No bargaining unit? No benefits

After being forced out of the bargaining unit following a disabling injury, a truck driver for Waste Management of Canada was forced to accept an accommodated position and forego the benefits he once had.

Claudio Catalano, a 30-year veteran, suffered an injury to his back in 2006, which ultimately — but not initially — led to a determination that he was permanently disabled.

As Catalano was no longer able to drive a truck, Waste Management accommodated him accordingly with a position in the dispatch office.

This new position was not a part of the bargaining unit. However, because his disability had yet to be declared permanent, the employer continued to apply the provisions of the collective agreement for Catalano as though he was a member of the bargaining unit.

That included benefits such as 10 per cent earnings for vacation pay, a pension contribution of 5.2 per cent, as well as an attendance bonus of $28.57 per week paid directly into his RRSP.

Then, in 2009, Ontario's Workplace Safety and Insurance Board (WSIB) declared his disability permanent. In turn, management decided to make his accommodation permanent, meaning he was permanently out of the bargaining unit.

As such, his vacation pay was reduced to eight per cent, his RRSP contributions reduced to $25 per week — paid only as a matching contribution.

His wage rate, too, was reduced, but the WSIB would top up his wage rate so that there would be no real loss — only to his benefits, pension, RRSP contributions and vacation pay.

Catalano accepted the position when the future of his wages became clear, but then filed a grievance alongside the Teamsters union.

According to the employer, the grievance should be dismissed because once his disability was deemed permanent, so too was his accommodated position outside the bargaining unit.

That meant Waste Management no longer has to pay the benefits he was receiving as a bargaining unit employee, as long as he was being paid the same as the other employees in the same non-bargaining unit position.

"When an employee is accommodated in a different position because of a disability, the employee is entitled to receive the compensation that pertains to the jobs that employee is performing, not the higher compensation that pertains to the job in which the employee was injured," counsel for the employer argued.

On the contrary, the union countered, since the employer was paying the grievor his benefits for the three years after he moved outside the bargaining unit, and before his disability was declared permanent, it indicated Waste Management stopped paying not because of the change in job, but in the change of his abilities — that is, his permanent disability.

But it was for that very reason that the employer provided his former — and higher — wage rate, regardless of its temporary nature, the grievance was dismissed by arbitrator Norm Jesin.

"That was clearly to the grievor’s benefit," Jesin explained. "Once the grievor’s restrictions and his accommodation outside the bargaining unit became permanent, the employer was entitled to compensate the grievor at the level pertaining to the work he was performing — that is, it no longer was required to pay those items such as benefits, pension and the level of vacation pay that he was paid for his bargaining unit position under the terms of the collective agreement."

Reference: Waste Management of Canada and Teamsters Union Local 419. Norm Jesin — arbitrator. Mike Biliski for the union, Seann McAleese for the employer. June 25, 2014.