Introduction
The grievance at hand concerns Johnny Seemelater (“the Grievor”), which is filed by the Union on his behalf. The grievance alleges that the Grievor was terminated unjustly from his employment with IBCT (the Employer”) effective May 6, 2021. He was terminated pursuant to Article 11.05 (h) of the Collective Agreement. The Grievor’s reinstatement back to his employment position is the pursued remedy in this case.
Both parties agree that I, as an arbitrator, be properly appointed under the terms of the Collective Agreement and that I have the jurisdiction to render the final and a binding determination of the case. The powers of the arbitrator are drawn from the case law Port Arthur Shipbuilding v. Arthurs et al 1968 CanLII 29 (SCC), [1969] S.C.R 85. Furthermore, the parties agree that I would adopt the expedited median-arbitration model of adjunction, as described in s. 50 of the Labour Relations Act, and in the interest of every party to have this matter to a resolution that is early enough and equitable and witho0ut undue formality. Each of the parties had the opportunity to elaborate fully its respective positions, based on all evidence regarding the matter at hand, and make submissions.
Issue
The issue at hand is to determine whether the termination of the Grievor violated the Collective Agreement. The following Collective Agreement provisions are pertinent to this matter and the determination of the grievance at hand:
Article 10- Arbitration
10.02. The arbitrator shall not have the authority to make any decision that is contrary to or inconsistent with the provision that contradict this Agreement’s provisions. He or she shall not have the authority to delete, add, amend, or modify any part of the Agreement.
Article 11- Seniority and assignment of Work Terms
11.03- The seniority of an employee shall be rendered lost and the employee shall be considered terminated if he or she:
(g) is for more than 10% absent from his work scheduled working days in a year, pursuant to Articles 13.01 and 14.01 or bereavement, serious sickness. Apart from the above, this article is not intended to condone unexcused or patterned absences and failure to show up in duty.
It is important to note that Article 13.01 concerns the general leave from duty as allowed and Article 14.02 concerns employees absence due to parental leave, pregnancy leave, family medical leave, and emergency leave as provided under the Employment Standards Act of Ontario.
Facts of the Matter
IBCT is a private company located in Montreal, Ontario, which provides private security to companies, organizations, individuals, public premises, government establishments, and other facilities across the province. The company employs guards and stewards among other professionals to help provide security to the establishments and individuals. Johnny Seemelater is 4.5-year employee with 2 verbal warnings on his file, with the last one issued on Thursday April 2, 2021 for coming to work late without calling. Johnny is also a Union Shop Steward and was one of the Union representatives at collective bargaining three years ago. On May 6, 2021, the Company terminated Johnny as a result of his no show for work for three consecutive work days- Friday April 30, Monday May 3, and Tuesday May 4. Johnny did not call the company while absent for the three days and did not provide any indication of his absence from work.
IBCT wrote Johnny a letter of termination informing him that it was aware that he was on an unauthorized leave of absence and had failed to report for duty as scheduled for three consecutive work days. The company had previously sent Johnny a correspondence via registered mail on May 4, 2021. However, he failed to respond and failed to contact the employer as requested in the said letter. Therefore, the company quoted Article 10, s. 1(v) of the Collective Agreement. This section states that an employee shall lose his or her seniority and the employment terminated for any of the specific reason. The conditions are when the employee is absent from work for three consecutive work days without notifying the company. Based on this provision, the company ended the letter by informing him that his unauthorized absence from duty was deemed as abandonment and therefore his employment with the company was terminated effective May 6, 2021.
Upon the termination, Johnny called the Union informing them of the termination. In response, the Union wrote a statement indicating their grievances on the behalf of Johnny. The grievance states that Johnny received his letters on May 10, 2021 and immediately called their office. It stated that the employee had been terminated unjustly because the company had violated the Collective Bargain and demanded that Johnny be reinstated immediately and made whole.
Positions Taken
Position of the Company (employer)
The company responded and made its response regarding the matter. In the response, the company stated that its position was that a Collective Agreement was a binding document between the Union and the Company. Therefore, the language of the collective agreement must always mean what it states.
The Employer takes the position that Johnny has been employed for a number of years and knows or ought to know the contents of the collective agreement, because he helped bargain the contents. IBCT further argues that Johnny has been involved in disciplinary and termination meetings that specifically dealt with the provisions of Article 10. The company argues that the Grievor at all time and in all meetings did not explain his reasons for being absent, missing work, or why he did not call, and he is not remorseful. Rather than calling the Employer on May 10, Johnny called the Union instead.
The Employer argues that the Grievor takes no responsibility for his actions and believes he is entitled to do whatever he wants and whenever he wants. The company also argues that Johnny behaves as if the rules of the workplace do not apply to him. Moreover, the company argues that as a Union representative, his conduct is held to a higher standard. In this case, Johnnie cannot abuse his office to subvert the Employer rules, policies or the collective agreement. In addition, IBCT argues the collective agreement was bargained and agreed to by the Parties. The language must mean what the Parties intended and the language must be adhered to.
Position of the Union
Based on this position, the grievance by the Union was denied by the employer, which then prompted the Union to bring the matter before the Arbitrator. The Union states that Johnny received his letters on May 10, 2021 and immediately called their office. It stated that the employee had been terminated unjustly because the company had violated the Collective Bargain and demanded that Johnny be reinstated immediately and made whole.
Discussion and Decision
I will start by observing that this case raises no debate about the legal principles that need be applied. In this case, both parties have agreed that the Collective Agreement must be read as a whole, duly applied, and that the meaning of the language used be considered. Moreover, both parties agree that the Collective Agreement, as discussed by them and written down, be the chief document from which the decision is to be made.
It is worth noting that this matter regards a collective agreement and not a commercial contract of a kind. The agreement is a living document that flows from a long-term collective bargaining process that has been updated regularly to conform to the existing laws and regulations of both Ontario and Canada. In an ideal world, parties seeking to develop a common agreement or contract will pay attention to the meanings of the language and words used. Such a document can have the meaning narrowed down or controlled by the use of one word rather than another or through an arrangement of words in a logical manner.
There is always a high level of attention to the language details as they will be seeking to achieve a clear, simple, and direct manner of expression. Such parties will take time to ensure that the expression is internally consistent and coherent and avoiding any unnecessary or meaningless words or language without a proper definition. Based on this view, it is clear that the parties involved cannot seek to add, modify, or amend anything to the said agreement without considering the words used and how they can comport with the meaning already in the document.
Nevertheless, such situations do not exist in the realm world. This is the reason why the Arbitrator agrees that the current collective agreement, as it stands, is not a model of clarity as well as consistence. The arbitrator, like judges, will give content to the obligations of both parties by reference to the words they used in the agreement as well as citation of the relevant laws in Ontario and Canada.
That said, it is importantr to consider the legal questions that one should be investigating ion this case. Specifically, the question is about what can be said of the words that the two parties used in the agreement under Article 11.03 (a) (Randazzo, 2016). It is also important to consider what both parties intend the term “three consecutive work days” to mean “following each other” (Wearing, 2019). First, the arbitrator note that under this article, the parties intended to mean that absence from duty without due notification to the employer for three consecutive work days means that the days must follow each other. In this case, such days could be within a week or staggered in two different weeks provided that they follow each other in a line. It could be a Friday, Monday, and Tuesday in such a pattern.
It should be noted that the agreement in the province allow employees to be absent from work even without explanation for a minimum period per year. In this case, Article 13.01 of the Agreement states that the employee is absent for more than 10% from his work scheduled working days in a year (Randazzo, 2016). By calculation, the arbitrator finds that Johnny’s absence is less than this threshold. Indeed, the year has about 260 work days, assuming that the holidays are inclusive, which means that 10% of this figure will be about 26 days. Johnny has only been out of the work for around 6 days, which is far below the threshold of 10%. Therefore, the Counsel finds that the employer has violated this article of the agreement as it can be drawn from McKinley v. B.C. Telephone.
Having this in mind, it is necessary to consider what the laws of Ontario and Canada say about this matter. When an employee has to start leave prior to advising the employer, then that employee must advise the employer of the matter as soon as possible after it begins (Labour Relations Act, 1995). Quite clearly, Johnny has violated this law, which is also instituted in the agreement between the Union and the employer. Johnny was aware of his responsibility to inform the employer of his absence on the first day of failure to report. In addition, Johnny is not a layman when it comes to this matter. Indeed, he is an official of the Union and was involved in the negotiations. Therefore, he is a part and parcel of the agreement and what it states about this matter. Failure to report or notify the employer, including his failure to respond to the correspondence sent to him vial mail, makes one suspect that he was just arrogant rather than ignorant.
Based on these facts, the Counsel finds it important that Johnny grievance is valid. It is advisable here that the company consider reinstatement as an award to Johnny, given that he has not been absent for more than 10% of the total workdays in a year as required by the agreement. On the contrary, the company requires compensation for the loss it underwent due to Johnny’s absence (Dayco (Canada) Ltd. v. CAW-Canada). Therefore, Johnny need to compensate the company by working for extra hours to cover up the amount of time he was away. Alternatively, the company should count the number of hours he was absent and consider the amount of money it lost and then deduct the figure from his salary.
References
Dayco (Canada) Ltd. v. CAW-Canada, 1993 CanLII 144 (SCC), [1993] 2 SCR 230. Web.
Labour Relations Act, 1995, s. 48(17). Web.
McKinley v. B.C. Telephone, 2001 SCC 38 (CanLII), [2001] 2 S.C.R. 161. Web.
Port Arthur Shipbuilding v. Arthurs et al 1968 CanLII 29 (SCC), [1969] S.C.R 85. Web.
Randazzo, D. P. (2016). Annotated Ontario Labour Relations Act. Thomas Reuters Canada.
Wearing, P. (2019). Employment and labour law toolbox, 2/e: What Ontario employers need to know. Irwin Law.