October 8, 2009 at 10:30 AM
Produced by Ashley Watkins, Executive Assistant, East, CAW Local 2002
The Legal Facts bulletin for Jazz Technical Services is used to communicate to CAW members an understanding of the types of grievances filed, as well as to describe Arbitrator M. Teplitsky’s orders. Our intention is to post the bulletin on a regular basis. For the sake of privacy, names and certain details have been omitted; the intent of the order has not been changed. This volume of the Jazz Tech. Legal Facts bulletin captures the various types of grievances filed over the approximately, last eighteen months. Going forward, we will issue a Legal Facts bulletin after each Teplitsky review.
Article 19 – Interpretation
Grievance: Management failed to honour the agreement made in LOU 12 section 10 whereby the company failed to train employees.
Decision, February 2009: "The IFE training will occur prior to the end of March 2009 for the 19 employees."
Article 16 – Discipline
Grievance: A member filed a grievance for unjust discipline.
Decision, April 2009: "The fact-finding report discloses that there was workplace harassment of Member X. The member also experienced religious discrimination. These conclusions are not in dispute.
My task is to assess damages for this breach of the Collective Agreement and human rights legislation.
I consider the violations very serious. However, these violations would likely have ended had Member X raised these issues in a timely way. He did not consult his union who would have assisted him in making a formal complaint. His inaction does not excuse the inappropriate conduct. But, Member X had to act reasonably in his own interests. Giving the matter the best consideration I can, I award him damages of X dollars. This shall be paid forthwith without deductions."
Article 10 – Interpretation
Grievance: The Company required a member to transition from night shift to day shift with only 3 days notice. The collective agreement stats, "Fourteen calendar days notice" will be given”.
Decision, February 2009: "Declaration of a breach. Employer is to follow Collective Agreement and give appropriate notice."
Article 16 – Discipline
Grievance: A letter was placed on the members file without his or the union’s knowledge.
Decision February 2009: "Pattern absenteeism is established. Grievance dismissed."
Article 19 – Interpretation
Grievance: Multiple grievances were filed due members who were bypassed for the 705 "M" endorsement course running in YUL from Sept. 10 to Oct. 5 2007. Article 19.10.01 clearly states that such training will be provided in order of classification seniority, subject to certain restrictions and exceptions, none of which have been met in this instance.
Decision, January 2008: "These grievances all raise the same issue. Does the employer have the right to refuse training courses to employees who take training and then refuse to obtain ACA creditation following the training?
The answer, in my respectful opinion, is clear.
Training is provided at the employer’s expense. Unless the employee obtains ACA creditaion, the employer does not receive the benefit or what it is paying for. Equally, the employee does not receive the additional payment certification attracts. It is an implied term of accepting the training that the employee will take the necessary steps to be able to use it at work.
When an employee fails to do so, the employer is justified in refusing to send this employee for additional training."
Article 16 – Discipline
Grievance: Two individual grievances were filed as the members received a written warning on file(s).
Decision, November 2008: The grievors received a written warning for insubordination and refusal to work. The facts disclosed support neither allegation. Rather, the grievors engaged in ‘supervisor shopping’ i.e. having received instructions from one supervisor went to a different supervisor and were successful in receiving a set of instructions which they preferred. "Supervisor shipping" is disciplinable.
However, in this case, the Employer waited two and a half months before imposing discipline after it knew the relevant facts. This period of delay is excessive and undermines the credibility of the discipline process. Accordingly, the written warning will be removed from the grievor’s record. The Employer may issue a letter of expectation (non-discipline) setting out the "no supervisor shopping" rule."
Article 11 – Interpretation
Grievance: The member contends that he made every reasonable effort to notify the Company of his intended absence from work. While shoveling an overnight snowfall to clear his car, the member injured his back. He immediately called sick at that time.
Decision, June 2008: The grievance is allowed. The employee complied with Article 11.05.07 in the circumstances.
The parties have asked for guidance on the utilization of Article 11.05.05. It provides in part that: “Payment of any sick leave may require substantiation through a doctor’s note if required by the Company.” This section grants discretion to the employer to require a doctor’s note. Such discretion must be exercised reasonably.
It is clear that it is reasonable to require substantiation in the following instances:
- The employee has been absent excessively.
- The employee’s record shows pattern absenteeism.
- The absence is for 3 consecutive days or longer."
Article 16 – Discipline
Grievance: Unjust discipline. A member received a written letter for alleged insubordination.
Decision, June 2009: The grievor received a written warning after calling his supervisor a "liar.". The grievor admitted using the word "liar" but said he was joking. He was not joking. He believed the supervisor was a "liar". The grievor apologized. Clearly calling a supervisor a "liar" is inappropriate behaviour which is disciplinable. The penalty was modest. The grievance is dismissed."
Article 16 – Discipline
Grievance: A member received a written warning based on information derived from TRAX.
Decision, June 2009: "The grievor received a written warning for taking too long to complete a task. The problem with the employer’s position is there is no direct evidence either orally or in writing of what the assignment was. Equally, the employer’s complaint that a deadline was missed is not supported by either direct, or oral or written evidence.
The grievor’s explanation is credible.
In these circumstances, the grievance must be allowed."
Article 16 – Discipline
Grievance: Three members were terminated for alleged time theft. The grievance was filed due to unjust discipline.
Decision, January 2008: "I recently heard a grievance involving 3 employees who had "stolen time" from the employer. Theses grievances settled on terms which are confidential. However, I thought it important to bring to the bargaining unit’s attention the consequences which will flow from "theft of time". "Theft of time", in relation to the Kronos system means that an employee swipes another employee’s card before that employee is at work or after that employee has left work. Both the "swiper" and the employee who benefits from the "swipe" are responsible for theft of time.
Theft is a disciplinary offence which ordinarily warrants a summary dismissal. Theft undermines the trust which is at the heart of the employment relationship. Barring exceptional circumstances, arbitral discretion is no exercised in favour of any employee found guilty of a theft. Exceptional circumstances are not made out because the value of the article stolen is small, or the employee is contrite and has admitted the truth, or the employee was "borrowing the article" intending to return it at a future date. The devastating effect of a dismissal on the grievor and his family is also not an exceptional circumstance. Before succumbing to temptation, employee should as themselves whether it is work the loss of their job and the devastation for their spouses, partners and children."
"As well, in the future, rationalizations of wrongdoing or claims of ignorance will not be accepted in mitigation of penalty.
I direct that this award be posted in each workplace system-wide which is subject to Kronos and a copy be placed in each affected employee’s mailbox."
Article 16 – Discipline
Grievance(s): A number of grievances relative to discipline in the form of “written warning(s)” were placed on the member(s) file.
Decision: the majority of the orders state, "In all the circumstances I remove discipline. A letter of Expectation shall be placed on the file." Or "The disciplinary notation is removed from the grievor’s file. There is no breach of Article X.XX" or "Discipline is set aside."
The next "Teplitsky Review" is scheduled for November 24, 2009.
Your Bargaining Committee,
John Murawesky, Bargaining Chairperson
Peter Brown, YYC
Ian Waite, YXU
Ghobud Khorasani, YYZ
Daniel Marion, YUL
Dave Gylland, YHZ
Roberto Lampasona, Tech II
For further information, please contact:
Ashley Watkins, Executive Assistant, East, CAW Local 2002