Canadian Labour Reporter - sample

7 Canadian HR Reporter, a Thomson Reuters business 2018 CANADIAN LABOUR REPORTER ARBITRATION AWARDS time off due to his low-seniority status, so he thought that by re- questing leave with three months of advance notice, he would be successful. Bilinski had made an agree- ment with Avery Parle, relief correctional officer (RCO), to cover his July shifts. The collective agreement denied vacation leave to officers if four other workers had already booked off vacation time, and that was the case in July 2016. In denying the leave request, Wayne Jure, NSCC deputy war- den, wrote, "Parle is not on sched- ule to apply a shift exchange and we have five officers off during this time frame." (The vacation policy allowed for more employees to book time off for vacation — if operational requirements such as a lesser in- mate population allowed for it.) Parle worked a relief assign- ment that ended in May, and no further shifts were booked for him, including in July. On April 19, Chris Potyok, also a correction officer, requested time off for one shift on April 23. Because two other officers booked off for that shift, Potyok's request was also denied. The union, Union of Northern Workers, PSAC North grieved the denial on July 8. Potyok was advised that be- cause one extra staff member was on duty during the shift, he should show up at his regular time, and if nobody else was off, Potyok's leave would be allowed. After he arrived at work on April 23, Potyok was told that an- other officer had called into the office earlier in the day and re- quested leave and it was granted. Potyok worked his shift, but was allowed to take the final two hours off. On July 7, the union grieved the decision against Potyok. It had also grieved the policy on June 22, alleging the employer didn't take "every reasonable effort" to accommodate workers' leave re- quests. Arbitrator Allen Ponak upheld the grievance for Potyok, but de- nied the policy grievance and that of Bilinski. "Rejecting Bilinski's proposal to have RCO Parle cover his shifts was reasonable in the circum- stances," said Ponak. "Allowing unassigned RCOs to volunteer for shifts or to make separate arrangements to cover shifts for COs would enable some RCOs to have more work op- portunities than other RCOs, contrary to the contractual re- quirement of ensuring equitable allocation of relief opportunities," said Ponak. But Potyok was unfairly treat- ed, ruled the arbitrator. "I find that the employer failed to make every reasonable effort to grant Potyok his vacation leave as requested for April 23. The close proximity of the leave application to the date of the leave should have made operational requirements reasonably predictable, a fact em- phasized generally by senior man- agement witnesses," said Ponak. "While there is never perfect predictability, four days' notice, extra staff, and the absence of any evidence of special operational concerns should translate into leave approval." The policy grievance failed, said Ponak, because, "one exam- ple of the misapplication of the policy cannot not lead to a gen- eral conclusion that the policy has been inconsistently applied. The union would have had to provide substantially more evidence of in- consistent application to meet its onus and overturn the ad hoc va- cation leave policy." Reference: North Slave Correctional Complex and Union of Northern Workers, PSAC North. Allen Ponak — arbitrator. Rebecca Thomson for the employer. Christopher Buchanan for the employee. Nov. 9, 2017. 2017 CarswellNWT 89 department both applied for the position. The other worker was promoted so Sonier filed a griev- ance on Aug. 15 through the Ca- nadian Union of Public Employ- ees (CUPE), Local 804. "The competition for this po- sition was unfair to Sonier as the other applicant, who is also a se- nior skilled labourer, was already placed in the equipment on a regular basis all winter and sum- mer while equipment op did the labour work," said the grievance. During the testing process, both workers were asked to dem- onstrate competence on a back- hoe and a frontend loader with a bucket. Owen MacDonald, op- erations supervisor, oversaw the tests. When he operated the backhoe, Sonier did not engage stabilizing bars, which was deemed unsafe, said MacDonald. Sonier was given a passing grade nonetheless. In the frontend loader test, Sonier testified, "I had difficulty so I stopped. I could not do the task." The other candidate was able to demonstrate competency in both tests, said MacDonald. On Sept. 18, the city posted a temporary position as equipment operator and Sonier was awarded the position. In the grievance, the union ar- gued Sonier did indeed pass all the tests except for one (operating the loader with a snow plow) and as the senior candidate, he was en- titled to be offered the permanent position. And because the necessary qualifications section was the same for both permanent and temporary equipment opera- tor positions, the fact Sonier was hired in the temporary slot meant he was qualified to be hired into the permanent operator position. Arbitrator George Filliter, chair, and board members Bob Crockett and Wayne Carew, concurred. "The grievance is partially up- held and the employer is ordered to appoint (Sonier) to the perma- nent equipment operator posi- tion posted in July 2015 and to pay (him) the difference between the rate of pay for an equipment oper- ator to the rate of pay he received during a part of this period as a semi-skilled labourer in the mu- nicipal works department." However, Sonier was ordered to be given on-the-job training, as specified in the collective agree- ment, for six months and he had to serve a six-month trial period. Sonier didn't perform as well as he should have during the test- ing process, but MacDonald did award him a passing grade. "(Sonier) acknowledged he was not able to perform the work on the frontend loader with the plow. This, in and of itself, is sufficient to the board to conclude (Sonier) did not meet the 'necessary qualifica- tions,'" said Filliter But by then hiring Sonier in the temporary worker slot, the City of Summerside in effect displayed confidence in his abilities despite "an incongruity," said the arbitra- tor. "The actions of the employer in appointing (Sonier) to the equipment operator position on a temporary basis is significant. The evidence was the temporary equipment operator position was posted in accordance with the terms of the collective agreement and in the posting, the 'neces- sary qualifications' were identical to the 'necessary qualifications' found in the permanent equip- ment operator's position as post- ed approximately two months earlier," said Filliter. Reference: City of Summerside and Canadian Union of Public Employees (CUPE), Local 804. George Filliter — arbitra- tor. Matt MacFarlane for the employer. Bill McKinnon for the employee. June 26, 2017. 2017 CarswellPEI 38 Employer didn't take 'every reasonable effort': Arbitrator < Senior candidate pg. 1 < Double denial pg. 1

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