Canadian Labour Reporter

7 Canadian HR Reporter, a Thomson Reuters business 2018 CANADIAN LABOUR REPORTER ARBITRATION AWARDS from SCRD that detailed new job descriptions. "While the body of the job description will remain the same, Raph will now be called 'wa- ter and energy projects coordina- tor' in support of various key proj- ects currently underway. Raph will now report to Dave Crosby, manager, utility services, special projects," read the letter. But in May, the union discov- ered Shay was required to attend evening meetings after 5 p.m., and he was not paid a premium. The collective agreement said "regular hours for all inside workers con- sist of a maximum of seven hours" between 8 a.m. to 5 p.m. Employees who completed works after those hours were sub- ject to being paid a premium rate, said the union. The job description for the sustainability and education co- ordinator called for the worker to complete "seven hours' work per day, Sunday through Saturday, between the hours of 6 a.m. and midnight," which would allow for evening work to be paid only at straight time. On June 22, Unifor grieved the treatment and asked for Shay to be paid premium hours when he worked after 5 p.m. between May 8 and May 24. SCRD argued the job respon- sibilities were the same, only the name was different. Arbitrator Richard Coleman upheld the grievance. "Shay, the water and energy projects coor- dinator, is not exempted by letter of understanding #10, from the restrictions of 'regular hours for inside employees' set out in article 11, A(a)(i). Shay is to be paid in ac- cordance with article 11, A. (a) (i), commencing in May 2017." SCRD's contention that the jobs were the same should have become part of a new negotiation, said Coleman. "If indeed Shay's job 'requires a work schedule that includes day, evening and week- end shifts as a normal course,' in- cluding his job in letter of under- standing #10, in addition to the position currently filled by Clark, it must be by mutual agreement. Thus far, there has been no such agreement." By changing the job title, this sent a clear signal about the new position, according to the arbitrator. "What may have been the same job with minor differences oc- casioned by the different field of water and energy was given rec- ognition as a distinct classifica- tion, which on its face, implies a more significant difference from the original position, and most importantly, took it outside of the language of letter of understand- ing #10 which is explicitly limited to a different classification," said Coleman. "I appreciate that this may ap- pear to be a technical and narrow- ly determined conclusion. But to decide otherwise would effective- ly allow a single party to the col- lective agreement to unilaterally vary the letter of understanding to now relate to two classifications: the sustainability and education coordinator plus the water and energy projects coordinator." Reference: Sunshine Coast Regional District and Unifor, Local 466. Richard Coleman — arbitrator. Gerry Parker for the employer. Scott Rush, Kevin Hancock for the employee. Dec. 12, 2017. 2017 CarswellBC 3481 < Premium-pay pg. 1 from April 2 to 8, 2017. He made the request in February and be- cause the employer had been generous in the past with other workers' requests, Baker believed it would be approved. However, Ken Lake, senior master, sent a response on March 1 that read: "I am sorry I cannot approve your requested LOA (leave of absence) for the week of April 2 to 8. This is a very criti- cal time of year for the start-up of the Holiday Island. She has a new propulsion control system being installed and is to go on sea trials by mid-April at the latest." On March 20, Baker sent an- other request to Don Cormier, vice-president of operations and safety, to reconsider the refusal. He said he had already paid for the ticket, worth $4,200, and Baker had an agreement with another electrician, Brian McCarron, to fill in for him while he was away. But again on March 24, the re- quest was denied by Cormier be- cause "the electrician's availability during the removal/installation of new propulsion controls is very important." Baker made a third request on March 30, but the leave was refused. On April 1, Baker informed Denis Maloney, chief engineer, that he was going on leave for union business. "I was scheduled to attend the union meetings with Craig in Char- lottetown on Monday, Tuesday and Wednesday, leaving only Thursday for me to be onboard, so no great amount of time will be missed," worte Baker. "I have arranged with Brian McCarron to cover me should you need him for any elec- trical issues that may arise." However, Baker was not a member of the union executive and he subsequently took the week of April 2 to April 8 off to attend his friend's wedding in Mexico. Baker was dismissed after he returned. He sent a message to Stephen Raisbeck, technical superinten- dent, on April 25 asking for the employer to reconsider. "I am be- ing treated unfairly and unjustly in comparison to others and to past practices, and I would ask you to review the stance that you have taken." The union, Unifor, Local 4508A, grieved his dismissal and cited a previous case that involved a worker who took time off de- spite being told not to. The employee had 10 demerit points on her record and was given 90 points for the absence, which triggered the company's dismissal level of 100 demerit points and she was then fired. The employer argued Baker's actions were "disrespectful, insub- ordinate, and manipulative," and therefore his termination was valid. Northumberland Ferries also claimed that because Baker de- nied them his services during the new installation, it resulted in ex- tra costs on the project. Arbitrator Susan Ashley dis- missed the grievance and as- signed blame to Baker. "Looking at the decision to ter- minate, I note that (Baker's) ac- tions were premeditated and not spur-of-the-moment. His actions indicate that he simply was not going to accept the employer's de- cision. This constitutes significant insubordination," said Ashley. "On the one hand, (Baker) has no previous discipline; on the other, he shows little remorse for his actions. Nor was he entirely candid with the employer in the process." Baker's letter to the chief engi- neer in early April proved he was not honest with Northumberland Ferries. "His letter to Maloney was disingenuous, indicating that he was scheduled to do union business for three days, leaving him only one day to be on board," said Ashley. "He knew when he wrote the letter that he would not be doing union business for those three days, and to suggest that he would only be taking one vacation day is misleading, at best," said Ashley. Reference: Northumberland Ferries and Unifor, Local 4508A. Susan Ashley — arbitrator. Murray Murphy for the em- ployer. Gary Healey for the employee. Oct. 3, 2017. 2017 CarswellPEI 59 Worker exhibited 'significant insubordination': Arbitrator < Electrician terminated pg. 1

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