In Ming Pao v. CEP Local 2000 issued on February 7, 2012 the Labour Relations Board upheld the dismissal of the employer's objection to the certification of press-room employees. While confirming that employees in one continuous work process are included in one bargaining unit, the Board u
Sunday, February 12, 2012
Thursday, February 2, 2012
More Discipline Arbitration Awards-- denials of wrongdoing, failure to show remorse and excessive internet usage
1) FortisBC Energy Inc. v. International Brotherhood of Electrical Workers, Local 213, [2011] B.C.C.A.A.A. No 130 (No. A-086/11)
The grievor was dismissed for having a prostitute in a company vehicle during work time. This case is interesting for its discussion about credibility. As well, the arbitrator commented on the grievor’s ongoing denial of wrong doing and its effect on the employment relationship. Arbitrator Keiras upheld the dismissal.
2) British Columbia Hydro and Power Authority v. International Brotherhood of Electrical Workers, Local 258, [2011] B.C.C.A.A.A. No. 123 (No. A-080/11]
Arbitrator Irene Holden upheld the imposition of an 8 day suspension. The grievor was given a suspension for refusing to do work, instigating a work stoppage, and writing an inaccurate and insubordinate letter about the employer and one of its managers. Some of the issues addressed are: protection of the shop steward when involved in legitimate activities; failure to show remorse; and failure accept responsibility for his role in events.
3) In Health Employers’ Assn. of British Columbia v. Health Sciences Assn. of British Columbia [2011] B.C.C.A.A.A. No. 125 (No. A-083/11) Arbitrator Nick Glass overturned the disimissal of an employee for time theft and excessive internet usage. Some of the issues addressed here: technical problems in determining personal internet use at work; the distinction between time theft and wasting time; the importance of evidence showing the ability of the grievor to change his ways; and the importance of an apology and expressing remorse. In this case, the arbitrator substituted a 15 day suspension for the dismissal.
(notes: these decisions are not yet available on CanLii but are available on QuickLaw; and also, many thanks to Diane MacLean for her contribution)
Estoppel
I'm often asked to explain the doctrine of estoppel and how it applies in the labour relations context. I found this nice quote in University Health Network v. Ontario Nurses Association issued two weeks ago:
54. Both parties referred to the recent Supreme Court of Canada’s recent decision in Nor- Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59 (CanLII), 2011 SCC 59 in which the Supreme Court upheld an arbitrator’s award that had adapted and applied the equitable doctrine of estoppel. The Supreme Court found that labour arbitrators are not legally bound to apply equitable and common law principles, including estoppel, in the same manner as courts of law. Labour arbitrators have a different mission, informed by the particular context of labour relations.
55. The Supreme Court cited Paul C. Weiler’s, (then) Chairman of the British Columbia Labour Relations Board, decision in Re Corporation of the City of Penticton and Canadian Union of Public Employees, Local 608, (1978), 18 L.A.C. (2d) 307 (B.C.L.R.B.), at p. 320 regarding why the doctrine of estoppel must be applied differently in a grievance arbitration than in a court of law:
" ...a collective bargaining relationship is quite a different animal. The union and the employer deal with each other for years and years through successive agreements and renewals. They must deal with a wide variety of problems arising on a day-to day basis across the entire spectrum of employment conditions in the workplace, and often under quite general and ambiguous contract language. By and large, it is the employer which takes the initiative in making operational decisions within the framework of the collective agreement. If the union leadership does not like certain management actions, then it will object to them and will carry a grievance forward about the matter. The other side of that coin is that if management does take action, and the union officials are fully aware of it, and no objection is forthcoming, then the only reasonable inference the employer can draw is that its position is acceptable. Suppose the employer commits itself on that assumption. But the union later on takes a second look and feels that it might have a good argument under the collective agreement, and the union now asks the arbitrator to enforce its strict legal rights for events that have already occurred. It is apparent on it face that it would be inequitable and unfair to permit such a sudden reversal to the detriment of the other side…."
54. Both parties referred to the recent Supreme Court of Canada’s recent decision in Nor- Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59 (CanLII), 2011 SCC 59 in which the Supreme Court upheld an arbitrator’s award that had adapted and applied the equitable doctrine of estoppel. The Supreme Court found that labour arbitrators are not legally bound to apply equitable and common law principles, including estoppel, in the same manner as courts of law. Labour arbitrators have a different mission, informed by the particular context of labour relations.
55. The Supreme Court cited Paul C. Weiler’s, (then) Chairman of the British Columbia Labour Relations Board, decision in Re Corporation of the City of Penticton and Canadian Union of Public Employees, Local 608, (1978), 18 L.A.C. (2d) 307 (B.C.L.R.B.), at p. 320 regarding why the doctrine of estoppel must be applied differently in a grievance arbitration than in a court of law:
" ...a collective bargaining relationship is quite a different animal. The union and the employer deal with each other for years and years through successive agreements and renewals. They must deal with a wide variety of problems arising on a day-to day basis across the entire spectrum of employment conditions in the workplace, and often under quite general and ambiguous contract language. By and large, it is the employer which takes the initiative in making operational decisions within the framework of the collective agreement. If the union leadership does not like certain management actions, then it will object to them and will carry a grievance forward about the matter. The other side of that coin is that if management does take action, and the union officials are fully aware of it, and no objection is forthcoming, then the only reasonable inference the employer can draw is that its position is acceptable. Suppose the employer commits itself on that assumption. But the union later on takes a second look and feels that it might have a good argument under the collective agreement, and the union now asks the arbitrator to enforce its strict legal rights for events that have already occurred. It is apparent on it face that it would be inequitable and unfair to permit such a sudden reversal to the detriment of the other side…."
Wednesday, February 1, 2012
Employer who terminated employees on LTD must pay severance
This summary was prepared by Jim Quail, Legal Director at the Canadian Office and Professional Employees Local 378.
The BC Court of Appeal today issued West Fraser Mills v USWA a decision regarding non-culpable absenteeism and human rights.
The case concerned seven employees who had been on LTD for an extended period. The employer terminated their employment for non-culpable absenteeism, and a while later closed the mill. As a result of the termination the affected employees lost their entitlement to severance arising from the closure.
Arbitrator Emily Burke found that the terminations were motivated by the employer’s closure plans and intended to avoid having to pay the severance. While the terminations per se of the disabled employees would not have violated the Human Rights Code, the deprivation of entitlement to severance transformed them into discrimination on the basis of disability. The arbitration award was issued in October 2010 and is available on CanLii.
The employer appealed to the Court of Appeal (appeals of the general law go to the Court under s. 100 of the Labour Relations code; appeals based on the Labour Code or its principles go to the LRB under s. 99). The Court unanimously upheld the award.
The BC Court of Appeal today issued West Fraser Mills v USWA a decision regarding non-culpable absenteeism and human rights.
The case concerned seven employees who had been on LTD for an extended period. The employer terminated their employment for non-culpable absenteeism, and a while later closed the mill. As a result of the termination the affected employees lost their entitlement to severance arising from the closure.
Arbitrator Emily Burke found that the terminations were motivated by the employer’s closure plans and intended to avoid having to pay the severance. While the terminations per se of the disabled employees would not have violated the Human Rights Code, the deprivation of entitlement to severance transformed them into discrimination on the basis of disability. The arbitration award was issued in October 2010 and is available on CanLii.
The employer appealed to the Court of Appeal (appeals of the general law go to the Court under s. 100 of the Labour Relations code; appeals based on the Labour Code or its principles go to the LRB under s. 99). The Court unanimously upheld the award.
Tuesday, January 31, 2012
Insubordination, profanity, unsafe conduct and workplace negligence and Post Traumatic Stress Disorder--some recent BC arbitration awards on discipline
The following are based on summaries provided by Diane MacLean.
Insubordination
1. Arbitrator John Hall upheld a three day suspension for insubordination in West Fraser Mills Ltd v. Unites Steel Workers [2011] BCCAAA No. 133. The decision appears not to have been posted on CanLii but is available on Quicklaw. The LRB recently dismissed the union's application for review and that ruling is available free.
The decision contains a good discussion on what must be proved in order to establish that a refusal to follow an order amounts to insubordination.
There are three essential components:
1. a clear order understood by the grievor;
2. the order must be given by a person in authority and,
3. the order must be disobeyed.
In this case the grievor refused to follow two direct orders given to him by the charge hand during his shift in a saw mill. The refusal was also accompanied by profanity directed at the charge hand and in a meeting with the supervisor.
The union argued that the charge hand was not a "person in authority" based on the collective agreement definition that set out that a charge hand "can exercise job direction in his work area, all of which shall be relayed to him by supervision." The arbitrator ruled that the definition should not be taken literally and that the clause incorporated a more general delegation of responsibility that included authority to direct when employees will take their lunch breaks.
On the matter of the use of profanity, the arbitrator concurred with evolving jurisprudence that rejects the argument that profanity shouldn't attract discipline because it happens to be "common shop talk" in a particular workplace.
The arbitrator found that the discipline was not excessive in the circumstances.
2. In Teck Coal Ltd (Line Creek Operations) v. IUOE Local 115 Arbitrator Mark Brown upheld the dismissal of a three year employee who was involved in an unprovoked altercation with a co-worker. The grievor had a previous disciplinary record for inappropriate behaviour and insubordination.
Unsafe conduct, workplace negligence
3. In Richmond Steel Recycling v. Ironworkers Local 712 [2011] BCCAAA No. 132 Arbitrator Joan McEwen upheld the termination of an employee who failed to comply with the employer's safety policy requiring any employee working more than six feet off the ground to be "tied off". The grievor was seen standing on a conveyor belt some 20 feet above a concrete surface without being secured.
The union argued that although some form of discipline was warranted, discharge was excessive because there were mitigating circumstances. The union alleged that the policy was unevenly applied and that the employer had discriminated against the grievor based on his age and ethnicity. The arbitrator rejected these arguments. The arbitrator also noted that the grievor did not take responsibility for his conduct thus undercutting the argument that he was amenable to the principles of corrective discipline.
4. In Vitalaire Canada Inc. v. Teamsters Local 213 Arbitrator David McPhillips upheld the termination of a short term employee whose negligence in parking the company truck caused it to roll down a hill and push a parked car into a fence and a shed. The arbitrator did not believe the grievor's evidence that he had engaged the air brakes and turned the wheels appropriately. The arbitrator found that termination was not excessive given that the grievor had been employed for one and half years, that his previous disciplinary record included carelessnes about safety and failure to accept responsibility, and that the consequences of his misconduct were serious. In addition the arbitrator noted that the grievor had not acknowledged any responsibility for the incident.
Non-culpable behaviour and PSTD (Post Traumatic Stress Disorder)
5. Arbitrator Emily Burke's decision in Government of BC (Riverview Hospital) v. BCNU issued on December 8, 2011 is worth a good read. The grievor was a nurse who suffered Post Traumatic Stress Disorder as a result of serving in Afghanistan. While taking five psychiatric patients from Riverview on an outing in a van, the grievor dealt with one of the patients inappropriately. The patient became severely disruptive and rather than seeking assistance, the grievor stopped the vehicle, told the patient to get out and left the patient there.
The Arbitrator concluded that while in the normal course this reckless conduct would warrant discipline, the medical evidence established that the circumstances caused the "grievor to lose significant capacity for rational decision making and ability abiliy to perceive other options." As a result there was no cause for discipline and the termination was overturned.
Insubordination
1. Arbitrator John Hall upheld a three day suspension for insubordination in West Fraser Mills Ltd v. Unites Steel Workers [2011] BCCAAA No. 133. The decision appears not to have been posted on CanLii but is available on Quicklaw. The LRB recently dismissed the union's application for review and that ruling is available free.
The decision contains a good discussion on what must be proved in order to establish that a refusal to follow an order amounts to insubordination.
There are three essential components:
1. a clear order understood by the grievor;
2. the order must be given by a person in authority and,
3. the order must be disobeyed.
In this case the grievor refused to follow two direct orders given to him by the charge hand during his shift in a saw mill. The refusal was also accompanied by profanity directed at the charge hand and in a meeting with the supervisor.
The union argued that the charge hand was not a "person in authority" based on the collective agreement definition that set out that a charge hand "can exercise job direction in his work area, all of which shall be relayed to him by supervision." The arbitrator ruled that the definition should not be taken literally and that the clause incorporated a more general delegation of responsibility that included authority to direct when employees will take their lunch breaks.
On the matter of the use of profanity, the arbitrator concurred with evolving jurisprudence that rejects the argument that profanity shouldn't attract discipline because it happens to be "common shop talk" in a particular workplace.
The arbitrator found that the discipline was not excessive in the circumstances.
2. In Teck Coal Ltd (Line Creek Operations) v. IUOE Local 115 Arbitrator Mark Brown upheld the dismissal of a three year employee who was involved in an unprovoked altercation with a co-worker. The grievor had a previous disciplinary record for inappropriate behaviour and insubordination.
Unsafe conduct, workplace negligence
3. In Richmond Steel Recycling v. Ironworkers Local 712 [2011] BCCAAA No. 132 Arbitrator Joan McEwen upheld the termination of an employee who failed to comply with the employer's safety policy requiring any employee working more than six feet off the ground to be "tied off". The grievor was seen standing on a conveyor belt some 20 feet above a concrete surface without being secured.
The union argued that although some form of discipline was warranted, discharge was excessive because there were mitigating circumstances. The union alleged that the policy was unevenly applied and that the employer had discriminated against the grievor based on his age and ethnicity. The arbitrator rejected these arguments. The arbitrator also noted that the grievor did not take responsibility for his conduct thus undercutting the argument that he was amenable to the principles of corrective discipline.
4. In Vitalaire Canada Inc. v. Teamsters Local 213 Arbitrator David McPhillips upheld the termination of a short term employee whose negligence in parking the company truck caused it to roll down a hill and push a parked car into a fence and a shed. The arbitrator did not believe the grievor's evidence that he had engaged the air brakes and turned the wheels appropriately. The arbitrator found that termination was not excessive given that the grievor had been employed for one and half years, that his previous disciplinary record included carelessnes about safety and failure to accept responsibility, and that the consequences of his misconduct were serious. In addition the arbitrator noted that the grievor had not acknowledged any responsibility for the incident.
Non-culpable behaviour and PSTD (Post Traumatic Stress Disorder)
5. Arbitrator Emily Burke's decision in Government of BC (Riverview Hospital) v. BCNU issued on December 8, 2011 is worth a good read. The grievor was a nurse who suffered Post Traumatic Stress Disorder as a result of serving in Afghanistan. While taking five psychiatric patients from Riverview on an outing in a van, the grievor dealt with one of the patients inappropriately. The patient became severely disruptive and rather than seeking assistance, the grievor stopped the vehicle, told the patient to get out and left the patient there.
The Arbitrator concluded that while in the normal course this reckless conduct would warrant discipline, the medical evidence established that the circumstances caused the "grievor to lose significant capacity for rational decision making and ability abiliy to perceive other options." As a result there was no cause for discipline and the termination was overturned.
Thursday, December 22, 2011
October 2011 BC Arbitration Awards of Note
My colleague Diane MacLean, formerly of the BC Human Rights Tribunal, brought to my attention a number of arbitration awards issued by British Columbia arbitrators during the month of October. I have provided the CanLii link where it is available.
Summit Logistics v. Retail Wholesale Union Local 580, a decision of Arbitrator Mark J. Brown in which he dismissed a union grievance that employees were entitled to both severance and post-retirement benefits when a plant closed. The case contains a discussion of how extrinsic evidence such as bargaining history and past practice can be used in contract interpretation cases. Brown found that while the employees and the union may have believed that they had achieved dual entitlement when they negotiated a stand alone agreement related to the plant closure, such belief was not supported by the express language of the agreement and the extrinsic evidence did not support the existence of mutual intent of the parties. The lesson from this, of course, is to make sure that the language of an agreement is clear and that both parties have the same understanding of what that language means.
Kenny Sekhon Contracting LTd, v. Teamsters Local Union 213 (this decision is not yet available on CanLii, but may obtained through Quicklaw), a decision of Arbitrator Marguerite Jackson, Q.C. issued on October 7, 2011 and dealing with a preliminiry issue of jursidiction under s.104 of the Labour Relations Code. Section 104 of the Code allows either party to refer a matter to expedited aribtration whereby an arbitration must commence within 28 days of referral. However the referral cannot occur until after all of the steps of the grievance procedure (short of aribtration) have been exhausted. This was an employer grievance that the employer had referred to expedited arbitration and the union made a preliminary objection that the arbitrator was without jurisdiction because because the grievance procedure had not been exhausted. The arbitrator agreed (after 3 days of hearing!). This is a good case to understand the strict requirements of s.104.
Communication Energy and Paperworkers' Union, Local 1123 v. Catalyst Paper (Elk Falls Division), a decision of Arbitrator James Dorsey Q.C. issued on October 11, 2011 in which he dismissed a union grievance seeking severance on behalf of five employees who were on WCB when the paper mill closed. The collective agreement provided that severance would be paid when an employee lost her job due to a decision to permanently close the paper mill. The arbitrator concluded that the employement of employees on WCB was not terminated even though the mill closed. They continued to be employees. However, whether or not their employment terminated when they were no longer receiving workers compensation benefits and were then entitled to severance allowance was outside of the scope of that particular grievance.
Telus Communication v. TWU , a decision of Arbitrator John Kinzie issued on October 20, 2011 contains an interesting discussion of damages for negligent misrepresentation and when these will be available.
Prince George Citizen v. CEP Local 2000, a decision of Arbitrator Brown issued October 18, 2011 in which he dismissed a termination grievance. The grievor was terminated for making threats of violence against other employees to the shop steward, being absent from the workplace without authorization, gross insubordination and not checking e-mails. The union denied that threats were made and while conceding that the grievor's conduct was disrepsectful, they argued that termination was excessive. After applying the tests set out in Wm. Scott [1077] 1 Can. L.R.B.R. 1, the arbitrator upheld the termination for three reasons: he had anger management issues and did not accept assistance offered by the employer, he was not a credible witness and any remorse shown at the hearing was self-serving.
Summit Logistics v. Retail Wholesale Union Local 580, a decision of Arbitrator Mark J. Brown in which he dismissed a union grievance that employees were entitled to both severance and post-retirement benefits when a plant closed. The case contains a discussion of how extrinsic evidence such as bargaining history and past practice can be used in contract interpretation cases. Brown found that while the employees and the union may have believed that they had achieved dual entitlement when they negotiated a stand alone agreement related to the plant closure, such belief was not supported by the express language of the agreement and the extrinsic evidence did not support the existence of mutual intent of the parties. The lesson from this, of course, is to make sure that the language of an agreement is clear and that both parties have the same understanding of what that language means.
Kenny Sekhon Contracting LTd, v. Teamsters Local Union 213 (this decision is not yet available on CanLii, but may obtained through Quicklaw), a decision of Arbitrator Marguerite Jackson, Q.C. issued on October 7, 2011 and dealing with a preliminiry issue of jursidiction under s.104 of the Labour Relations Code. Section 104 of the Code allows either party to refer a matter to expedited aribtration whereby an arbitration must commence within 28 days of referral. However the referral cannot occur until after all of the steps of the grievance procedure (short of aribtration) have been exhausted. This was an employer grievance that the employer had referred to expedited arbitration and the union made a preliminary objection that the arbitrator was without jurisdiction because because the grievance procedure had not been exhausted. The arbitrator agreed (after 3 days of hearing!). This is a good case to understand the strict requirements of s.104.
Communication Energy and Paperworkers' Union, Local 1123 v. Catalyst Paper (Elk Falls Division), a decision of Arbitrator James Dorsey Q.C. issued on October 11, 2011 in which he dismissed a union grievance seeking severance on behalf of five employees who were on WCB when the paper mill closed. The collective agreement provided that severance would be paid when an employee lost her job due to a decision to permanently close the paper mill. The arbitrator concluded that the employement of employees on WCB was not terminated even though the mill closed. They continued to be employees. However, whether or not their employment terminated when they were no longer receiving workers compensation benefits and were then entitled to severance allowance was outside of the scope of that particular grievance.
Telus Communication v. TWU , a decision of Arbitrator John Kinzie issued on October 20, 2011 contains an interesting discussion of damages for negligent misrepresentation and when these will be available.
Prince George Citizen v. CEP Local 2000, a decision of Arbitrator Brown issued October 18, 2011 in which he dismissed a termination grievance. The grievor was terminated for making threats of violence against other employees to the shop steward, being absent from the workplace without authorization, gross insubordination and not checking e-mails. The union denied that threats were made and while conceding that the grievor's conduct was disrepsectful, they argued that termination was excessive. After applying the tests set out in Wm. Scott [1077] 1 Can. L.R.B.R. 1, the arbitrator upheld the termination for three reasons: he had anger management issues and did not accept assistance offered by the employer, he was not a credible witness and any remorse shown at the hearing was self-serving.
Sunday, December 11, 2011
Summaries of British Columbia Arbitration Awards issued in October
The following summaries are provided by Diane MacLean. For ease of reference I have added the links to CanLii and suggested why you might want to read them:
The first, Summit Logistics Inc v. Retail Wholesale Union, Local 580, a decision by Arbitrator Mark is a good example of why it is so very important for both parties to a collective agreement to be very clear about what they have agreed to
Date: October 3, 2011
Arbitrator: Mark J. Brown
Grievance: Severance/Retirement Policy (grievance dismissed)
Summary
This arbitration was about whether an employee can receive both severance and post-retirement benefits upon a plant closure.
The employer provided distribution services for Canada Safeway. In August 2010, Canada Safeway awarded its distribution services contract to competitor of the employer and the employer announced that it would be closing effective February 28, 2011. The employer then provided notice of termination to the bargaining unit employees by one of three letters reflecting three possible termination dates. The union and the employer then took part in discussions as provided for under s. 54 of the Labour Relations Code. The union filed three grievances claiming: a) special severance; b) for employees taking early retirement, both severance pay and post-retirement benefits (“Sev/Rev” grievance); and c) vested retirement benefits. The s. 54 discussions resulted in two agreements, one of which was referred to as the “Stand-Alone Agreement” (SAA).
The “Sev/Rev” grievance was initially heard in December 2010 and resulted in an award finding the following: a) that the collective agreement did not confer an entitlement to both severance and post-retirement benefits upon a closure and b) that the SAA itself conferred an entitlement to both severance and post-retirement benefits for employees taking early retirement in the context of a closure.
The employer applied to the B.C. Labour Relations Board for a review of this decision under S. 99 and it found that the arbitrator had denied the employer a fair hearing. The grievance was remitted back to the arbitrator to determine whether he had the jurisdiction to determine whether the SAA conferred the benefits in issue and, if so, the proper interpretation of the agreement following a hearing and argument. The employer also applied for a reconsideration of the S. 99 decision which upheld the S. 99 decision. The arbitrator considered these issues and found that the interpretation of the SAA was not within the scope of the Sev/Rev grievance so he could not make a finding on whether that agreement created an entitlement to both severance and post retirement benefits. Then, the union filed this present grievance under the SAA alleging that the employer’s failure to pay both severance pay and post-retirement benefits was a breach of the “Stand-Alone Agreement”.
In addition to the documents that constituted the collective agreement, two representatives of the parties, who had been present when the SAA was negotiated, testified at the arbitration. The union representative testified that the dual entitlement issue had been raised early in the discussions. He also testified that after the SAA had been signed, he phoned the employer representative stating that he would be telling people that the SAA conferred retiree benefits (not sure if the arbitrator actually meant severance pay) to all employees and if the employer’s representative did not agree, he should call him back. He testified that the employer representative never called him back. The union representative “agreed in cross-examination that he never said to the Employer in discussions that the language gave them dual benefits. He stated he advised his committee but then said to the Employer it was very good language on the bridge” (this referred to using unused sick leave as a retirement bridge).
The employer’s representative testified that dual benefits were not discussed in the context of the section of the SAA granting the bridge. He also said that the union representative left a message, but it was simply a message to call him. He asked another employee representative to call him back.
The arbitrator stated that the onus is on the union to establish that the parties agreed to a dual entitlement. This would be established either by the language of the collective agreement itself or in conjunction with extrinsic evidence such as past practice or bargaining history.
In regard to the SAA, the arbitrator said:
The Union has not pointed me to any specific language in the Stand Alone Agreement that it says expressly provides for a dual benefit [entitlement?] to severance and retirement benefits.
I conclude that the August 16th letters to employees do not contain a representation that employees will receive both severance and retirement benefits. The letter notes the employee “must continue to work up to the end of your last scheduled shift in order to qualify for severance”. It goes [on?] to note that “Employees who resign, retire or are discharged for cause prior to their final scheduled shift will not receive severance.
While an employee may have read the letter and assumed that if they retired on their final shift, as opposed to prior to their final shift, they would be entitled to severance, the parties did not agree with that conclusion based on the conduct. It is clear based on discussions during the Stand Alone Agreement discussions that the parties were at odds on this matter.
The arbitrator then considered the extrinsic evidence provided by the parties. The arbitrator referred to the discussion of extrinsic evidence in Coquitlam School District 43 v. Coquitlam Teachers’ Assn., [1993]B.C.C.A.A.A. No. 360, in particular that:
…it is the language selected by the parties that dominates in any disputed interpretation and that any departure from the apparent meaning of the language requires “very persuasive and unequivocal parole evidence”…
…
It is only where extrinsic evidence discloses mutuality between the parties with respect to a particular meaning inconsistent with the written language that “a bona fide doubt” will arise about what the parties meant in their selection of language which appears clear on its face…
While the arbitrator agreed that severance payments and retiree benefits can be combined by agreement and that the parties had expressly agreed to do so in the past, he did not view it as a “past practice” as the term is used in arbitral jurisprudence, just that the concept was not new to these parties.
The arbitrator concluded that the intrinsic evidence was not helpful and that while the employees and union may have believed that they had achieved the dual entitlement, without express language, the grievance must be dismissed.
The first, Summit Logistics Inc v. Retail Wholesale Union, Local 580, a decision by Arbitrator Mark is a good example of why it is so very important for both parties to a collective agreement to be very clear about what they have agreed to
Date: October 3, 2011
Arbitrator: Mark J. Brown
Grievance: Severance/Retirement Policy (grievance dismissed)
Summary
This arbitration was about whether an employee can receive both severance and post-retirement benefits upon a plant closure.
The employer provided distribution services for Canada Safeway. In August 2010, Canada Safeway awarded its distribution services contract to competitor of the employer and the employer announced that it would be closing effective February 28, 2011. The employer then provided notice of termination to the bargaining unit employees by one of three letters reflecting three possible termination dates. The union and the employer then took part in discussions as provided for under s. 54 of the Labour Relations Code. The union filed three grievances claiming: a) special severance; b) for employees taking early retirement, both severance pay and post-retirement benefits (“Sev/Rev” grievance); and c) vested retirement benefits. The s. 54 discussions resulted in two agreements, one of which was referred to as the “Stand-Alone Agreement” (SAA).
The “Sev/Rev” grievance was initially heard in December 2010 and resulted in an award finding the following: a) that the collective agreement did not confer an entitlement to both severance and post-retirement benefits upon a closure and b) that the SAA itself conferred an entitlement to both severance and post-retirement benefits for employees taking early retirement in the context of a closure.
The employer applied to the B.C. Labour Relations Board for a review of this decision under S. 99 and it found that the arbitrator had denied the employer a fair hearing. The grievance was remitted back to the arbitrator to determine whether he had the jurisdiction to determine whether the SAA conferred the benefits in issue and, if so, the proper interpretation of the agreement following a hearing and argument. The employer also applied for a reconsideration of the S. 99 decision which upheld the S. 99 decision. The arbitrator considered these issues and found that the interpretation of the SAA was not within the scope of the Sev/Rev grievance so he could not make a finding on whether that agreement created an entitlement to both severance and post retirement benefits. Then, the union filed this present grievance under the SAA alleging that the employer’s failure to pay both severance pay and post-retirement benefits was a breach of the “Stand-Alone Agreement”.
In addition to the documents that constituted the collective agreement, two representatives of the parties, who had been present when the SAA was negotiated, testified at the arbitration. The union representative testified that the dual entitlement issue had been raised early in the discussions. He also testified that after the SAA had been signed, he phoned the employer representative stating that he would be telling people that the SAA conferred retiree benefits (not sure if the arbitrator actually meant severance pay) to all employees and if the employer’s representative did not agree, he should call him back. He testified that the employer representative never called him back. The union representative “agreed in cross-examination that he never said to the Employer in discussions that the language gave them dual benefits. He stated he advised his committee but then said to the Employer it was very good language on the bridge” (this referred to using unused sick leave as a retirement bridge).
The employer’s representative testified that dual benefits were not discussed in the context of the section of the SAA granting the bridge. He also said that the union representative left a message, but it was simply a message to call him. He asked another employee representative to call him back.
The arbitrator stated that the onus is on the union to establish that the parties agreed to a dual entitlement. This would be established either by the language of the collective agreement itself or in conjunction with extrinsic evidence such as past practice or bargaining history.
In regard to the SAA, the arbitrator said:
The Union has not pointed me to any specific language in the Stand Alone Agreement that it says expressly provides for a dual benefit [entitlement?] to severance and retirement benefits.
I conclude that the August 16th letters to employees do not contain a representation that employees will receive both severance and retirement benefits. The letter notes the employee “must continue to work up to the end of your last scheduled shift in order to qualify for severance”. It goes [on?] to note that “Employees who resign, retire or are discharged for cause prior to their final scheduled shift will not receive severance.
While an employee may have read the letter and assumed that if they retired on their final shift, as opposed to prior to their final shift, they would be entitled to severance, the parties did not agree with that conclusion based on the conduct. It is clear based on discussions during the Stand Alone Agreement discussions that the parties were at odds on this matter.
The arbitrator then considered the extrinsic evidence provided by the parties. The arbitrator referred to the discussion of extrinsic evidence in Coquitlam School District 43 v. Coquitlam Teachers’ Assn., [1993]B.C.C.A.A.A. No. 360, in particular that:
…it is the language selected by the parties that dominates in any disputed interpretation and that any departure from the apparent meaning of the language requires “very persuasive and unequivocal parole evidence”…
…
It is only where extrinsic evidence discloses mutuality between the parties with respect to a particular meaning inconsistent with the written language that “a bona fide doubt” will arise about what the parties meant in their selection of language which appears clear on its face…
While the arbitrator agreed that severance payments and retiree benefits can be combined by agreement and that the parties had expressly agreed to do so in the past, he did not view it as a “past practice” as the term is used in arbitral jurisprudence, just that the concept was not new to these parties.
The arbitrator concluded that the intrinsic evidence was not helpful and that while the employees and union may have believed that they had achieved the dual entitlement, without express language, the grievance must be dismissed.
Subscribe to:
Posts (Atom)