Canadian Labour Reporter

May 7, 2018

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 2018 May 7, 2018 ARBITRATION AWARDS be reimbursed for reasonable ex- penses," according to article 20.06 (expense claims) in the collective agreement. The article allowed workers to receive reimbursement of $10 for breakfast, $12 for lunch and $21 for dinner. The agreement also registered a 20-kilometre area from the employee's headquarters that was considered the local re- gion, and expenses were not cov- ered within this area. But on July 6, 2016, ICBC told the union, Move-Up Together (COPE), Local 378, that the prac- tice would be ended moving for- ward. ICBC's reasoning was that it reduced the servicing boundaries for workers who could claim ex- penses. "Employees doing esti- mating roadwork will no longer be entitled to expense for lunch based on ICBC's road territory," wrote John Foreman, manager of claims operations, in a memo. The employer instead sug- gested, "If taking a lunch, that the employee may stop by another ICBC location and use that of- fice lunchroom," according to the memo, which was issued to 80 estimators who worked out of the Coquitlam, B.C., location. Typically, each estimator was required to do one day of road- work per month when most of the shift would be completed at vari- ous locations away from the Co- quitlam office. But the union argued the col- lective agreement wording was unambiguous and it said employ- ees working away "will be reim- bursed" for expenses, and the practice had been ongoing since 1974. It accused ICBC of introdu- cing an unreasonable practice by cancelling the expenses-allowed provision. ICBC countered, with lawyer Chris Leenheer testifying: "Em- ployees are now driving in a more confined area. That was what caused the corporation to look at the 'meal expense' issue." The estimators' regular job description allowed workers to claim meal expenses when they were inconvenienced by being away from the home base, said the union. Due to the nature of an es- timator's work — which often in- volved regularly travelling to dif- ferent areas of the region— having them rely on bagged lunches alone was unreasonable. Arbitrator Joan McEwen up- held the grievance and ordered the employer to continue to reim- burse employees. "Having carefully considered the evidence and the submissions, I have determined that the lan- guage in article 20.06 (b) bears the meaning advanced by the corpor- ation but that, due to the unique circumstances of this case, the practice cannot be terminated until the expiry of the collective agreement," said McEwen. "The corporation did not intro- duce a new policy; rather, it took the opportunity, pursuant to the geographical boundaries being reduced, to institute what it be- lieved to be the correct interpret- ation of article 20.06 (b)." However, by continuing to re- imburse estimators since 1974, this proved that ICBC tacitly ac- cepted the union's interpretation of the collective agreement. "Given its persistent practice over the years — in the face of policy directives spelling out the conditions for entitlement there- to — the corporation must be deemed to have known that the estimators were being reimbursed for a benefit to which they were not entitled," said McEwen. "In the circumstances, I am satisfied that estoppel has been established. For the duration of the current collective agreement, CEF estimators performing road duties will be able to claim the meal-expenses benefit." Reference: Insurance Corporation of British Columbia and Move-Up Together (COPE), Local 378. Joan McEwen — arbitrator. Chris Leenheer for the employer. Brian Nelson, Jude Morrison for the employee. Feb. 14, 2018. 2018 Carswell- BC 464 Desjarlais had been prescribed medical marijuana for head- aches and this was known by his employer. But, "he is not to oper- ate the Zamboni, forklift or lawn mower for a 20- to 30-minute time after vaporization," said a July 15, 2015, letter provided by his doc- tor. Desjarlais testified that he didn't smoke marijuana as many times as Constantino and Pacis claimed. He said he tried to do so during a stop in Saskatoon, but he wasn't feeling well so he didn't continue. For the rest of the week, Desjar- lais continued to vape marijuana while driving to the course loca- tion in Humboldt from their ho- tel, according to Constantino and Pacis. Desjarlais also vaped on the return trip home to Kindersley on Friday, they said. During the week in Humboldt, Desjarlais made a post on Face- book, that highlighted his loneli- ness: "Thought it would be a good week but they stick together and I'm left eating all meals alone and just sitting (in) my room." How- ever, he removed the post after about 20 minutes and said he didn't mean to cause any harm. Some of Constantino's friends alerted him to the post, which caused him to tell management about the vaping during the trip. On April 29, 2016, manage- ment held a meeting to discuss what allegedly took place in Hum- boldt, and Desjarlais was sub- sequently terminated during a meeting on May 10. "Your actions were a serious, willful contravention of the Crim- inal Code of Canada whereby your deliberate actions put yourself and others at increased risk of death or serious injury. For these reasons, it is our position that im- mediate dismissal is the appropri- ate disciplinary measure to take for these violations," said the letter of dismissal. The union, Canadian Union of Public Employees (CUPE), Local 2740, grieved the firing on May 12 and argued the charges were "without just cause and proof of their allegations." Arbitrator William Hood (and employer-nominee board mem- ber Kevin Wilson) dismissed the grievance. "(Desjarlais) brought the marijuana on the Humboldt trip to use it in the manner he did. This does not mean he should be deprived of using marijuana for the medical purpose intended. There is no reason he could not have done this more discreetly rather than in the presence of his co-workers and while driving and having the care and control of the town vehicle, or riding in the town vehicle." Desjarlais' actions constituted a "serious misconduct," said Hood, and the employer did not infringe upon his accommodation rights. "The accommodation required (Desjarlais) not to mix marijuana with operating motorized equip- ment. It is the mixing of the use of marijuana with the operation of the town vehicle that is the mis- conduct leading to termination." But Andrew Huculak, nomi- nee for the union, disagreed and found inconsistencies with the testimony of Constantino and Pacis. "One co-worker, who oc- cupied the passenger seat most of the time while the grievor was driving, said he never saw the single-use vaporizer being loaded in the vehicle. He then admitted he never saw it being loaded at all. The other co-worker also said he never saw it being loaded." And the reasoning for their dis- closure to management was dubi- ous, said Huculak. "They retaliated against the author for his Facebook post, exaggerating or, at best, misun- derstanding what they saw of his medical marijuana use during the trip to Humboldt." Reference: The Town of Kindersley and Canadian Union of Public Employees, Local 2740. William Hood — arbitrator. Heather MacMillan-Brown for the employer. Janice Janzen for the employee. April 18, 2018. Relying on bagged lunches unreasonable to workers: COPE < Marijuana-filled driving pg. 1 < ICBC pg. 1

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