Arbitrary cutoff date deprived employee of choosing assignment
Steven Salvador was a temporary worker at the City of Toronto since 2008, who regularly participated in yearly work assignments for the city.
But in 2013, he was not offered a job as a driver due to his employer’s decision to restrict which workers were offered various open positions.
Piotr Kozak was part of a group who was offered assignments during an August session, even though he had less seniority than Salvador.
The city maintained it would be unwieldy to offer all open positions to the entire pool, so staff reviewed the various numbers and made decisions on who to invite for the bumping session.
Salvador was not invited to the August 2013 session .
The city typically had as many as 1,000 employees eligible each summer but it decided to restrict the invitees to fill the 100 to 150 available positions.
The offers were based on what temporary worker assignments were near the end and who would be most amenable to accepting a newer assignment.
Further complicating the issue was the fact that two positions (driver loader and recycling operator) were being merged into one position moving forward (solid waste collection operator).
The situation meant 10 workers would not be considered for the new position, even though they should have been.
The union, CUPE local 416, grieved this on behalf of two other workers.
A settlement was reached and the city began steps to fix the mixup by contacting workers who should have been given the opportunity to bump junior employees.
Kozak was identified as one of the workers affected and to mitigate the potential damage done to him, he was given a bumping opportunity for an assignment lasting from Dec. 11, 2013, to March 11, 2014.
At the same time, Salvador accepted a bumping for a job at the same yard as Kozak that only ran until Jan. 31, 2014.
After he was laid off, he discovered Kozak was still working at the Ellesmere yard at a position that Salvador was qualified to accept.
The city argued that workers in this process sometimes miss out on bumping opportunities due to scheduling: If a worker accepts an assignment, she is expected to complete the entire term and not drop out when another assignment comes up, even though, because of seniority rights, the offer could have been extended.
The city showed a list of 12 workers who would have been eligible for the position in question, had they been offered the assignment. All 12 were senior to Salvador.
The union countered despite the scheduling difficulties faced by the employer, it has no right to offer bumping rights to a junior worker over a worker with more seniority. By offering the position to Kozak, without considering Salvador, the city breached the collective agreement.
But arbitrator Gail Misra upheld the grievance.
“In this case, based on the evidence, the grievor, who was a temporary employee in a seasonal-work opportunity, was not given the chance to exercise his seniority in August 2013.”
The city was ordered to reinstate Salvador’s seniority and compensate him for lost wages.
“The parties had agreed on explicit language that required that temporary employees in seasonal work opportunities had to be given the chance to exercise their seniority in August each year. While the city was free to devise whatever system it wanted to ensure that happened, it did not have the discretion to do other than ensure that there was a process that complied with the collective agreement language,” said Misra.
“The city used a process that did not give the grievor the opportunity to exercise his seniority at all in August 2013. It unilaterally decided to only invite about 152 people to participate in the 2013 layoff and bumping process,” said Misra.
Reference: City of Toronto and Toronto Civic Employees’ Union, Local 416. Gail Misra — arbitrator. Justin Basinger for the employer. James K. McDonald, Ryan Nevell for the employee. Sept. 24, 2016.
