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THE COLLECTIVE AGREEMENT - Interpretation - Precedents

Tuesday, November 10, 2020 @ 6:08 AM  

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Appeal by the Union from a chambers judge’s decision that quashed an arbitrator’s award. Two members of the Union were casually employed as continuing care assistants (CCA) by the respondent, although neither held a CCA certificate. They were hired with a requirement to obtain a CCA Certificate within a specified time limit. Within the time limit, their applications for permanent full-time positions as CCAs were passed over in favour of candidates who had less seniority but held a CCA certificate. The arbitrator allowed the Union’s grievances. She found the respondent was required to consider both the qualifications set out in the provincial job description and/or the equivalent qualifications as established in the letter of understanding. On appeal, the chambers judge quashed the award as unreasonable.

HELD: Appeal allowed. The chambers judge erred in concluding the arbitrator had conflated “ability to do the work” and “qualifications”. The chambers judge erred in finding the award was unreasonable because of the arbitrator’s failure to explain why she did not follow arbitral precedent, as once it was recognized the arbitrator did not equate ability with qualifications, there was no reason for her to follow arbitral precedent. He erred in concluding the award rendered provisions of the collective agreement, regarding seniority based on ability and qualifications, and the letter of understanding, which required a conditional employee to obtain a CCA certificate, nugatory. The arbitration award was reasonable. Dissenting reasons were provided.

Saskatchewan Health Authority v. Service Employees International Union-West, [2020] S.J. No. 371, Saskatchewan Court of Appeal, R.G. Richards C.J.S., R. Leurer and B. Barrington-Foote JJ.A., October 6, 2020. Digest No. TLD-November92020004