Arbitrator decries 'unilaterally imposed workplace rule'
During the Christmas period, a Fort McMurray, Alta. mining camp commonly shut down and temporarily laid off employees working in the camp’s kitchen.
When Wadii Ben Said failed to respond to numerous phone calls in Jan. 2015, the employer, Compass Group Canada, terminated him for refusing a recall to work.
Ben Said — who had worked for the company since Jan. 15, 2013 — spoke with Prakash Uthirapathy, manager of the Chelsea division lodge, about the layoff scheduled on Dec. 23, 2014. He and his wife were planning on a vacation and wanted to take the time off via a voluntary layoff.
They each signed a voluntary layoff form that would protect their seniority rights during the Christmas time off, but the form said a worker: “may be recalled at any time by (the employer) to meet their commitment.”
On the form, Ben Said filled out the space for phone numbers and wrote down an email address under his contact information.
The couple said they were also assured during the meeting that there would be no recall at the Chelsea lodge until Jan. 28, 2015. But Uthirapathy testified he was too busy during that meeting to offer such an assurance and he said he couldn’t arbitrarily overrule layoff conventions there were stipulated in the collective agreement.
“How can I give a guarantee to somebody? It’s absolutely not possible,” said Uthirapathy, explaining the recall procedures are triggered when the mine needed more food-service workers.
Uthirapathy said the Ben Saids could have submitted a vacation request form, which would have allowed them to take a vacation without incurring any issues.
They left for Mexico on Jan. 2, and returned on Jan. 16.
But the mine returned to full operation in early January and Kevin Stead, food services manager, called the home phone number on Jan. 6 and 7, and left voice-mail messages advising them to return .
Another manager left a final message on Jan. 9, advising a return call by 5 p.m. on Jan. 10, or Ben Said would be terminated.
On Jan. 12, a voluntary resignation form was sent to the union, Unite Here Canada, advising them Ben Said had effectively resigned.
They couple returned to their Calgary home on Jan. 16 and listened to the messages. Ben Said immediately called Uthirapathy but after a few days of discussion with the human resources department, the decision to terminate did not change.
The union grieved the dismissal on March 16.
Arbitrator Jan Smith upheld the grievance and ordered Ben Said reinstated with full back pay.
“Ben Said lost his job as a result of his failure to meet the requirements of the employer’s recall protocol — a unilaterally imposed workplace rule. I have concluded that without sufficient evidence of the scope and application of the rule and the notoriety of the consequences for its breach — coupled with the ambiguities set out in the employer’s voluntary layoff form — the current recall protocol is not reasonable in all of the circumstances.”
The fact that the employer did not send an email even though it had a spot to fill it out in the form Ben Said “had a reasonable excuse for his failure to respond to Uthirapathy’s telephone messages,” said Smith.
The collective agreement should be amended to clarify the layoff and recall procedures, according to Smith.
“Uthirapathy testified that the recall protocol normally allows a laid off employee three days to respond; it would have been helpful to have been provided with additional evidence to establish when the protocol was created; how the union and its members were advised of the protocol; when the three-day ‘norm’ starts to run; when, if or upon what basis a failure to meet the three-day guideline would be excused; or, what the consequences of that failure would entail.”
Reference: Compass Group Canada and United Here, Local 47. Jan Smith — arbitrator. Joyce Mitchell for the employer. David Mercer for the employee. March 23, 2017.
