Halifax transit worker wins scheduling grievance
A transit worker in Halifax won his case against the city after a confusing policy left parttimers out of certain shifts.
Gary Arnott, a part-time employee in the transportation department of the Halifax Regional Municipality, filed a grievance after his employer changed its long practice of having parttime workers replace full-time workers.
Under the city’s new rules, Arnott was not called on to fill in for shifts left open by full-time employees taking time off for sickness, vacation and the like. Arnott’s part-time position was created back in the early 1990s, as the employer testified, to settle a grievance regarding a manager performing bargaining unit work.
He was required to work two shifts per week, or if a full-time worker was absent. However, the duties of the part-time position were only loosely referenced in the collective agreement.
Both parties agreed that automatically calling Arnott into work when a fulltimer was absent was the result of operational necessity, as opposed to a requirement. During the most recent round of negotiations, there was discussion regarding Arnott’s position but because neither party could come to a satisfactory agreement, it left the confusing clause unchanged — bad grammar and all. It read: “When the part-time employee is required to fill in for absenteeism of full-time employees, (including sicknesses, vacations, or easement leaves, union business, etc.).
The part-time employee will work the same shift as the ab- sent employee.” So when Arnott was not called in to cover a shift that he other- wise would have, he filed a grievance alongside his union, the Amalgamated Transit Union Local 508.
According to the union, the collective agreement was ambiguous; it was composed of two incomplete sentences that necessitated an explanation. Editorial faux pas aside, the union said the intent of the provision was clear, and past practice further fortified the argument.
But the employer said the article was not ambiguous at all. That the clause required some explanation fit within management’s general power to manage the workforce, counsel argued. A clear expression of intent, especially one that spawns a financial benefit, would therefore be unequivocally expressed.
Seeing as how this one was not, the employer maintained it held the jurisdiction to bend as it saw fit. In his decision, arbitrator William Kydd sought to determine whether the city had the discretion to determine whether the part-timer should be called in to replace an absent full-timer. The clause, though an incoherent one, did not expressly give the employer the ability to determine whether a call-in was necessary or not, it simply said Arnott would be called in automatically.
The city therefore violated the collective agreement and Arnott should be made whole for lost wages on that particular night. Kydd also determined this to be a continuing grievance, and applied the ruling to any other similar instances 15 days prior to the night that prompted this case up until the hearing date.
Reference: Halifax Regional Municipality and the Amalgamated Transit Union (ATU) Local 508. William Kydd — arbitrator. David Greener for the employer, Kim Turner for the union. Feb. 9, 2015.
