Employer breached agreement when it refused to being worker back
A British Columbia employer violated its collective agreement when it refused to allow a worker to return from a leave of absence spent working with the union in a position not specifically spelled out in the agreement as one for which such a leave was permitted.
The worker was employed with Starline Windows, a manufacturer of windows and doors in Surrey, BC. Hired in May 2016, the worker had duties on the company’s paint line and as a first aide attendant, while also serving as a shop steward and, at one point, vice-president of the union local.
An article of the collective agreement granted leave without pay to “any employee elected or appointed as a union officer, or as a delegate to any labour activity, necessitating a leave of absence.” The leave could be for the lesser of a single term of office or three years, subject to renewal by the company.
The article also provided that employees under such a leave of absence would be re-employed by Starline at the end of the leave if such work was available or a soon as such work was available. The union’s constituted defined “officers” as including “business agent.”
Employers looking to dismiss an employee on leave need more than sufficient documentation on the reasons for dismissal, says a lawyer.
Leave of absence request
In September 2021, the worker submitted a request for a leave under the collective agreement for “up to three years as an employed union officer.” Starline granted the request and the union formally offered her the job as an “organizer/assistant business agent.” The job duties were essentially the same as the business agent listed in the union’s constitution but was paid slightly less and reported to the business agent.
Starline issued a record of employment indicating that the worker’s absence was a “leave of absence.”
The worker’s term as an assistant business agent ended on Feb. 28, 2023. Three days later, a vote to decertify the union took place and Starline protested the worker’s right to vote because she was “on the union’s payroll” and it was a conflict of interest.
On March 8, the worker contacted the production manager to notify him that she would be returning from her leave of absence. The manager said she could come back on March 20.
On March 17, the Friday before her return, the worker reminded the production manager about her return in three days, as per the collective agreement. A short time later, the union’s business manager emailed the worker and copied management about her decision to return to the regular workplace.
An Alberta court awarded 22 months’ pay to a senior manager whose position was eliminated while he was on leave.
COO didn’t want worker back
Two hours after the union email, Starline’s chief operating officer (COO) emailed the worker to say that it was her understanding that she had not been an employee of Starline since she was hired by the union to be a business agent. The COO said that the collective agreement did not give her a right to return in those circumstances and she would not be permitted entry to the plant.
The union grieved, arguing that the worker was on an approved leave of absence and she was entitled to return to Starline at the end of her appointment as a union assistant business agent, which should be included in the category of business agent. The union also argued that, in the alternative, Starline led the worker to believe that the leave had been approved under the collective agreement.
Starlin maintained that the worker wasn’t elected or appointed as a union officer because assistant business manager wasn’t listed in the union’s constitution. It also said that the worker misled the company regarding the leave of absence because she knew or ought to have known that the position of assistant business manager was not an established union officer. In the alternative, the worker had no contractual right to return until three years after the start date, said the company.
The arbitrator noted that the purpose of the collective agreement article was to allow bargaining unit members to temporarily work for the union on a limited basis and return to their regular job without a loss of seniority. In this case, the right was specifically for workers to work as a union officer.
Time spent at a union meeting doesn’t count as working hours, an arbitrator ruled.
Position with union covered by leave-of-absence article
The arbitrator found that Starline wanted to exclude the role of assistant business manager not on the basis of the duties performed by rather on the title of the position. The role was essentially “a junior business agent position” and reflected a reduced pay scale and different reporting structure, not duties, said the arbitrator.
“I find that (the position’s title) to be an artificial and irrelevant distinction without meaning in terms of the application of [the collective agreement]; and to exclude an ‘assistant’ business agent from the protections of the [collective agreement] simply because of the job’s title is contrary to the purpose of [it],” said the arbitrator in determining that the worker was on a legitimate leave of absence under the collective agreement.
The arbitrator also found that the worker didn’t have to wait three years to return, as the collective agreement did not contain specific and clear language that restricted such a return to a universal set period and the intention was to limit the length of the leave, not “provide an arbitrary mandatory length of absence.”
Starline was ordered to reinstate the worker retroactively without loss of seniority with compensation for lost wages and benefits. See Starline Windows Ltd. and IABSRI, Shopmen’s Local 712 (Swanky), Re, 2023 CarswellBC 1875.
