Junior employees bump most senior staffer’s request for time off

A weekend is a privilege for many workers, like Shawn Cowan, a telecommunications subcontractor who was denied a Saturday off.

Cowan, a full-time technician working for Bell in St. Catharines, Ont., was denied his request for a Saturday off for a planned cross-border shopping trip to the United States with his family. The complication arose when Cowan, the most senior employee in his area, was denied the request to accommodate more junior employees — a move he and Unifor Local 43 (for which he was president) called unwarranted and a violation of the collective agreement.

Being a technician requires a specific skill set for installation and repair work in the area. In St. Catharines, Bell also hired a variety of part-time and full-time subcontractors. None of the teams had explicit provisions defining scheduling hours and days of work. Instead, the collective agreement dictated that when "the team is unable to come to an agreement, seniority shall apply according to the requirements of the job."

On the day in question, in August 2013, Cowan noticed he had been scheduled to work two non-consecutive Saturdays. The first was doable, but the second he had planned an excursion with his family to the U.S. When he approached his managers and requested a junior employee take the shift, he was at first assured, but then denied.

That's because no other junior employees were both qualified or available to cover Cowan’s shift, the company said. Of the 27 in the pool of employees that would be suitable for the shift, 11 were absent due to scheduled vacation, nine had already worked the previous Saturday (thereby invoking the clause stating no two consecutive Saturdays would be worked), two had already worked the maximum 40 hours per week, one was on sick leave, two were away for religious leave and two were granted leave to attend a wedding — leaving no one but Cowan to fill the gap. He ended up working eight hours plus overtime.

Seniority, Unifor argued, trumped any other provision.

"The grievor’s seniority trumped the company’s ability to give discretionary time off to less senior employees," the union said. "The concept of ‘seniority’ and the exercise of the company’s ‘discretion’ in granting time off were not linked, but rather, under the collective agreement must be considered separate routes to granting an employee his or her desired day off, with seniority taking precedence over the company’s exercise of its discretion."

But Bell disagreed, saying that, if what the union argued was true, this would mean that every senior employee would demand to have the day off, even in the case that a junior employee requested time off for an important personal event that cannot be rescheduled.

Moreover, the agreement only stipulates that seniority is applied "according to the requirements of the job."

In this case, the job required Cowan to work.

This latter point solidified arbitrator Gordon Luborsky’s decision to dismiss the grievance.

By using the phrase "seniority shall apply according to the requirements of the job" in the collective agreement, the parties are similarly qualifying the employee’s right to specific job assignments by the requirement that he or she have the necessary skill set, security clearances and other unique characteristics associated with the job, he said.

"The company is not obliged to assign that work to the employee on a strict seniority basis."