New grievance could be filed in the future: Arbitrator
It’s not personal — it’s just business.
An ex-foreman at a refrigeration company in British Columbia who was fired during a slow period believed the opposite.
As such, Robert Koster, who worked at Fraser Valley Refrigeration, filed a grievance alleging he was wrongfully terminated. Instead of being fired because of a lack of work, as his employer claimed, Koster believed he was let go because he and his boss did not get along on a personal level.
Shortly afterward, the Sheet Metal Workers Union Local 280 filed — and failed — to reinstate the foreman.
Fraser Valley Refrigeration was a family-run operation divided into three parts. Dean Masztalar ran the commercial side, while his brother ran the industrial side.
The ebb and flow of the bargaining unit was dependent on the number of contracts and amount of work available.
As the amount of work wound down and contracts came to a close, management decided to lay off employees.
Koster’s long years of service played no part in the matter, as the collective agreement had no provisions relating to seniority. Instead, management said there was a two-year history of poor performance and production from Koster.
That included circumventing Masztalar and instead going directly to his brother or father in other departments for job-related queries that he felt should have been handled by himself.
However, Masztalar maintained Koster was fired because there was a "shortage of work."
The Sheet Metal Workers Union argued it was "not normal" to fire a foreman as opposed to employees in lower positions on the floor.
The question to be answered, according to the union, was whether the grievor was laid off or was terminated underthe guise of a layoff?
"It is easy for an employer without seniority language in a collective agreement to get rid of employees by saying there was a layoff due to a lack of work," the union said.
While there is no denying work was slowing down, there was no need for a layoff. But perhaps reduced hours could have been enforced, the union added.
Fraser Valley saw otherwise. Since more layoffs were coming — indeed, 18 other employees were let go following that decision — there was a lack of work. Management said it decided to get rid of Koster because of his performance, and instead give his duties to two other employees working beneath him in the same shop.
"If there is no work for them, the least productive employees will be laid off," Masztalar said during the hearing. "(Koster) was eligible for hire-back, and a letter of reference had been provided to him."
In making his decision, arbitrator A. Paul Devine said the fundamental issue in this case was whether or not the termination was legitimate, or done for improper reasons.
First off, the union’s argument that it was suspicious to fire someone in a position of power ahead of field employees was a moot point, Devine said.
The collective agreement made no distinction between the two positions.
Similarly, there was no direct evidence of disciplinary intent on the part of Masztalar.
"He was undoubtedly frustrated with some aspects of the grievor’s work as a foreman. Some of his concerns could be considered to be petty," Devine said in his decision.
"Nevertheless, these events took place over an extended period of time during which there had been no disciplinary action taken by the employer."
And because the evidence justifying the downsizing was clear, Devine dismissed Koster’s wrongful termination grievance.
The rest remains to be seen. Should there arise an issue concerning Koster’s reinstatement if and when business picks up to a point that would normally support the hiring of a shop foreman, the union would be at liberty to pursue a new grievance.
Reference: Fraser Valley Refrigeration and the Sheet Metal Workers Union Local 280. A. Paul Devine — arbitrator.
Christine Masztalar for the employer, Darrell Thompson for the union. March 31, 2014.