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DISCIPLINE AND DISCHARGE - Grounds - Worker availability

Tuesday, November 28, 2017 @ 8:28 AM  


Lexis Advance® Quicklaw®
Application by Canada Post Corporation (the Corporation) for judicial review of an Arbitrator’s award. The respondent Canadian Union of Postal Workers (the Union) filed a grievance alleging that a temporary employee (the Grievor) had been unjustly dismissed. The Corporation had dismissed the Grievor on the basis that he had not demonstrated reasonable availability in the acceptance of work assignments during a six month period. For that time period, the Grievor had an acceptance rate of 37.8 per cent. The Arbitrator agreed with the Union and ordered that the Grievor be reinstated. The Arbitrator held that in weighing the interests of the employer there was a requirement that there be some evidence of harm or prejudice before a dismissal could issue. He found that there was no evidence of harm to the Corporation. The Arbitrator further held that whether or not a temporary employee had demonstrated reasonable availability required a factual analysis beyond simply determining whether the employee’s acceptance rate was less than 50 per cent. The Corporation sought to have the award quashed and the grievance denied or, alternatively, to have it remitted to a different arbitrator for a hearing de novo. The Corporation took the position that the Arbitrator’s decision was unreasonable because he failed to follow arbitral jurisprudence and he effectively amended the collective agreement by introducing a requirement for corporate prejudice in the determination of reasonable availability.

HELD: Application dismissed. The jurisprudence established that reasonable availability was to be determined having regard to the employee’s rate of acceptance. The Arbitrator failed to follow that jurisprudence. However, the arbitral jurisprudence did not establish that an acceptance rate of less than 50 per cent constituted unreasonable availability in every case. The Arbitrator’s determination that the acceptance rate used by the Corporation was unilateral and arbitrary was reasonable. To the extent that the decision introduced prejudice as a precondition to dismissal, the Arbitrator impermissibly amended the collective agreement. However, the consideration of prejudice to the Corporation as one factor in determining an appropriate acceptance rate was prescribed by the arbitral jurisprudence. As a result, although the Arbitrator failed to follow arbitral jurisprudence and improperly amended the collective agreement, it was reasonable for him to find that the Corporation did not meet its onus of establishing that the Grievor’s rate of acceptance was unreasonable.

Canada Post Corp. v. Canadian Union of Postal Workers, [2017] O.J. No. 5636, Ontario Superior Court of Justice – Divisional Court, R.D. Gordon R.S.J., F.P. Kiteley and H.J. Wilton-Siegel JJ., November 2, 2017. Digest No. TLD-November272017003