Casual employee has rights under collective agreement

The union grieved.

L.V. began working at Seaview Manor, a long-term care facility in Glace Bay, N.S., in 2008. She worked about 40 hours per week. L.V. paid union dues and was on a seniority list.

Following surgery to her arm, L.V. was unavailable for work for a period of time over the summer of 2011. On Oct. 18, 2011, L.V. received a letter from the employer informing her she was being removed from the casual call list effective immediately.

The union grieved the de facto termination. However, the parties were unable to resolve the grievance and when the case came before the arbitration board, the employer raised a preliminary objection to the grievance, arguing L.V. did not have access to the grievance process or have the right to grieve because she was a casual employee.

The employer said the collective agreement clearly reflected the parties’ understanding there were different categories of employees.

The employer said collective agreement rights for casual employees were limited to only those clauses where they were expressly recognized as “employees” for the purposes of the collective agreement.

The employer said collective agreements commonly provide different benefits and standards to different categories of employees.

For example, it was well understood that probationary employees could not expect the same protections under the collective agreement as permanent employees, the employer said.

The employer said its bargaining history with the union showed the parties had attempted to clarify what rights and benefits were available to casual employees under the collective agreement. The solution arrived at by the parties made it clear casual employees were entitled to only those rights under the collective agreement where it was expressly stated.

The employer said collective bargaining involved making choices about how to divide and distribute limited resources. In that context, clear choices had been made to focus on protecting and administering the rights of permanent employees over devoting resources to casual employees who have a lesser commitment and connection to the workplace.

The union said L.V. was a dues-paying member of the union who regularly worked 80 hours every two weeks. The union never intended to bargain away the rights of casual employees to use the grievance process. If the union had meant to do that, the contract would say so. It did not.

Moreover, the fact the employer had participated in the earlier stages of L.V.’s grievance — according to the process laid out in the collective agreement — belied the employer’s position that it did not acknowledge L.V.’s right to grieve, the union said.

L.V. did have the right to grieve, the arbitration board said.

Notwithstanding the apparent intent to apply different meanings to the word “employee” in the contract, and the employer’s attempt to contain the rights of casuals to the places in the contract where the casuals were specifically acknowledged as “employees,” context was critical, the board said.

For example, if casuals were not generally considered to be employees except where expressly acknowledged, then the employer’s authority over casuals through the management’s rights clause in the collective agreement, which makes no reference to “casual employees,” would not apply to casuals, the board said.

Similarly, the disciplinary provisions in the contract also only referred to “Employees” with no specific provision for casuals.

There were many other examples of similar inconsistencies.

It was clear, the board said, that the clause in the contract that sought to exclude casuals was not intended to be definitive.

Another problem, the board said, was that the employer’s attempt to deny a procedural right to grieve a “difference” under the collective agreement — permissible in other jurisdictions — went against the grain of the law in Nova Scotia.

Moreover, the board said, even accepting that unions and employers may bargain to restrict the rights of some classes of employees does not mean that the parties can also bargain away the rights of those employees to grieve the rights that they do have. That would violate the basic principle that there cannot be a right without a remedy.

The board also disagreed with the employer’s blanket characterization that casual employees deserved less protection and attention under the collective agreement because of their diminished attachment to the workplace.

That might be true for some kinds of casual labour, but that was not the case here.

Long-term care facilities use casual labour to meet their obligations to provide round-the-clock care. The boardsaid it was clearly in the interests of both parties to acknowledge and administer the rights of casuals under the collective agreement — and the seniority list maintained for casuals underscored that fact.

The board acknowledged the history of the attempts of the parties in this case to grapple with the nature and scope of the rights of casuals under the collective agreement.

It was instructive, the board said, that the earlier cases focused on the rights of casuals to monetary benefits, not on their access to substantive rights.

“Hence the struggle over the definition of ‘casual employee’ was really a struggle over what monetary benefits they could claim under the respective collective agreements.

It was not a struggle over whether they were entitled to grieve the denial of those benefits. Indeed, the fact that the decisions exist at all could be taken as evincing an ongoing recognition that casuals had always been entitled to grieve the denial of benefits — if not to the benefits themselves.”

Reference: Canadian Union of Public Employees, Local 2094 and Seaview Manor Corporation. Augustus Richardson — Chair; Scott Stearns (dissenting) and Robert Moore — Members. Kathy MacLeod for the Union. Eric Durnford for the Employer. March 2, 2013. 24pp.