Canadian Labour Reporter

7 Canadian HR Reporter, a Thomson Reuters business 2018 CANADIAN LABOUR REPORTER ARBITRATION AWARDS allowances paid only where an employee is on duty or on a legal layover during an entire recog- nized meal period," read arti- cle L55.08.01 of the agreement, which covered all cabin personnel employed by Rouge of the main carrier, Air Canada. The union's main argument arose from a company document, entitled "ePub," that listed certain requirements of the job. Flight attendants were required to "attend all training sessions when assigned. Training sessions are considered flights (duty). Keep yourself informed of the local re- quirements and start times," it said. However, the employer coun- tered and said the ePub document was simply a guidebook and could not be considered an official legal document. The employees were, however, paid a 50 per cent credit for every hour spent training, according to Christine Devine, general man- ager for labour and crew perform- ance at Rouge. As well, the employees were entitled to a per-diem payment and two hours per day of pay when they travelled for training pur- poses. But, said the company, attend- ants were not entitled to be paid for mandatory training while at the employee's home base. The union also said that when attendants worked on an on-call basis that included a meal period, they were paid a meal allowance. And the fact that training time was also tracked with respect to mandatory rest periods and max- imum consecutive hours worked meant that this type of training should be considered duty, said the union. Arbitrator Jesse Nyman dis- missed the grievance. "In order to accept CUPE's pos- ition that a flight is not a prerequi- site to the receipt of a meal allow- ance, I would have to ignore the use of the headings 'Departures' and 'Arrivals' in article L55.08.02 and conclude that the parties in- tended a per diem to be only pay- able in connection with a flight but that the payment of a meal al- lowance does not require a flight," said Nyman. "Moreover, article L55.06.08 expressly provides for, in part, the payment of a per diem (or payment to cover meal expenses while on a pairing) to flight at- tendants who are required to trav- el away from their home base for training," said Nyman. And the document on which the union based much of its argu- ment was not persuasive enough for the arbitrator. "While the 'ePub' clearly sets out Rouge's expectation that training is mandatory, it does not contain any reference to compen- sation for training. While it does equate training with 'flights,' the nature of that statement is equivo- cal at best," said Nyman. "In the absence of more, I would not be prepared to draw the conclusion that Rouge in- tended to commit to any type of compensation during training," said Nyman. The union's call for an estoppel against the employer was also dis- missed by the arbitrator. "Rouge's consistent practice of not paying meal allowance to flight attendants engaged in training at home base was known to CUPE through the first-hand knowledge of its officers and members," said Nyman. "That practice however re- mained unchallenged through- out the full term of one collective agreement and the subsequent bargaining for the current collect- ive agreement," said Nyman. Reference: Air Canada Rouge and Canadian Union of Public Employees, Air Canada component. Jesse Nyman — arbi- trator. Jackie VanDerMeulen, Irene Chrisanthopoulos for the employer. Adrienne Lei, Brett Hughes for the employee. May 22, 2018. 2018 CarswellOnt 8029 Non-payments 'unchallenged' by union for years: Arbitrator < Flight attendants pg. 1 terminated on Oct. 5. "The witnesses stated that you are the most racist person and that you work in discriminatory comments into each conversa- tion. As a result of your negative behaviour, one witness also stated that he is seeking medical atten- tion," read the letter of dismissal. When he worked with Swain- ston in the past, Parratino heard him call a Saudi Arabian colleague a "jigaboo," he testified. During one shift working in Calgary's Chinatown, Swainston made disparaging comments about Chinese persons and a col- league told him to stop because he had Asian relatives, testified one colleague. As well, Swainston said repeat- edly that "Filipinos didn't carry their load" when referencing other co-workers. "Dan is the most racist person I have worked (with), (he) worked in discriminatory comments into every conversation. I would rath- er take a day's hit in pay than put (up) with him," testified another co-worker. Finally, Jawaid Israeli, a Saudi Arabian colleague, testified that he had been warned previously about working with Swainston, because he was the only visible minority on the work crew. When Swainston was asked to clarify the comment about Israeli, he said that he might have used a pidgin term "jag avu aller," that he had learned years ago while working in South Yemen. The term meant that workers should mind their own business, testified Swainston, and he never used the racial epithet. And when he was asked if what he said to Parratino was inappro- priate, Swainston said, "I am sorry if you were sensitive about it. I would apologize." The union grieved the termin- ation and argued that because Swainston wasn't warned about his behaviour in the past (he had a four-day suspension for an un- related matter), it was too harsh a punishment for his comments. Multiple employees com- plained about Swainston in the past, but none of them wanted to go on record, said the mainten- ance foreman. Arbitrator James Casey (backed by board members Wil- liam Armstrong and Graham Mahy) dismissed the grievance. "The city has proven that (Swainston) engaged in an ex- tensive pattern of making racist and discriminatory comments in the workplace. These comments had an extremely negative impact on many of his co-workers. We live in an era where much more is being expected of companies and organizations to eliminate racism and discrimination in our diverse, multicultural workplaces. That also means much more is ex- pected of employees," said Casey. "The city has established that it had just cause for dismissal and there are insufficient mitigating factors to justify a reduction in the penalty." Swainston's lacklustre apology was also cited by the arbitrator. "Frankly, his responses with respect to the 'apology' signifi- cantly heightened rather than lessened concern. At the arbitra- tion, (Swainston) denied making comments that we have found as a fact that he made. He has refused to accept any responsibility for his misconduct," said Casey. Reference: The Corporation of the City of Calgary and the Canadian Union of Public Employees, Local 37. James Casey — arbitrator. Chelsea Sutherland, Rebecca Anderson for the employer. Roxana Jangi for the employee. May 9, 2018. 2018 CarswellAlta 939 < Racial comments pg. 1 "We live in an era where much more is being expected of companies and organizations to eliminate racism and discrimination."

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