In order to satisfy legislated requirements, the employer transferred a worker with special qualifications from the day shift to cover shifts where his credentials were needed. The arbitrator sympathized with the employer’s situation, but concluded the contract had been violated by the transfer.
Short staffed and faced with new, statutorily mandated service obligations, a municipal employer unilaterally reassigned a regular day shift worker to shift work. The union grieved.
Municipal worker John Doe (J.D.) bid into the day shift Operator B classification at the city’s sewage and water plant.
Until 2006, the employer used qualified Operator Bs to cover shifts on an overtime basis for Trouble Investigation (TI) workers when the TI incumbents were unavailable.
However, evolving statutory requirements made this working arrangement unsustainable.
First, the Safe Drinking Water Act enacted in 2002 made it a requirement that all municipalities staff their drinking water systems on a “24/7” basis with qualified workers.
Second, amendments to the hours of work regulations under the provincial Employment Standards Act restricted continuous hours of work and made it problematic to use Operator Bs on a call-in basis to cover gaps in the 24/7 shift schedule.
Skills gap
To address this emerging skills gap, the employer first polled its employees under the terms of the collective agreement to fill additional TI positions. This effort was unsuccessful. The employer also sought qualified external hires. This effort, too, was unsuccessful.
In the meantime, the employer had established an internal training program to develop TIs, however, it took up to 18 months to sufficiently train a candidate.
The employer unilaterally reassigned J.D. to work shift work in a vacant TI position. J.D. occupied that position from Oct. 15, 2007 to July 21, 2008 and from Oct. 14, 2008 to Dec. 11, 2008.
The union grieved.
The employer’s action was in violation of the collective agreement, the union said. Without an explicit right in the contract, the employer could not unilaterally reassign a worker in that way. Even if the employer could change the worker’s job, it could not unilaterally change his normal hours of work. Therefore, J.D. was owed overtime rates — and other premiums — for all hours worked outside his regularly scheduled hours.
Employer Rights
Given the circumstances, its statutory obligations and the duty of employees under the collective agreement to be cognizant of the health, safety and general welfare of citizens, the employer said it was entitled to exercise its Employer Rights under the contract to reassign J.D.
The Arbitrator disagreed.
“In this case, the Employer unilaterally transferred the grievor who possessed the necessary qualifications to supervise the drinking water system from a day work position to a shift work TI position in order to provide the mandated supervision. It had exhausted all the avenues available to it under the collective agreement to otherwise fill the vacant TI positions, had been unable to fill by external hire and the prior arrangements were no longer viable over a minimum 15-month training period. In these circumstances, it relied upon its management rights to unilaterally transfer the grievor from his day work position to a shift work TI position for the period of time it took to train TIs. However, this not being an emergency within the meaning of article 18:01(04) and not being a temporary assignment within the meaning of article 13:01(02), it must be found that in doing so it abridged the right of the grievor not to be unilaterally transferred from the day work position that he held by way of a job posting under article 13.”
Even though the employer was required by statute to provide 24/7 coverage by qualified workers and even though it had exhausted all avenues for filling the vacant positions, the employer breached the collective agreement when it unilaterally transferred J.D.
However, given the employer’s circumstances, the remedy suggested by the union was not appropriate, the Arbitrator said.
J.D. worked different hours but he did not work additional hours. To compensate him at overtime rates for all those hours would be a substantial and disproportionate windfall, the Arbitrator said. Nevertheless, some compensation was appropriate. The Arbitrator referred the issue of remedy back to the parties.
Reference: The City of Greater Sudbury and Canadian Union of Public Employees, Local 4705. Kevin M. Burkett — Sole Arbitrator. Jack Braithewaite for the Employer. Kristy Davidson for the Union. March 14, 2010. 20 pp.
