Inconvenience of vacation planning does not warrant relief: Arbitrator
The Pulp, Paper and Woodworkers’ union sought an interim order pending a grievance determination at one of its pulp manufacturers in British Columbia, Zellstoff Celgar.
The mill, in Castlegar, was purchased by the employer in 2005. In 2012, it decided to take steps to make the mill more profitable and ensure its continued operation. So between July and September of 2013, the company undertook a restructuring process that
resulted in significant reduction in the number of staff and employees.
In January 2014, the union accordingly filed a grievance, alleging the employer had failed to ensure adequate relief was available so that workers would not have been required to work more than 40 hours per week.
Then, in March, the employer introduced a new time-off policy, which the union also grieved, saying it breached the collective agreement. It challenged the policy on the basis it improperly restricted the times during the year that employees were allowed to schedule their vacation and other contractual time-off.
The final decision on whether the policy was a violation of the contract was slated for the early new year but, until then, the union said the current system raised scheduling problems for employees.
One of the policy elements required employees to submit preferred vacation time for the next year by Dec. 31 of the preceding year, as annual vacation schedules were put together by the employer by Jan. 31.
Therefore, the union sought an interim relief in case employees needed to make vacation adjustments.
"It will be impossible for a remedy to be provided that allows those choices to be undone," the union said, adding that it’s because employees will likely already have made plans and commitments.
The employer, however, said the union had failed to provide a sufficient test for granting the interim relief.
In making his decision, arbitrator Michael Fleming said he weighed the balance of convenience to both parties by determining whether adequate remedy was possible, that the request must not be frivolous or vexatious, and that it must not penalize the respondent should the application fail.
In this case, Fleming said employees would presumably wait until Jan. 31 to book their time off.
"While I appreciate the union’s interest in avoiding the practical difficulties that could arise if the grievance challenging the policy is ultimately successful, I am not persuaded there would be irreparable harm if the application is not granted," he said.
"I am also not persuaded that the balance of convenience weighs in favour of granting the interim relief."
Therefore, the union’s request for interim relief was denied.
Reference: Zellstoff Celgar and the Pulp, Paper and Woodworkers’ Union Local 1. Michael Fleming — arbitrator. Nazeer Mitha and Mark Colavecchia for the employer, William Clemens for the union. Nov. 23, 2015.