Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2018 January 29, 2018 ARBITRATION AWARDS union, said he entered into discus- sions with Ivor MacGregor, vice- president of Sodexo Canada (the employer), on July 6, 2012, about a new collective agreement. They worked from an existing collective agreement that covered workers at the Pioneer Camp site. Also attending were Vanessa White, senior director of human relations, for the company and Joanne Moody, secretary-treasur- er, for Unite Here. Robb said the subject of how the head rate would be paid took place, but no firm decision was made. As he understood it, the premiums were added to the wage rate for workers acting in the head capacity. As well, one hour of overtime pay would be added for employees working a shift as a head. Robb further testified that night- and spilt-shift premiums were not added to the wage rates but they were listed under the pre- miums section of the agreement. On Oct. 16, 2012, the collec- tive agreement was signed by both parties and no further discussions about the head-premium issue were raised. The union discovered the wage discrepancy shortly before fil- ing the grievance in March 2015, according to Robb. He testified a steward brought up the issue which was then confirmed after Robb spoke with a manager. The steward's pay stub showed the $1-per-hour head rate was listed as a separate entry and it was shown as "Shft Lh," which Robb testified was not something understood by the union, but rather the employer. Moody, who took notes at the 2012 meeting and typed them up shortly thereafter, testified the discussion happened as Robb said and it was agreed by all parties present that the $1 per hour would be added to the wage rate. If the sides had wanted the head rate to be added to the premi- ums section, it would have been included in article eight, which lists all the other premiums, said Moody, but instead it was includ- ed in appendix A, which lists all the wage rates. MacGregor testified that he recalled little about the meeting other than he wanted to address the issue of overtime on Saturday and travel time. He said it was his understanding that the overtime added to the head rate would be forbidden under the agreement's no-pyramiding provision, which were standard in all other agree- ments with Suncor. When asked if White would be able to provide notes backing up his side of the story, MacGregor confirmed she was no longer with the employer and she wasn't avail- able to testify, despite being his partner. MacGregor also said White's notes were destroyed in a 2017 fire. Suzanne Young, payroll man- ager Canada for Sodexo, testified the system didn't allow for the overtime rate to be added direct- ly, so a separate entry had to be made, thus explaining the "Shft Lh" designation. The employer argued for estop- pel and any possible payments should be limited to 14 days prior to the grievance's filing. It also ar- gued that the grievance should be dismissed due to the long delay of 19.5 months in filing. Arbitrator David Tettensor al- lowed the grievance and ordered the employer to pay all appropri- ate rates, but only for one year. "I conclude that the proper interpre- tation of the collective agreement is that the one-dollar-an-hour premium for designated heads set out in appendix A is added to the wage rate and to be used in the cal- culation of overtime." The pay stub's layout was de- cried and may have contributed to any confusion faced by employ- ees, said the arbitrator. "The earnings statements provided to employees here, in my view, are not as clear as they should be. There is no item that identifies the head premium as such. The item setting out the one dollar an hour is described as Shft Lh. It is not clear to where the one hour of overtime is set out," ac- cording to Tettensor. Reference: Sodexo Canada and Unite Here, Local 47. David Tettensor — arbitrator. Julie Menton for the employer. David Mercer for the employee. Nov. 28, 2017. 2017 CarswellAlta 2614 be cleaned up before they could paint. Labourers interrupted their work and informed them it was their job to do the cleaning work. Stewart and Shaw stopped what they were doing and waited for the cleaning to be done before they started painting. A superintendent arrived at the scene and berated Shaw and Stew- art for not working. The super- intendent cleaned up the water himself. The superintendent then sum- moned Garry Johnston, foreman, to the helideck and said the job was cancelled. Stewart and Shaw complained to Brian Perry, the shop steward, about the super- intendent doing bargaining unit work by sweeping the deck. A series of meetings were held between the workers and the su- perintendent, who became angry when he perceived Stewart and Shaw were not working. The next day, Stewart was at home during his scheduled sev- en-day rest period and he was in- formed by telephone that he was laid off due to a shortage of work. Stewart testified he was confused by this because there was talk of more work coming up and he believed that his layoff was a re- sult of him informing the union about the superintendent doing the work of labourers on Sept. 5, as well as the fact he refused to do unsafe work (painting while the deck was wet). Stewart returned to the job on Nov. 21 and worked until Dec. 12, when he was again laid off. Stew- art was back on the job on Feb. 22, 2017, and he was working at the site at the time of the grievance hearing. The employer argued that Stewart had been laid off due to lack of work, but the hearing heard testimony that other paint- ers were working overtime before and after Stewart was laid off. It said the collective agreement called for a worker to be given four hours of notice of layoff and, as such, Stewart was properly noti- fied. Arbitrator Dennis Browne up- held the grievance and ordered Stewart to receive "full redress" for the time missed. "I am satisfied that this is a dis- charge and not a layoff. I come to that conclusion for two combined reasons. First, the reasons for the layoff are essentially disciplin- ary in nature: the alleged failure of (Stewart) to work properly and efficiently and the alleged safety issues. Second, (Stewart) was not merely laid off. He was told he would not be recalled to the site. The only thing that suggests this might be a layoff is the fact that the employer used the word 'lay- off ' in the termination letter," said Browne. "Given all of the evidence, it was more probable than not that (Stewart) was discharged as a dis- ciplinary response to the alterca- tion of Sept. 5, 2016, and not laid off for any economic reason." The arbitrator relied on evi- dence of staffing levels from the union that showed "hours for work for painters was increasing," and the employer's histogram — which it offered as evidence — was only a planning tool and was not "reliable." Reference: Hebron Project Employers' Association and International Union of Painters and Allied Trades, Local 1984. Dennis Browne — arbitrator. Blair Pritchett for the employer. Ray Mitchell for the employee. July 13, 2017. 2017 Carswell- Nfld 369 Employer representative had no memory of 2012 bargaining < Fired via layoff pg. 1 < Head rate pg. 1

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