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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8 Canadian HR Reporter, a Thomson Reuters business 2017 ARBITRATION AWARDS August 7, 2017 to the collective agreement. Collectors are required to lock cash and fare media on TTC prop- erty. If the collectors are working at a different station for their next shift, they are supposed to trans- port it the next shift day and be paid for the travel time while car- rying the fare box. Hu believed he would not be paid for the one hour of travel time to Castle Frank station, so he in- correctly took the box home. Early on July 29, Durham Re- gional Police and Toronto Police executed a warrant and arrested Hu. They seized marijuana, hash- ish as well as the fare box. Hu was unable to work his 5:30 a.m. shift that day as he was held in custody until about 4:20 p.m. On August 1, Hu met with a TTC supervisor and an Amal- gamated Transit Union, Local 113 shop steward. When he was asked to surrender his fare box, he told the supervisor he couldn't do so as it was still in the possession of the police. Hu was terminated for "failing to produce his collector fund, re- sulting in loss of care, custody and control of the fund, for mislead- ing TTC management by booking off sick on July 29, 2014, when the grievor was not sick and for not following the proper procedure by taking his collector fund off TTC property." After a few meetings, his dis- missal was upheld by the TTC on August 18. But on November 25, the TTC offered Hu a return to work De- cember 8, but as a crash gate worker pending a successful resolution of his drug possession charges. The offer was rejected by Hu and the union because it came with a drug-test proviso, which Hu and the union found unac- ceptable. On Sept. 1, 2015, Hu was rein- stated to the TTC at the crash gate position. His drug charges were behind him as he was given an ab- solute discharge. The fare box was eventually returned to the TTC on Aug. 4, 2015. Arbitrator Owen Shime found that Hu's "conduct in taking his collectors' fund to his home and keeping it there was a significant breach of his duties and responsi- bilities as a collector." But the offer to reinstate him in December 2014 was "unreason- able" with its stipulation that Hu must submit to drug testing. "I find that by imposing a con- dition that Hu both be 'subject to unannounced drug testing for the entire period of his temporary placement' and that he submit to a drug test as a precondition to his returning to work was not only unrelated to the reasons for his discharge but was an affront to both his dignity and privacy and was an unreasonable precondi- tion to his returning to work," said Shime. The TTC argued that because Hu didn't accept the earlier offer to return to work, he did not at- tempt to mitigate his earlier sus- pension. "I find that there were elements to the offer of reinstatement that were unreasonable and that Hu was not required to accept the commission's offer of temporary placement in these circumstanc- es. "Accordingly, there was not a failure to mitigate and Hu is enti- tled to compensation for the peri- od commencing Dec. 8, 2014, un- til his reinstatement, in an amount to be determined by the parties ," said Shime. Reference: Toronto Transit Commission and Amalgamated Transit Union, Local 113. Owen Shime — arbitrator. Brian Wasyliw for the employer. Joshua Phillips for the employee. March 9, 2017. Vancouver Island cashier fired after returning steaks A LONG-TIME cashier at a Save- On Foods on Vancouver Island was dismissed after she obtained a refund on bad steaks that she said were striploin but it was later confirmed were actually cheaper sirloin steaks. Angela (a pseudonym for the cashier) had worked at the com- pany for 13 years when on June 7, 2016, she returned 1.8 kilograms of steaks that she claimed were "sour." She went to Cass Clark in the meat department, and asked him to weigh and tag the steaks so she could claim a refund. She told Clark that the steaks were striploin so he weighed them and provided a $68.48 label so An- gela could return them at the front of the store. In testimony, Clark said he felt the steaks were more like sirloin but he trusted Angela's word as she was a senior staff member and he provided the label after she told him the refund had already been approved. Daniel Marshall, Save-On's as- sistant operations manager at the time of the refund, approved it but he immediately felt there was something untoward about it and alerted two other managers via text message. Management then began an in- vestigation. A meeting was held with An- gela on June 10, and she was asked to further explain the incident. All employees who were asked about the meat in question agreed it was not striploin, but most likely sirloin. A meat expert employed with the company confirmed the meat was sirloin and tri-tips and not striploin. On June 13, Angela was given a correction action letter by Co- lin Dixon, manager of the store but she refused to sign it and she didn't acknowledge any wrongdo- ing. She was told to clean out her locker and she was terminated for breach of trust. "The steaks she returned were not striploins and she did not re- ceive authorization from anybody in the store. When questioned, Angela lied about the type of steaks and that she had authoriza- tion to return the steaks," accord- ing to the letter. The union, United Food & Commercial Workers, Local 1518, grieved the decision on June 14, and argued the employer did not prove culpable conduct to warrant termination. Arbitrator Andrew Sims dis- missed the grievance. "There has been a serious breach of trust, and nothing has occurred by way of acceptance, apology or explana- tion that gives any hope for the reinstatement of that trust. There is no significant basis to invoke an arbitrator's equitable power to substitute some lesser penalty." Angela probably was aware of the true value of the steaks, ac- cording to Sims. "I find on the balance of proba- bilities that Angela knew through- out that the meat being returned was not the higher-priced strip- loin but a lower-priced cut. Her getting it priced at the striploin price without any recognition that it was bought on sale, I can only find to have been deliberate. Her ongoing insistence on unten- able explanations over the cuts involved and the time and method of purchase, detract considerably from her overall credibility," said Sims. "I find it was the next day that she brought in the meat after hours and then simply told Clark to price the meats specifying only the cut but not the fact of a sale- price purchase. She took the meat to the counter and sought an over- ride, either being challenged but not blocked, or not challenged un- til Monday," said Sims. Reference: Overwaitea Food Group and United Food & Commercial Workers, Local 1518. Andrew Sims — arbi- trator. Michael Korbin for the employer. Chris Buchanan for the employee. July 19, 2017. < TTC collector pg. 1

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