Two retirement residence workers were terminated for ignoring their employer’s request to stay beyond the end of their shift to deal with a fire alarm that occurred during shift change. The union grieved and was able to negotiate reinstatements in exchange for suspensions; however, the parties could not reach agreement on compensation because of a dispute over the workers’ date of return.
A fire alarm went off at a retirement residence. The employer asked two workers to stay beyond the end of their shift until the situation had been normalized, the source of the alarm identified and the residents made comfortable.
Neither of the workers heeded the request. After the fact, one of the workers claimed that she needed to catch a bus in order to make a scheduled appointment. The other just said she needed to catch a bus.
The employer’s first response to the workers’ abandonment of their charges was disbelief. Its next response was to issue letters of termination the next day.
The union grieved.
Negotiated reinstatement
Over the ensuing weeks, negotiations between the employer and the union established the possibility of reinstatement. The workers had no record of discipline and they had been subjected to significant criticism, both from the employer and from the family members of the residents. They had also suffered financial losses as a result of being out of work.
On November 19, the employer contacted the union with an offer to bring the workers back with a three-day suspension. The union rejected the offer.
On November 25, the employer again contacted the union with an offer that the workers return to work immediately with the proviso that the quantum of discipline and damages could be settled through mediation or arbitration if necessary.
The union did not respond substantively to the offer and in December, the employer contacted the workers directly telling them to report to work.
Before the Arbitrator, the union argued that the workers were due compensation for the wages they lost as a result of their improper terminations.
The union calculated that wages were owing from October 25 — the date three days following the termination to account for the suspension — until the workers returned to work: one on December 12 and the other on December 16.
The employer’s position was that it only owed wages up until the point that it made its offer in November. If its responsibility was not satisfied by the first offer, then certainly it was satisfied by the second, open-ended offer of November 25.
Union delay
The union said the delay in responding to the offer was explained by the fact that the carriage of the file was in transition at that time. However, the union maintained that the offer was unrealistic in any event because it would not have been possible to arrange the necessary meetings on such short notice or to reintegrate the workers into the six-week shift schedule.
For its part, the employer said it should not be held responsible for the union’s staffing issues or its failure to provide proper notice about the status of a file.
The Arbitrator agreed.
“[T]here was no settlement of this matter based on the offer of November 19, 2009. The union clearly rejected this offer. I also find the union cannot rely upon the grievors’ return to work on December 12 and 16, 2009, respectively as the dates by which the calculation of damages should conclude.”
There was no compelling reason why the workers could not have returned on November 25, the Arbitrator said. The employer’s open-ended offer meant that they did not have to prejudice their positions that they were unjustly terminated and the promise of access to mediation ensured their rights under the collective agreement. “Instead, the union effectively waited until [the workers] were summoned back to work in December to resume the employment relationship. For this the employer cannot be expected to assume the liability of the period between November 25 and the December dates.”
Because the workers would not reasonably have been able to attend on the day of the final November offer, the Arbitrator said that wages were owing between October 25 and November 26.
