HomeMy WebLinkAbout1993-0259.Union.94-05-18
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~ ~. ONTARIO EMPLOYES DE LACOURONNE . --..-...-.------------....
F , CROWN EMPLOYEES DEL 'ONTARIO
d
1111 GRIEVANCE CpMMISSION DE
;.t SETTLEMENT REGLEMf;NT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G lZ8 TELEPHONE/TELEPHONE (476) 326-1388
180 RUE DUNDAS OUEST BUREAU 2700, TORONTO (ONTARIO) MSG lZ8 FACSIMILE/TELI:COPIE (416) 326-1396
259/93
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IN THE MATTER OF AN ARBITRATION
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Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN CUPE (Union Grievance)
Grievor
- and -
The Crown in Right of ontario
(Workers' Compensation Board)
~ Employer
BEFORE: M. Gorsky Vice-Chairperson
P. K1ym Member
M. O'Toole Member
)
FOR THE P. Douglas
GRIEVOR National Representative
Canadian Union of Public Employees
FOR THE E. Baldwin
EMPLOYER Employee Relations Specialist
Workers' Compensation Board
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BEARING: November 25, 1993
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I N T E R I M DEe I s I o N
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This is a Union grievance 1n which the issue between the
part.1es concerns the lnterpn~tat.lon of a eLH Ie 3 04 of the
collectlve agreement, wh:Lch 1.8 as follows
Any d1.sc1plinary warn1.ng ~hall be removed from an
emptoyee's record after two years f t'om the date of
offence, prov:Lded that there have been no s:Lm1.1ar
warnHlgs 1.n that perlud, in WhlC.h event the t1.me for the
3ppllcatlon of tIns sel. tiun shall bi'> counted from the
date of the succeeding warnlng
The pOS1. t.ion of the Onion 1.S that the twu year pen.od prov1.ded
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for 1n art1.cle 3 04 is ( two calendar years, and that 1.t does not
matter whether the employee relyulg on the art1cle was a t 1\\0'0 r k
. dur l.ng any of that. period; all that required that he/she be
1.S 1.S
an employee, and that two calendar years have passed since the date
of the offence that resulted 1.n a discipl1.na.ry wa ri11.~lg wlthout a
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simila1.r warning being issued For e-:ample, 1n accordance wlth the
On10n's subnl1.ss:ton, an employee could rely on the runnlng of t1m(~
under artlcle 3 04 even if he/she was absent from work on sick
leave, unJ.on leave or pursuant to an J.njury for whH-!h he/she was 1n
rece1.pt of Workers' Compensatlon beneflts
In t.he grlevance, dated March 16, 1992, the UnIon ('untrasted
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1.ts V1ew of the meaning of the two year period w~th thdt wlnch It
ascribed to the Employer
They have chosen to ignore the Collective Agreement's
reference to this issue and have stated that th1s [the
removal of the d1scipllnary warning from the employee's
record] L)nly applies if there 1.8 contl.nuous and uninterupted
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employment If a person J. s of f on sl.ck 1 e.3\' eo l' weB then
the clause [accordlng to the Employer] does not apply for the
perlod they were off
The position of the Union wasthat t.he normal meaning of year 15
calendar year
The Employer took the positlan that the two yeal" perlod
represents not two calendar years 'but two yedrs durln~l WhlCh the
employee was "at work " In her reply on behalf of the Employ~r .to
the step ') rnr-"et J, n g held (':>0 Aprll 23, I 9 C) 3, Ms And r(:,a HdgcHl,
.:J
Director, Human Servlces, stated ( Exlublt. 2 )
The lntent of [ a 1;" t ic 1 e 1 04] WtS rehab111tdtlve If
the employee 1S not at work , there lS no up~ortunlty for them
[SlC] to meet the expected standards and demonstrate that
there has [ s 1 cl been "no slmlla1r warn1ngs" 1n two years
Ms Hagan, 1n Exhlbit 2, also referred to other requirements, which
ln her view, had to be met for the art1cle to apply That the
employee relYlng on bhe article also "achleve work perfomance and
behavlour expectatlons" during the two year perlud As the 1ssue
presented to us was llfuited to the difference betwe~n thp parties
as to the meanlng ln the artlcle of "two years, " our decis10n will
be Ilmlted to deci(hng that .Issue We would nute, however, t.hat
the operatlon of artIcle 3 04 .l.S triggered not by a demonstratl:on
of some unst_at l?d level of "work performance and behaviour
expectatlons" but by the employee not having received "simila1l"
warnlngs, " \vhich must. be "discipl1nary" 1n nature
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Both counsel employed the well-known euphemlsm, "sunset
clause., " when referring to article 3 04, and the Board was informed
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that nelther of them had been able to ldentlfy any preVIOUS
decision that dealt wlth the interpretatlon of the tlme frame set
out. In such a "lause
Both counsel rei led on certaln rules wlth respect to the
lnterpretation of collective agreements whIch they endeavoured to
apply to the language of art 3 04
Counsel for the Employer referred us to the text under
"Interpretation .of Collective Agreements, " found ln Brown and
Beatty, Canddian Labour Arrn tratIon (3d Ed ) , at para 4 2000,
p 4-24 1 and para 4 :noo, pp 4-24 :2 4-31
At P 4-24 1, the authors state
Conceptually, the task of interpretlng a collect1.ve
agreement lS no different than that faced by other
adjudicators in applying statutes, pI"I.vate cont.racts and
other authoritative directives, and generally speaking,
arbitrators vi~w and approaLh thelr functlon ln much the
same way (Footnotes omitted)
--
The authors note, at p.4-24 2 I
It has often been stated that the fundamental object ln
construlng .the terms of a l.ollectL\e 3gTeement 15 tu
dJ.scover the intention of the partles who agreed to lt
\ (Footnotes omitted)
Further" ].n para 4 2100, at p 4-25, the authors 1- e fer to the
fact that, in interpreting a provlsion in a collective agreement,
arbitrators are sometimes
faced with a choice between two Ilnguistically permissIble
interpretations, however, arbitrators have been gu ].ded by the
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reasunableness of each poss~ble lnterpretatlun, adnnnistratlve
feasilnl:lty, and which lnterpretatlon would gl.ve rlSp to
anornall.es ( Footnot,es orn1tted)
~vh ere the partles have choscc-n nelt tel UStj ] :In'JUdtJe w h :U~ h would
make thelr meanl.ng I..lear beyond ppradventure - as. lS the cast:: ..t-n
the matter befureus - then arbltrators, Hl much the same way as
judges and other adudlcaturs :lnterpl e>tlng statutes and <-ontrac't8,
w.lll the pdrt n::u ld t' \
sAek to find purpose of a prOV1Slon 1n a
collectlve agreement to employ as d gUlde to 1t8 interpl'etat lUn
Further In para. 4 2100 at p 4-25 of Brown and Beatty, the authors
state
The search for the purpose of a partIcular prOV'lSlon, as
a gUlde to Jts pruper 1nterpretat.lon, 1.S perhaps most
d raIT!a t ica-ll y seen Hl the varlOUS lnterpretatlons placed
~. by arbltrat.ors suc.h phrases "days, " "work days, i.
on as
"work weeK, " "mon,th" and the llke In such diverse
contexts a sentJ. t1 ement t.obe n?a yemen t leave, (lr hollday
pay, and the r:J.ght of the employer to schedule tempo~rary
shifts, arbltrators havp generally assumed-, unless t.here
lS some clear expreSSlon of lntentlon to the cQntrary,
that the word nday" must be taken to refer to a.
"calendar" rather th':ln a "~vorkJ_nIJ" day Conversely, ln
order to glve effect: tu thL 1J1U" po s e undc>l-ly lng tpe
probatlond.ry perlod, arb.1.trat6rs have been of the Vlew
that J_n determinIng whetber arr (~mpluy(~e hds worked the
reqUIsite number of days to cornpl ete hJ,s prbbatlonary
perlod( one should exclude not (,)nly the calendClt, days
when the plant was not 1n .operatlon, but all working days
on WhlCh t.he probatloner did not. actually work
(Footnotes omltted)
The purpose of the article 18 invoked not to change what has
been saId I the parties the culleLtlve <"i'jrel"'ment, but
by Ul to
understand what they have sald Words read by themselves l'n the
abstract furnish lltt.le guidance as t.o tbeJr rnednlng, eSt::ieC'idlly
where a dlctlonary may give many defin1tions of the word It 1S
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necessary, 1n order to derlve the meanlng of the words used .1n dn
artlcle, to connect them with other words or thlngs which express
an ldea
Although it lS accepted that the object of an artlcle 18' a
signiflcant factor 1n asslstlng arbitrators to ascertaln lts
meaning, 1ts object does not eX1st ln a vacuum any more than the
words within lt do So to say that we must flt"St construe the
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words 1n the 11ght of the object requires that object 1':,0 be I
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ascertained 1n some fashion In referring to the ascerta1nment of
the object of a statute, the Supreme Court of Canada- in Glenn v. !
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Schofield, [1928] ') D L R 319, stated, at p 320, that1t to be I
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ascertained from a reading of the stat~te as a whole 1n ltS entlre
context, and then the part1cular section is to be read 1.n light of
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the object Cf E A. Driedger The Construction of statutes <lst i
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Ed ) at p 59
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But for the existence of art 3 04, the Employer could rely on 1
dl.SI_l.pllne I
an employee's disciplinary record to justlfy the lt
invoked on the ~ccasion ofa subsequent incldent Although Brown
and Beatty, 1n para 7 4314, p 7-168, notf! that
Even apart from express provisions 1n the agreement,
arbltrators have on occasion ruled that t.here are limits
as to how far back the employer may go ln an employment
record to justify the disclpl1ne lt lnvoked on the
occasion of the culminating incident ,
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1n context, the 1nclus1on of art 3 04 was intendedt.o 11 Tint how
far back the Employer could go to rely on d1SC1plinary wa.rn1ngs to
support 1ts rellance on .a subseqUt~nt d1scipllnary rt!sp(~nse
ArtlcIe 3 04 furn1shes an =-mpJ oyer.! who has a di8c1pl1na1Y
warning on his/ht!l" record an opportunity to conduct l~1fo / lw r c; elf In
such a manner so that "no slnu.l a r warnlngs" are. S11 ven durlny the
"two years from the date of the offense" referred tJ) 1n the
article" and to, thereby, have that warn1ng removed f rom his /her
d1scipl1nary record ThlS, in ;turn, would .depr1ve the Employer of
the right to rely on the earl1er disclpl1nary warn1ng 1n imposlng
disc.ipl1ne for a subsequent act hav1ng dlSclpll.nary consequences
In Re Kimberly-Clark of Canada Ltd. (1972), 1 LAC (2d) 44
(Lysyk) , the board had to deal \'1Il t h a cLnm by the employpr that a
written to I employee merely docuJlI(."ntat ion of
\van!lng an \vas 3. a
discusslon wlth the grlevor to draw to lus attent10n .1 ts concern
about job performance to Lupush an 1ncent1ve to 1mprove The
warning was said to have been Issued wlthout the purpose of
"buildIng a record " The board went on to' say, at p 48
1n our Vlew the cr1tical feature distlngu1shing a warnlng
which can properly be characterized as dlSC ipl :lnary from other
non-gr1evable) expressions of employer disdpproval 1S that 1n
the case of the former an employee who fails to bring d
grievance may be prejud1ced 1n future proceedings of a
d1sc1plinary nature In the case at hand, as we understand
it, the company has cle~rly taken the position that th~
[ wrl.tt.en warning] was not J.otpnded to be dJ.scipl indry 111 this
sense of est.ablishing a basis for further action By so
cha racter ].2 i n9 t;.he [written wdrningJ and un(-~qu 1 voca 11 y
represent ].ng .it as a non-dlscipl1nary COIOUnlt.at iun, we dre of
the- opinion that the company would bE':' estopped from
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subsequently tendering 1t 1n a-ny future proceedings of a
disciplinary nature that might be taken against the gr1evor
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In referr1ng to the K unher ly-Clark case as standing for t'he
propos~tion that the .lssuance of a let~ter of repr1rnand " J. S
generally consldpred to be an act of dlsClplln(~, " G W Adams (as he
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then was), stated 1n Re Ih ram Wa Heel' & Sons 1,t:d. (1973) , 4 L A C
(2d) 291, at p 293
ThlS docUlnentatlon creates a physlcal record of disL1pllne for
the employee to faCllltate 1 t s subsequent use should this
prove necessary I
Because of the. failure of the parties to .more precisely deflne
the nature of the two year period referred to 1.11 artlcle 3 04, It
has become necessary for us to examine such matters as the
Ii reasonabl eness of each possible interpretation, 1n the 1 J.ght. of
the purpose of the provislon "
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If the llnlon lS correct and the h\lO ye ;:!J"S are two calendar
years, then an employee could be dbsent frolIl work Oil sonH~ fonll of
leave for that perlod, upon the completlun of WhlCh, there be1ng no
similar warn1ng, the d1Sclplu1ary warnlng would have to be removed
from his/her record According to such an interpretation, there
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would be no need for the employee to demonstrate that he/she 1.5
capable of so conducting him/herself 1n a workplace environment
without engaging in conduct that results 1n a "similalr" warnll1g
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It ].s more consistent w1.th th(.~ purpose of the artJ.cle to
requ 1. re the employee to be a.t wurk dur:Log the two year per1.od J.O
orclet" to see whether he/she 1S able to conduct lum/hersp] f .1.1) sllch
a way so as to avold receiv1ng "s1mllar warn1.ngs "
Although we regard as met.aphys lca 11 y lnter~~stln9 the
suggestion made to us by by counsel for the Union, that the per1.od
1S a calendar and not a work related one because an employee, even
when not at wo r k, may commit breaches which would justify
dlSC1.pllnary warn1ngs, we also regard lt as resting somewhat
uncomfortably on the ground and be1.ng 1ncapable of supportlng the
'propos1t,ion put to us Although th(~J:e may be "two 1 Hlgul stlcdll y
permiss1ble interpretations" of article '} 04, the one that would
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rr~qU1.re "two years" to be regarded as two calcndctl" yr.-ars 1.S a less
reasonable one 1.n the light of the purpose of the prOV1S1.0n In
order to 1. nt.erpret the agn~{-~ment as suggested by counsel for the
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Union, the parties would have had to have specif1.cally def1.ned
"year" as as calendar year
The Board recognizes that then~ are diverse contexts 1n which
boards of arb1tratlon have had to consider whether a per1.od of t Hue
1.S a calendar period or some period of work US1.ng the examples
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employed find, (
1n Brown and Beatty WE~ un the special faLts of tJns
case, that they identify a1 srtuation that 1.S ('loser to that
envlsaged ~hen a time frame 18 fuund 111 the ( onLext of probationary
! periods, than when it 1.S found 111 the context of "ent1.tlernent to
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bereavement leave, or hollday pay, Clnd t:he rlght of the c-'>mpJoyr-'r to
schedule temporary shifts "
Counsel for the Employer referred to Re Dart.m..Quth Genera J.
HOsp1tal and Community Health Centre (1982), 3 L A C (3d) 420
(Langille) , where the majority of the bOdrd stated, dt p 424
We agree w1th the general consensus dmong artntrators
tl\dt., thF! words In tJIP <;-':] l"f-'('rnen t. dle to b(c, Lnt{~rp1'et.ed 1_n
Ilght of the1r context and purpose We also agree w1.th
t.he majonty arlntral pOS 1.t lon that wh,-'n Ull-> w()rd "munth"
1S llsed 1n thp context ,f a c1,->srl"lpt.1on of a probat1on:try
pf~rJ.od it 1S t.e 1:"' c-::~ J nt(~rpl"(:~t ed <.is b~)_n'::l worlo ng month
Th1S ObVlousl} ( o.lrlCJ.dr.:s wltb ::lOd advances the purpose of
establish1ng a proba:tlondry perlod at all
We conclude that the term "calendar year, " if dppllPd 1n art1cle
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3 04, would not advance the purpose of furnlshlng an employee w1th
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'. the opportunlty to demonstrate that. h(::>/she can work over 3 perlod
, of time WJ.thout receiving a disciplinary warn1ng
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The majority of the board 1n Dartmouth, at p 424, referred to
Palmer, Collective Agreement Arbitration ln Canada (1978), p 237,
where the author stated, in referring to the meanln<.;J to be glven to
days In the conte>..t of a probdtlonary dltlcle
)
The employer must be able to observe, ~nvestlgate and
assess the E!mploY(:!0 and thlS 1S onl) possl.bl e during
"working days II'
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Given the object of article 3 04, It ~s chfficult to see how
') an employee who 1S not at work can demonstrate that:. he/she 1.8
capable of functioning without commltting a breach that leads to a
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In the Dartmouth case, the ma jon.ty of t,he Board dlso nuted
(at p 424) th,d:. it was necessdry for It
to .read the agreement carefully in order to establish
whether the parties have turned th~lr mInds to the J.SSlle
of the meaning of such words as "day" or "month" 1n a way
that would l.ndlcate th~1t In the artl.C 1 e HI questIon they
Intended the word "month" ought to mean "calendar month "
As in the Dartmouth case, we fInd nothIng In the other
articles In the agreement before us that can be considered, to be
slgn.lflcant merely becaus(:'! t h t~ Y refer to certaIn tJ.me frdmes
Where the agreement attempts to establIsh a tIme frame after whIch
certain disclplinary warnings WI. 1 ] be remeived from an empl oYt~e 's
record, as In the Dartmouth case (at p 425)
we think that It must be interpreted l.n lIght of the
purposes which that perl.od J.S meant to serve
We also note that In the Dartmouth case ( J.blCl. ) th~ board
rejected a minority view that the article should not be Intecpreted
"in a purpOSIve way "
We flnd the references to other articles In thlS agreement as
being unhe Ipfu I, In the sense that In some of them, where the
parties Intended to refer to a calendar year, t.hey did so, as In
article 19 01(2)
In another article <15 OU, reference 18 to a "calendar month
of work "
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It .1S unnecessary to go lnto the other art1cles that were
referred to by counsel, except to state t,hat we found nothing 1n
them that was related to the subject of the removal of d1sc1pllnary
warn1ngs from an employee's record that mlght cause us to depart
from the interpretation we have arr1ved at
It was also suggested to us by counsel for the Union that we
should view the purpose of article 3 04 as belng to allow an
employee wlth a disciplinary warning on his/her record to reflect
on his/her prAvious behaviour uver a per10dof two calend~r years
If in the course of such reflectlon it transpires that no further
slmilar dlsclplinary warnings are rece1ved by the employee, then
) the purpose of the article has been satlsfied Under such an
interpretat_Ion, It would not matter whether the employee was at.
work or not ThIS submission, although interesting, faIled to
persuade us that the purpose was as suggested
Further, 1n the Dartmouth case, ~t p 425, the majority of the
board stated
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[The article before the board] clearly deals with the
promotion of permanent employees It seems clear that a
pel.son who is already a permanent employee may well be
entitled to vacat1on, holiday, or other rlghts to be absent
from the work place which may cOlnclde wIth the probationary
period To not. l.nterpret "month" as mearnng "worklng month"
would then lead to the posslbi11ty that the entire purpose of
a probationary period would be frust_rated should' that.
probationary period coincide with rights of absenteeism
already vested in the empluyee who is promotf!d
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Because art iclA 3 04 deals with a pen.od of years and not one
1nvolv1ng months or days, we are not faced with exactly the same
considerations t.hat were before the board :I.n the Dartmouth case
" [ T ] he (~nt 1 re purpose" of the pe t'lod wltJ-lln which the employee
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could demonstrate the ability to work wlthout lncurrlnSI a slmilar
warn1ng would not be frustrated by Hlclud1ng 1n the two year per.lod
certain pprlods when the employee was not requlrpd to be at \'"ork
Here, the purpose of the article would be realized if the t.wo year
period worked counted periods that are part of normal employment
su\..h as normal days off, vacation, holidays, as well as the days-
off perm1tted for plant average sick leave, bereavement leave and
some types of Union activ1ty time Such allowances would stlll
provide ample time for the purposes of the article to be reallzed
On th~ special facts of the case before us, the twn year. perlod
provided for in art1cle 3 04 1S not m~rely two calendar years, nor
lS it some specif.lc total of hoUrs or days worked
Because the two year period under article 3 04 1S not a two
calendar year period and must be viewed as two working years, as
the month 1n RatiIJl.Q.JJ.th was interpreted as meaning a "working
month, " does not mean that two working years must be equdted w1th
time "actually worked" as was found on the facts of that case, and
we do not have to exclude the same periods of time as were there
excluded Two working years, given the purpose of art1cle 3 04,
.~ would include an employee's regular days off, vacation, holldays,
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sick leave and bereavement leave taken 1n accordance WJ,t.h the
provisions of the collect1ve agreement
From the subml.sslons of counse.) fur the Employer, wp
understood his posltion to be the safill= as t ha t of counsel for the
employer 1n Dartmouth that HI calcu lat lng tbe "sunset" period, we
.-
should exclude "vacation, holiday, or other n.ghts to be absent
from the work place WhlCh may cOlnclde," 1n this case, w1th the two
year period
\
To accede to the interpretation drged on us by counsel for the
Union would frustrate the purpose of artlcle 3 04 To accede to
that presented by counsel for the Employer would Impose a burden on
an employee well in excess of that required to) realize t.he purpose
of the prov1sion.
,
In the absence of clear language in the agreement, and on the
basis of our analysis of the langudge of article 3 04 1n the lIght
of its purpose, we have arr1ved at an interpretation which
represents a mlc1dle ground between the poslt.lons of the pdrt 1(:'3
,
We al so bel ieve our' interpretaion to be the most reasonable of the
possible interpretations, that it will not creat,e problems of
administrative feasibility, and will av01d anomalies
Unfortunately, the parties dld not address the issue of wInch
additional perlods should be treated as belng part of the two year
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perlod, should we find that it was 'not a perlod of two calender
years Before delineating the remainder of the perlods of tlme
that would be considered to be part of the two year period, we wlsh
to hear argument from counsel However, we fll"st wish to glve the
partles an opportunlty to cunslder our lnterlm decislon and to see
if they can arrive at a negotiated list of t),me perlods to be
lncluded in the ~wo year per~od If they are unable to do sn, on
notlflcation from either of them, we will request the Registrar to
set a date for the completion of the hearlng
Although, as has been noted above, the partles lndlcated that
, they were unable to find any cases directly on pOlnt, t:he Board
i
, wishes to refer to the case of Re Robertson B~il?ing Systems Ltd.
'1
(1985), 19 LAC (2d) 427 (H 0 Brown) In that C~3e the board,
\ at p 431, referred to s 6(b) of the appllcable collectlve
',1
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agreement, '''which encompasses the r 19ht of the company tQ establlsh
! ~
rules and set the standa.rd as t.o the test_ of such rules on the
basls of reasonableness " The rule made by the employer that
fell to be considered by the board stated
After a period of SlX munths wlth no recorded offences, all
previous offences of the type set forth above shall be
cancelled anq the employee's record considered clear~
As ln the case before us, the employer argued (at p 429) ,
that the article should be interpreted in accordance with its
1
! and that thlS would be thwarted if six months lay-off
PU1"pOSe a
were included in the period
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15
The company excluded a pen_od of vacat.lon fot- that purpose
as an employee's vacation 1S part of h18 regular employment
provided in the agreement, but where an empluy~e :LS absl:'nt un
a lay-off and not at work, its position 1.S that such a per1.od
should be excluded in view of the pllrposl~ of such a limitat1.on
clause.
Further, at p 429, the board stated
It 1S the company's position that as th~ grlevor was not
at work because of the lay-off, he was not 1.n a position to
cause any of the Jlffh..ultles which mlght be c.olls).dered as dn
offence under the plant rules and therefore the purpose of the
limitatlon clause could not be met by permlttlhg that perlod
of lay-off to benefit the employee 10 that manner
At pp 429~30, the board noted the union's 1:iubrnisSlon that
the plant rules were unilaterally lrnposed by the company
and not directly negoti~ted by the partles, the provis1on does
) not specifically refer to a term of the collect1ve agreement,
other than the acknowledgment of the company's right to
establish such rules ln s 6(b) On that basis It. was algued
that the words used in this sectlon of the plant rules should
be given their ordinary mean1ng so that "six months" means
calendar months Any further refinement or qualificatlon such
as suggested by the company would require the implicatlon that
the language of that, section meant SlX months of work or
active employment It was argued that an employee should have
the right to have such rules applled str+ctly to allow h1m to
[sic] a normal understandlng of what is required of h).m It
was submitted that the company could, In its rules, Whl \..h l.t
developed, have indicated such thngs as "actlve employement"
for a certa.ln time on the job for the purpos'es of the
Ilm1tation, but ln the absence of such qua) lf icat lon, the
board should not read any further restrlctlon 1nto thdt
clause It was submitted that the clause should be given the
meaning apparent on the face of the language used by the
company It was further submitted that the rules should be
reasunable and applied on that basis to all employees. Its
submission 18 that as the company does nnt ehclude a vacation
period for thlS purpose as l.t is part of regular employment,
employees who have been lald off are affected by the exerClse
by the company of l.ts rl.ght 1n the collective d9re~ment and
remain as an employee [SlC] at least untll 12 months have
expired from the date of lay-off, both periods should be
consldered to have the same effect
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At P 431, the board stated
it 1.S the term of the co 11 ect i ve agreement at l.ssue
between the part.ies -wh1.ch must be applied by the board In
/ that regard we have had reference to s 6 of the plant rules
While these rules are established 1.0 accordanbe with s 6(b)
by the company, they are unilaterally establ1.shed by it: for
its own purposes and must, therefore, 1.n our oplnion, be held
to the strlct appllcation of the language it used ln
promulgat.ing th(~ rule, absent evidence of the practice of the
partles j
f
At pI 433, the board stated
~
we flnd that the purpose of such clause has been met,
having regard tQ the meaning to [SH; ] whlch we have ascrlbed
to It set out above
The board in Robertson did not accept that the purpose of the
clause before it was as submitted by the employer This was
because it had been "unilterally established" by the employer "for
its own puroposes." ThlS is not the case In the matter before us
The dissent of the employer's noml.nee In Robertson states (at p
434)
An interpretation which renders the rule of no practIcal
purposIve applIcation In some CIrcumstances lS not a proper
interpretatlon
While the above quotation ffl1ght not be appropriate on the
facts of the Robertson case, where the majorIty of the board
appears to have based its decision on the application of th(~
doctrine of contra preferentum, it is apt to the facts of the case
pefore us where article 3 04 was negotiated between the parties and
forms part of the collective agreement
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The dissent 1n Robertson further states, 1bld.
the interpretation the employer suggested does not requ1re
an amendment it merely requires an lnterpretation that makes
reasonable sense 1n 1 ight of all the circumstances
We were not called upon to int(~rpret a rule that was unilaterally
promulgated by the Employer In the circumstances, we regard what
we have done to be an exercise in interpretation and not one where
we have added to or altered the provisions of the collective
agreement
Dated at Toronto th1S 18th day of May , 1994
-;W.L~
M Gorsky - Vice Chairperson
i1(( 0J~'
P. I\lym - Member
11I7- ())7~ -
M O'Toole - Member
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