Rehired Employee Not Entitled to Credit for Former Seniority

Fired after delays in securing her pardon prevented a part-time security guard from acquiring the provincial credentials necessary for her employment, a casino security guard grieved her employer’s refusal to credit her seniority after she was rehired.

Employed as a security guard at a provincially regulated gaming establishment, S.M. was hired first on a part-time basis in May, 2007 — three months before new regulations came into effect requiring workers at gaming establishments to acquire an additional license under the Private Security and Investigative Services Act (PSIS).

A letter of understanding in the collective agreement acknowledged that the acquisition and maintenance of a PSIS licence was a condition of employment at the facility.

Along with a number of other employees, S.M. initially encountered some difficulties in obtaining the licence. In S.M.’s case, her difficulties arose because she required a pardon for a 28-year-old criminal conviction before she could get her PSIS licence.

Delays in acquiring pardon

Informed early in October, 2008 that she would need the pardon, S.M. was also told around the same time that the deadline for acquiring the PSIS licence was October 24.

S.M. missed the deadline, as did a number of other employees. The employer responded by giving the workers leaves of absence in order to give them more time to satisfy the new licensing requirements.

By early January, 2009 most of the workers — with the exception of S.M. — had acquired their licences. S.M. was terminated January 21. The letter of termination specifically referenced her inability to secure the PSIS licence as required by the letter of understanding in the collective agreement.

S.M. received her pardon one week after being fired and her PSIS licence about three weeks after that.

Shortly afterward, the employer made a verbal offer of employment to S.M., which it later followed up with a letter that offered to hire her as a probationary employee.

While S.M. signed the offer indicating her acceptance, she later grieved. The union took the position that S.M. should not have been hired as a new employee and that she was entitled to be credited for the seniority that she had accumulated. S.M. was a victim of misfortune and differential treatment, the union said. It was not her fault that there was a delay in granting the pardon. Moreover, the union pointed out, other employees weren’t fired — the employer had let them remain on leave while they sorted out their PSIS licensing problems.

New employee

The employer argued that it was not required to wait indefinitely for S.M. as there was no guarantee that she would be granted a pardon. The collective agreement clearly stipulated that possession of a PSIS licence was a condition of employment, the employer said, and it was within its rights to terminate her employment when she failed to secure the licence. Though it was not obligated to, the employer offered to rehire S.M. as a new employee and she accepted.

The Arbitrator dismissed the grievance.

S.M. lost her seniority as a result of a series of unfortunate events for which she was not to blame, the Arbitrator said.

Along with the other employees who also encountered difficulties acquiring the PSIS licence, the employer first placed S.M. on a leave of absence.

“It is not clear to me why the Employer could not extend [S.M.’s] leave until her efforts [to acquire the PSIS licence] would be exhausted,” the Arbitrator said.

“Still [S.M.] did not grieve her termination. That is not surprising as she was hoping to be rehired after receiving her pardon and her licence. Had she grieved her termination it would not have been clear to her or the Union, in light of the [letter of understanding] that she would have been successful. Instead the Employer ultimately offered her employment as a new probationary employee. [S.M.] chose to accept that offer of employment. That is understandable. Once she was rehired, [the collective agreement] mandated that her seniority date would be her last date of hire — in this case reflected by her rehire in 2009. I can find nothing in the collective agreement that obliges the Employer to provide the grievor as a rehired employee, seniority which she had lost when she was terminated.”

Reference: National Automobile, Aerospace, Transportation and General Workers of Canada (CAW-Canada) and Ontario Lottery and Gaming Corporation — OLG Slots Woodbine. Norm Jesin — Sole Arbitrator. Brian Stevens for the Union and Simon Mortimer for the Employer. February 17, 2010.
7 pp.

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