$9,000 payment given to long-term employees at top of scale
Despite having the required years of seniority with their employer, two workers at Cancrew Enterprise in St. John’s were not given a bonus because they were off work due to disability.
Heber Brown and Martin Gosse had worked for the company but were not paid any salary for 2017. Brown was injured in September 2016, while Gosse booked off work for medical reasons in August 2016.
According to 16.01 of the collective agreement under seniority bonus, it is “based on years of service with the company as of Dec. 31 of each year. To be eligible, an employee must have one full year of service with the company as of Dec. 31, and it is not prorated.”
For each year of service, eligible employees received $1,000 plus CPI.
The maximum bonus for longer term employees was $9,000.
In the past, Cancrew had paid a prorated bonus to workers who worked a portion of the year. But because neither Brown nor Gosse worked at all in 2017, the employer denied them the bonus pay for the year. They were paid under the company’s LTD benefits plan while off the job.
“Both received bonus in 2016. During 2017 neither employee worked and therefore bonus was not paid. When they return to work bonus will resume. This has been practice since 1998 when bonus was implemented,” read Cancrew’s denial of the bonus payment.
On Jan. 12, 2018, the union, the International Union of Operating Engineers (IUOE), Local 904, grieved the denial. It argued that what qualified an employee to receive the bonus was the fact they the person was employed, not whether or not the worker actually worked.
In Brown and Gosse’s case, they would have been entitled to receive the maximum amount of $9,000, due to their service time.
The employer also infringed on both worker’s human rights, argued the IUOE, on the basis of disability due to their being off work.
However, the seniority bonus should be considered a work-related benefit and not a function of status, said the company. It should only be given to those who worked during the calendar year, it argued.
Arbitrator James Oakley disagreed and upheld the grievance.
“The grievors are entitled to be paid a seniority bonus under article 16.01 for the calendar year 2017 based on their status as employees with seniority and having at least one full year of service with the company, as of Dec. 31, 2017.”
“In summary, the eligibility requirements for the seniority bonus in article 16.01 are that a person have the status of an employee with seniority as of Dec. 31 and have at least one full year of service as of Dec. 31. I find that the grievors met the eligibility requirements and are entitled to be paid a seniority bonus for the calendar year 2017, in an amount to be calculated,” said Oakley.
For the employer to succeed in future to deny payments based on LTD status, it would have to write that into the collective agreement, according to the arbitrator. “The payment of the seniority bonus is based on the fact that the grievors have the status of employees with seniority with the company as of Dec. 31, 2017, and have accumulated at least one full year of service.”
The claim for human rights discrimination was denied by Oakley. “It is unnecessary to consider the submissions made by the union with respect to alleged violation of the Canadian Human Rights Act.”
Reference: Cancrew Enterprises and International Union of Operating Engineers, Local 904. James Oakley — arbitrator. Denis Mahoney for the employer. Ronald Pink for the employee. Feb. 28, 2019. 2019 CarswellNfld 239
