Seniority not determinative factor in dismissal: employer
After a series of challenging years for ATCO Electric in Alberta, the company began to lay off hundreds of workers in 2015.
But on Sept. 23, Christina Henderson was terminated from her position as senior warehouseman in Nisku, Alta. — despite being one of the most senior of 11 fellow employees. She was originally hired on Oct. 31, 2007.
According to the grievance letter, filed by the Canadian Energy Workers’ Association (CEWA) union on Oct. 28, Henderson felt that “as the only female in the warehouse and of the third most seniority, I was dismissed. I was incredibly embarrassed and ashamed when I was forced to walk out after being dismissed in front of coworkers, rather than being accompanied in a private manner while the supervisor of Nisku and Jean [Loitz, director of corporate services] sat at the end of the hall talking and laughing. It’s apparent that there was no intention or necessary measures taken to have this handled in a private manner.”
As well, according to Henderson, Loitz had continually singled her out in the past and decreased her workload and number of hours worked.
Henderson hadn’t received a negative review and she was the only warehouse employee to take courses to further her education so it was wrong of the employer to dismiss her, she testified.
The employer also posted a new employee to the warehouse, which “effectively added a permanent employee to Nisku through a back door, doing a job that I could have been doing. I believe this should be considered a breach of article 34 by management for my dismissal, and that I should be reinstated,” said Henderson in a note sent to the employer after her termination.
According to article 34, “if the company needs to reduce the workforce, it will invite employees from the job classes being reduced to volunteer for severance. The company will choose the employees to be terminated from the list of volunteers. If there are insufficient volunteers to meet the proposed reduction, the company may select additional employees to be terminated.”
However, Henderson was chosen for dismissal due to various reasons (for example, she had caused some friction with other employees and sometimes overreached her boundaries with customers), according to Loitz. And the new employee hired at the Nisku location was not in the warehouse department but in the transmission classification, she said.
Seniority was only one factor in the decision but not the determinative one, said Loitz.
As well, Henderson was rude during the termination meeting and she swore at Loitz on the way out, said Loitz, which justified management’s consensus to end her employment with ATCO.
Arbitrator D.P. Jones (backed by fellow board member Roger Hofer and dissented by Mark Wells) found the grievance was not valid and dismissed it.
“The union has not established that the employer’s decision to terminate Henderson’s position was being unreasonable, capricious or made in bad faith.”
The fact that Henderson had no negative job performance issues was not relevant, said Jones.
“While the employer could undoubtedly take performance into account in making a decision under article 34, [Henderson’s] reference to her satisfactory performance appraisals cannot be determinative in light of Loitz’s evidence that she did not look at the performance appraisals of any of the 11 warehousemen because there was no question that they were all satisfactory (because an unsatisfactory performance appraisal would have come to her attention).”
And the contention by Henderson that Loitz beleaguered her during her employment was rejected by Jones.
“Although [Henderson] perceived that she was targeted by Jean Loitz, both in her remarks at the termination meeting and in her evidence at the arbitration hearing, there is no evidence of any prior difficulty in the relationship between the two of them that would substantiate such a perception.”
Reference: ATCO Electric and Canadian Energy Workers’ Association. D.P. Jones — arbitrator. Dan Bokenfohr for the employer. Paulette DeKelver for the employee. Aug. 21, 2019. 2019 CarswellAlta 1934
