Canadian Labour Reporter

August 7, 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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7 Canadian HR Reporter, a Thomson Reuters business 2017 CANADIAN LABOUR REPORTER NEWS ments were offered to him. The offer included a warning that if he repeatedly refused work assign- ments or there were multiple un- successful attempts at contacting him, they would be documented under a clause in the collective agreement. The collective agreement be- tween Canada Post and its union, the Canadian Union of Postal Workers (CUPW) stated that a temporary employee would be terminated when the employee hasn't demonstrated "reasonable availability in the acceptance of work assignments during any six consecutive months." It also stated that this clause didn't apply during any period in which the employee was on accepted leave with prior written notice. At the time Seivright was hired, the facility where he worked — the York Distribution Centre in On- tario — closed at 3 p.m. on Satur- days and 11 p.m. on Sundays. Dur- ing busy periods from November to early January, the facility would add an extra Sunday shift. Seivright informed the staffing officer at the time of hiring that he had other work commitments as a television voiceover actor and stand-in, which required him be- ing on call. The staffing officer replied that it would be fine if he wasn't able to accept shifts all of the time, as Canada Post didn't guarantee any amount of hours and encouraged other employment for temporary employees such as Seivright. For some time, Canada Post called Seivright during predict- able hours for shift assignments. If Seivright didn't answer, he was given 10 minutes to respond until the next temporary worker on the seniority list was contact- ed. If Seivright called back later than that, he would receive the assignment if the shift was still available. If the shift was offered to someone else, it didn't count against him. Seivright also informed the staffing officer of certain dates he wouldn't be available and they wouldn't call him on those dates. No one told him that there was a minimum number of shifts he had to accept. In late October 2014, Canada Post started using an automated calling system called Eclipse for contacting temporary employees regarding assignments. Seivright found the system called him at un- predictable times — sometimes as early as 7 a.m. and sometimes as late after midnight. Sometimes he only had short notice of less than two hours to report to a shift. Canada Post reviewed the Eclipse data every two months and calculated the average accep- tance rate. Any employees who fell below the average were considered for review. Absences for legitimate reasons were then factored in, and if an employee's availability rate was still too low, a warning letter was sent. Because of the unpredictability of the calls, Seivright missed a few shifts because he was asleep after working the previous night shift and he often received calls seven days a week. In early November 2014, Seivright requested leave without pay until mid-December because of family-related issues. The new staffing officer told him tempo- rary employees were not entitled to unpaid leave and if he chose not to accept Eclipse calls during that period, it would count against him. However, only one per day would count — if he was called multiple times in one day and de- clined all of them, it would only count as one against him. If Seivright accepted the last one, nothing would count against him. After the Eclipse system was implemented, Seivright declined certain shift offers due to audi- tion and acting commitments, as well as family obligations. Though he had originally been told there were no consequences to not ac- cepting shifts, a supervisor told him after Eclipse was introduced the acceptance rate should be 50 per cent. This was followed by letters in May and July 2015 indicated that his level of availability was unac- ceptable and his employment would be terminated if it didn't improve. In June 2015, Seivright and sev- eral other temporary employees complained to Canada Post about the time of Eclipse calls, especially early morning calls after a night shift was worked. Seivright was also concerned he was getting calls to work Sun- day shifts that summer when he always went to church and spent Sundays with his family. In August 2015, the York Dis- tribution Centre's manager of production control and reporting reviewed data from the Eclipse system and discovered that over the six-month period from Feb. 26 to Aug. 29, Seivright accepted 57 out of 151 shift offers — an accep- tance rate of 37.8 per cent. This was considered to be well below the average acceptance rate of his peer group, which was 49.9 per cent. The manager determined that Seivright had not demonstrated reasonable availability for work assignments — as stipulated in the collective agreement — and ter- minated Seivright's employment on Sept. 17, 2015. CUPW filed a grievance for un- just dismissal, claiming Seivright had been consistent in his atten- dance at work. Arbitrator Owen Shime found that the collective agreement made it clear that temporary em- ployees that don't demonstrate reasonable availability shall be terminated and also required "just, reasonable and sufficient cause" to discharge an employee. The reasonable availability clause made sense because the reason Canada Post employed temps was to support the delivery of mail when there are high volumes or absent employees. However, Shime found that the collective agreement, while re- quiring "reasonable availability," didn't define a specific acceptance rate nor did it indicate an em- ployee's acceptance rate should be measured against the peer average to determine reasonable availabil- ity. In fact, acceptance rates weren't measured until the Eclipse calling system was implemented, but the collective agreement wasn't al- tered to recognize that. In addition, Canada Post's guide for temporary employee availability discussed reasonable availability over any six-month period, but also didn't set any pa- rameters for it. Shime also found that Canada Post didn't give any consideration as to why Seivright declined some shifts or didn't answer some calls, when Seivright had made the cor- poration aware of his other job and family obligations — especial- ly since Seivright had been told when he started that he wouldn't be penalized for declining shift of- fers. Simply using the formula it had decided upon when the Eclipse system was implemented without considering any other factors was unjust, said Shime. "If the parties had intended that reasonable availability be deter- mined by a mathematical formula they could have simply provided for it in the collective agreement," said Shime. "What is so startling about (Seivright's) termination was that it is based solely on the percentage numbers with no consideration given to his personal circum- stances." Canada Post was ordered to re- instate Seivright with his seniority unchanged and compensation for lost pay. For more information see: • Canada Post Corp. and CUPW (Seivright), Re, 2016 Carswell- Nat 5923 (Can. Arb.). < Not meeting standard pg. 1 'No consideration given' to dismissed worker: Arbitrator Photo: Monkey Business Images (Shutterstock)

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