Canadian Labour Reporter

June 11, 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 June 11, 2018 ARBITRATION AWARDS The job classification specifica- tion listed three years' experience under the heading of qualifica- tions. When Tammy Johnston, hu- man resources officer, reviewed the resumés, Grass listed "years of experience" in custodial duties and she said she had worked a to- tal of 199.71 days as a custodian 1 with the school district. But Johnston said that although she was the most senior candi- date, she did not possess enough experience as a custodian and she wasn't given the custodian 2 pos- ition. Grass argued that because her experience as a bus driver in- cluded 1.5 hours per day cleaning buses and doing such things as sweeping, mopping, garbage re- moval and cleaning graffiti, bodily fluids and fingerprints from the bus, that meant she had plenty of experience with custodial work. As well, she said she had worked about two weeks in total as a custodian 2 during her time with the district. And she was well-acquainted with the school's cleaning suppliers, which she ac- cessed from the same area that the custodians did. The union, the Canadian Union of Public Employees (CUPE), Lo- cal 1253, argued that the phrase "able to perform the job" in the job description meant that Grass was qualified, and because she was the most senior employee who ap- plied, she should have been hired. As well, because Grass was only 74 days short of having the re- quired three years of experience, the employer should have exer- cised discretion and awarded the position to Grass. Arbitrator John McEvoy dis- agreed and dismissed the griev- ance. "The qualification expressed in terms of 'three years' experience in custodial and minor mainten- ance work' is specific. Grass does not satisfy this qualification," said McEvoy. When the union argued that the experience was not listed under a required qualification, and it should have been given less weight, the arbitrator took excep- tion to that characterization. "The union's argument ground- ed on the absence of the word 'required' in relation to the 'three years' experience' qualification is not tenable. While the word 're- quired' is used in relation to some of the subsequently listed qualifi- cations in the classification spec and the posting notice, it is im- plicit in relation to the three years' experience qualification given its location of precedence as the first qualification listed and the use of the word 'minimum.' It must also be observed that the statement of 'required' in terms of qualifi- cations is also expressed by use of the phrases 'is a requisite' and 'must have.'" And Grass' stated experience as a custodian 2 was challenged by McEvoy. "The union drew the conclu- sion in closing argument that the employer must have confidence in Grass' ability to perform the job or it would not have placed her in a custodian 2 position. Yet, there is no evidence that the employer actually placed Grass in a custod- ian 2 position. There would surely be a record of such a placement yet none was given in evidence in relation to the 'day or two' or even the 'one week,'" said McEvoy. Reference: Department of Education and Early Childhood Development and Canadian Union of Public Employees, Lo- cal 1253. John McEvoy — arbitrator. Louis Leger for the employer. Amanda Atherton for the employee. May 18, 2018. Worker 'able to perform job' as required in agreement: CUPE < Senior custodian pg. 1 United Food and Commercial Workers Union Canada (UFCW), Local 175, received an emailed re- sponse on Sept. 20 to another con- tract proposal that said, "Teach- er's children will pay the same school fees like other parents. No discounts." The employer said the IFS was losing about $33,000 per month because of declining enrolment and it needed to trim costs. During negotiations on Sept. 21, Warsi said he wanted "the teachers to feel the same pain as the parent." When the union responded negatively, Warsi claimed he was "only joking." The issue of one teacher who was charged the full fee for tuition was raised and the employer said it was a mistake and it would be rectified. Ahamed testified that the tu- ition issue was not discussed any further and he interpreted this as meaning the employer had backed off on its initials demands and the issue was no longer raised during the remainder of the bar- gaining talks. An agreement was reached on the first contract on Oct. 24, after a mediator stepped in. The con- tact was ratified on Nov. 3 and it was signed by both parties on Nov. 9. But on Nov. 29, an email was sent to all teachers that said, "As of Dec. 1 (unionized) teachers will be charged fees of $450 per child." The union grieved the decision and asked for the employer to be estopped from ending the bene- fit without agreement from the union. The UFCW argued because the benefit was offered at the IFS's Ajax, Ont., campus, the employ- er discriminated against those teachers at the Toronto campus. The employer argued that the Nov. 29 letter constituted clear notice and it should therefore be able to institute a new policy, and because the tuition benefit was not added into the collective agreement, it no longer applied. Arbitrator Ian Anderson up- held the grievance and ordered the "employer to make whole any affected teacher for the difference between the tuition which they paid and the tuition which they would have paid but for the em- ployer's breach." "I conclude the employer's decision to eliminate the tuition benefit for the teachers at the Scarborough Campus was made to discriminate against them on the basis of their membership in the union, contrary to Article 5.01 of the collective agreement." The "misleading" letter sent to teachers and Warsi's comments during bargaining offered clear evidence that the employer dis- criminated against the teachers, said Anderson. "The context for this statement includes Warsi's comment dur- ing collective bargaining that he wanted these teachers to 'feel the pain' through the removal of the tuition benefit, and the fact the tuition benefit continues to be of- fered to the non-unionized teach- ers at the Durham Campus," said Anderson. "Taken together, these facts are capable of supporting the infer- ence that termination of the tu- ition benefit for the Scarborough teachers was motivated at least in part by the fact they were union- ized," said Anderson. Reference: Islamic Foundation School and United Food and Commercial Workers Union Canada, Local 175. Ian Ander- son — arbitrator. Shazed Siddiqui for the employer. Georgina Watts for the employee. May 30, 2018. < Union drive pg. 1 "Decision to eliminate the tuition benefit was made to discriminate against them on the basis of their membership in the union."

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