Grievance a moot point for temporary employee

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

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