson. Since the time had passed to award Corriveau time off, MacPherson ordered "should Corriveau apply for a reduced workload pursuant to article 37 in the future, his application is to be dealt with in accordance with the principles set out in these reasons." Reference: University of Moncton and Association des bibliothécaires, professeures et professeurs de l'Université de Moncton. Elizabeth MacPherson — arbitrator. Sylvie Michaud for the employer. Joël Michaud for the employee. May 19, 2017. < Loss of accommodation pg. 1

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