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EMPLOYEE RIGHTS AND BENEFITS - Remuneration - Premium pay

Tuesday, April 11, 2017 @ 7:55 AM  


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Appeal by SMS Equipment (SMS) from a decision setting aside an arbitrator’s dismissal of the union’s grievance based on SMS’s refusal to pay Symynuk a premium for work done in a confined space. Symynuk was a heavy-duty mechanic who was denied a pay premium for working in a confined space for his work inside the axle box of a truck. He had one worker outside the box to monitor his health and safety while working. In the past, he had been paid a premium for performing identical work, but was informed that SMS had since changed its policy to disentitle mechanics confined space premiums for axle box work. SMS took the position that Symynuk worked in a restricted, not a confined, space. In the opinion of the arbitrator, the size of the space, equivalent to a household washing machine, did not meet the definition of a “confined space” for the purpose of the collective agreement. The arbitrator also justified SMS’s decision to deny the pay premium to Symynuk, based on the fact a “confined space team” meant a team of at least three workers. On judicial review, the chambers judge concluded that the arbitrator’s decision was unreasonable for several reasons, including the fact that the decision used extrinsic evidence about SMS’s confined space pay policy in a manner that went beyond the authorized scope, by conflating the terms “confined space”, “confined space team” and “confined space premium”, as well as excluding the Occupational Health and Safety Code as objective evidence that reasonably ought to have been within the knowledge of both parties at or before the date of the collective agreement. The chambers judge also noted that the decision effectively varied the provisions of the collective agreement by replacing the term “employees” with “welders” and relied on the Employer’s past practices in the absence of the required conditions to do so.

HELD: Appeal dismissed. The chambers judge correctly concluded that the arbitrator's decision was unreasonable. It was unreasonable for the arbitrator to have concluded that the collective agreement required Symynuk to be a member of a "confined space team" comprised of a minimum of three members to qualify for the premium. It was also inappropriate for the arbitrator to refuse to consider the Occupational Health and Safety Code that provided a definition for "confined space". The arbitrator’s reliance on SMS's unilaterally prepared internal documents and the past practice of SMS to interpret the collective agreement were also unreasonable. The grievance was remitted back to a different arbitrator to be determined in accordance with the Court’s reasons.

Unifor Local 707A v. SMS Equipment Inc., [2017] A.J. No. 230, Alberta Court of Appeal, T.W. Wakeling, F.L. Schutz JJ.A and J. Strekaf J. (ad hoc), March 13, 2017. Digest No. TLD-Apr102017008