Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2018 January 22, 2018 ARBITRATION AWARDS deemed to remain temporary teachers not permanent or inde- terminate (which carries the same weight as permanent). "I am deeming your employ- ment to be temporary due to ex- ceptional circumstances pursuant to section 109(2) of the Education Labour Relations Act," said letters sent to five of the teachers. (Dawson was advised her tem- porary status was due to "enroll- ment uncertainty." Dennis and Geisler became indeterminate employees after the grievance was filed; Arnold retired in 2015 and did not testify). The Education Labour Rela- tions Act (ELRA) allowed the ministry to renew contracts for more than two consecutive years in "exceptional circumstances." The union, Yukon Teachers' Association (YTA), grieved the decision and argued exceptional circumstances were not proved by the employer and therefore it broke the collective agreement. All of the teachers had many years of experience working as teachers at various schools from as far back as 2013. All had worked more than two years, which should have qualified them as completing the probationary per- iod, according to the agreement. Lake Apted, director of human resources, registrar, teachers cer- tification, department of educa- tion, testified that each year in November and December, the ministry reviewed staffing levels after receiving requests for leave, transfers, resignations and re- tirements form the usual cadre of about 550 to 600 teachers in Yukon. A guideline was employed in the 2016-17 school year that listed the exceptional circum- stances that must be satisfied be- fore offer letters were sent. Apted testified that leaves of absence were a frequent condi- tion for many teachers in the sys- tem. Once staffing offer letters were written, the deputy minister signed them, according to Apted. Douglas Rody, YTA staff rela- tions officer, provided a chart de- tailing teacher absences since the 2012-13 school year. Seventy-sev- en leaves were listed as the smallest number per year, with 92 representing the largest group in the previous five-year period. The union argued that teach- ers deemed as temporary did not enjoy full union benefits during the summer or priority-hiring provisions, which was unfair. Arbitrator Paul Love upheld the grievances. "I declare that the government of the Yukon has violated s. 109 of the ELRA by em- ploying the grievors as temporary employees after their second and subsequent years of employment." When teachers were not of- fered seniority, it was troubling, said the arbitrator. "If the em- ployer's position is correct and a teacher must serve a probationary period for two years following the start of his or her indeterminate employment, this could result in an employee perpetually in a state of probation as there are in effect no limits on the terms of tempor- ary employees." Despite having been signed by the deputy minister, exceptional circumstances were not proved. "On a balance of probabilities, there was insufficient evidence to estab- lish that there were exceptional circumstances. Mentioning the circumstance in the job posting or a hiring letter is not convincing. " Reference: Government of the Yukon and Yukon Teachers' Association. Paul Love — arbitrator. Ian Fraser for the em- ployer. Christopher Foy for the employee. July 20, 2017. 2017 CarswellYukon 85. Conor Staples, management shift miller, discovered Go- beil's position was empty so he called her on the radio. When he couldn't get a response, he went looking for her. Eventually, he went to the park- ing lot and saw Gobeil inside her car. When he asked her if she had left the site, she answered sarcas- tically, "No," but she was holding a Tim Hortons coffee cup in her hand, which showed she had ob- viously been off-site. Gobeil ex- plained that because the packing machine was jammed, she went for coffee. Gobeil testified she thought they were both joking. Staples tes- tified he often joked with Gobeil because "she has a good sense of humour." Later that day, Staples emailed Frank Jantz, acting plant manager, that said: "I then asked her if she had left the plant. She told me over and over she had not. I told her not to lie to me and she finally admit- ted that she had left, I then asked if she punched out, she told me she had forgot but meant to." During testimony, Gobeil said she didn't realize that Staples was the supervisor on duty, who should have been told about her break. Chris Mallard, packing super- intendent, was Gobeil's direct supervisor and he testified he phoned her on Feb. 22 and told her she was "suspended pending investigation," which he said was the usual procedure in such cases. But Gobeil's phone records showed no calls were made before a Feb. 24 meeting. On Feb. 22, Gobeil came into the facility for her shift, but she couldn't locate her punch card. She found Mallard who advised her Jantz wished to speak with her. Gobeil was told about her sus- pension for leaving without per- mission, which was a serious safe- ty violation considering explosive dust which sometimes built up inside the plant. But she testified: "I only realized I had to punch out, not that I needed permission to leave" No union steward was present during that meeting. After the meeting, she advised Pat Rector, union chair, about the meeting and that she was sus- pended. Rector advised Jeff Ible, union representative, to file a grievance, which he did. The next day, Feb. 24, Jantz pre- sented Gobeil with a termination letter which read: "Committing un- safe acts and failure to follow ADM Plant rules is a very serious offence and the company has zero toler- ance for this kind of behaviour." The union, United Food and Commercial Workers Canada Lo- cal (UFCW), Local 401, grieved the termination and asked for $20,000 in damages to be paid to the union and $10,000 to be paid to Gobeil. It argued the employer breached the collective agreement when it held a disciplinary meet- ing without union representation. Arbitrator Alan Beattie upheld the grievance and ordered a one- day suspension be substituted. He awarded the full damages re- quested. The arbitrator pointed out a less-than-stellar investigation as the main cause for the hasty dis- missal. "It seems Jantz essentially de- cided to invoke section 23 of the rules and automatically treat (Go- beil's) leaving the plant without permission as grounds for termi- nation without a proper investiga- tion of whether it was just cause for termination," said Beattie. Jantz's written rules about leav- ing the plant were "poorly drafted, inherently inconsistent and con- fusing and is certainly not con- sistent with the understanding of several of the witnesses," accord- ing to Beattie. Gobeil leaving without inform- ing the proper supervisor was not entirely her fault, said Beat- tie. "The fact is she did tell some- one and was not trying to hide her leaving. Her understanding as to who was 'in charge' is a cir- cumstance that should have been investigated by Jantz and Mallard and, based on her understanding, she should have been given the benefit of the doubt." "(Gobeil) has been treated very badly by the company despite her willingness to acknowledge her mistake, to recognize that some discipline was warranted, her re- morse and contrition," said Beattie. Reference: ADM Milling Company and United Food and Commercial Workers Canada Local 401. Alan Beattie — arbi- trator. William Armstrong for the employer. Katrina Piechotta, June Ling for the employee. Nov. 24, 2017. 2017 Carswel- lAlta 2560. Educators 'perpetually' in probation troubling: Arbitrator < Punching out pg. 1 < Yukon teachers pg. 1

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