Junior employee gets promotion
Murray Hussey was not hired for a temporary position with the Newfoundland and Labrador Housing Corporation and, instead, an employee with less experience was selected for the job.
So the Canadian Union of Public Employees (CUPE) Local 1860 filed a grievance on Hussey’s behalf, requesting he be placed in the job and receive any lost wages and benefits — with interest — retroactive to the date of hire of the person selected for the position.
The employer, however, argued the issue was not open to arbitration because Hussey was not an employee on the date the grievance
was filed. Hussey first started working for the employer in a temporary labourer position in 2009. The temporary position lasted for several
weeks. In 2010, 2011 and 2012, Hussey received letters of employment from the employer informing him
he had been hired on for subsequent
temporary positions.
In 2014, Hussey applied for the
position of labourer and attended
an interview but was not offered
the position.
Hussey testified he was confused
as to why he was not selected
for the position. In the
past, Hussey said, he had been
recalled to work by the employer
and had not needed to apply for
the labourer positions. The employer
had always called him back
to work without an interview,
Hussey said, and he had never
been informed of any problem
with his work performance.
Hussey testified he had prior
experience in the position and,
in fact,, he had more experience
than the candidate eventually selected
for the position.
The union argued Hussey
should have been recalled in 2014
for the temporary labourer position,
as he had in past years. The
union argued that although the
letters of employment issued to
Hussey stated he was a temporary
employee, the employer had for
years treated him as a seasonal
employee.
As a seasonal employee, the
union said, Hussey was essentially
on layoff in the periods of
time between employment and,
as such, continued to be an “employee”
as defined by the parties’
collective agreement.
The union argued that because
the employer treated Hussey like
a seasonal employee — recalling
him for work each year without
subsequent interviews — he
should benefit from the rights of a
seasonal employee.
The employer, however, argued
the issue was a moot point.
Hussey’s temporary position had
concluded on March 31, 2014.
The grievance was not filed until
Aug. 19, 2014, long after Hussey
had ceased to be an employee. As
a result, Hussey did not have access
to the grievance and arbitration
procedure.
Furthermore, the employer
argued all of the letters of employment
sent to Hussey clearly
stated he was a temporary employee.
Temporary employees do
not accrue seniority, which is why
Hussey’s name did not appear on
any seniority list.
Had he been a seasonal employee,
the employer argued, he
would have been listed on the
company’s seniority list.
Arbitrator James Oakley sided
with the employer. Oakley denied
the union’s submission that
Hussey was a seasonal employee,
finding Hussey was employed for
a specific period of time each year.
Because Hussey’s employment
as a temporary labourer was terminated
on March 31, 2014, he
did not have seniority rights or
recall rights under the parties’
collective agreement. He was not
an employee and, therefore, the
grievance was not arbitrable.
The grievance was denied.
Reference: Newfoundland and Labrador Housing Corporation and the Canadian Union of Public Employees
