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COLLECTIVE AGREEMENTS - Provisions - Interpretation

Wednesday, September 23, 2020 @ 6:17 AM  


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Appeal by the employer from the dismissal of its application for judicial review of an arbitrator’s award allowing the union’s grievance and finding that the appellant violated the collective agreement when it removed anti-fatigue mats in the U-scan areas. The collective agreement required the mats to be placed at the U-scan podiums where the monitoring cashier stood for several hours. The mats were removed when the podiums were removed after the monitoring cashiers were given handheld iPads and were no longer required to stand long hours at a podium. The union grieved the removal of the anti-fatigue mats. The arbitrator rejected the appellant’s argument that, because U‑scan podiums no longer existed, it could not be found to be in breach of the collective agreement. The arbitrator determined that, although U-scan podiums no longer existed in the stores, there remained a U-scan area, and that, based on the evidence that area was still an appropriate one for an anti-fatigue mat.

HELD: Appeal dismissed. The arbitrator did not err when he assumed jurisdiction over the dispute between the parties even though the U-scan podiums had been removed. The arbitrator identified the fact that the U-scan podiums no longer exist but that there remained an area where the self-checkout machines were situated which required the assistance or attendance of a cashier and that the grievance notice should be interpreted as encompassing the area where the self-checkout machines were situated. The chambers judge did not err in declining to quash this decision on the basis that the arbitrator inappropriately assumed jurisdiction over the dispute. The chambers judge did not err by declining to find that the Arbitration Award was unreasonable in how it addressed the appellant’s management rights of the collective agreement. The arbitrator did not ignore or misconceive the appellant’s expert’s evidence regarding the continued usefulness of the anti-fatigue mats. The arbitrator understood and considered this evidence but, in the end, simply found it to be unhelpful.

Real Canadian Superstores v. United Food and Commercial Workers Union Local 1400, [2020] S.J. No. 310, Saskatchewan Court of Appeal, N.W. Caldwell, L.M. Schwann and R. Leurer JJ.A., August 19, 2020. Digest No. TLD-September212020005