Union Grieves Demotion After Employer Reassigns Employee From Usual Role

Written on behalf of Peter McSherry

When a person is employed pursuant to a collective agreement, they are a member of union. This means that the terms of employment for all workers who belong to the union, are negotiated between the union and the employer. The terms to which the parties agree are written into a document called the “collective agreement”, because it has been collectively agreed to by all members of both the union and management. The collective agreement governs the relationship between the employer and all union members. As such, whenever a dispute arises between the union and management, recourse may be had to the collective agreement to determine how the parties should resolve the disagreement. Sometimes the parties disagree on how a matter should be resolved, in which case one of the parties will file a grievance. All parties then appear before an arbitrator, who interprets the collective agreement and guides the parties as to how to resolve their dispute.

The parties may grieve any employment-related matter, from rate of pay, to hours scheduled, to payment of overtime, and everything in between. In Greif Bros Canada Inc v Unifor, Local 9670, the parties disagreed on the right of the employer to reassign employees to different areas of work, without regard to the seniority achieved by the employee.

The Employer Purportedly Breaches the Collective Agreement

The case of Greif Bros Canada Inc. v Unifor, Local 9670 involved a grievance made by the union on behalf of William Smith (“Bill”), whom it alleged had been reassigned from his usual role as Winder Operator to the role of Saw Person for a certain shift. The union took the position that, in reassigning Bill from his regular role to a different, lesser role which was typically filled by a person of lower seniority than that enjoyed by Bill, the employer had violated the collective agreement. The union filed several subsequent grievances on the same or similar grounds, including that the employer continued to remove union members from their properly assigned duties only to direct those same employees to carry out work that was far beneath them, as far as their seniority rankings indicated.

The Relevant Portions of the Collective Agreement

The arbitrator began by reviewing the relevant portions of the collective agreement, including Article 3 which governed management rights, Article 5, which governed seniority rights, and Article 16, which dealt with wages and classifications of employees. The arbitrator noted that the issue boiled down “whether the Employer can give effect to a legitimate business initiative that would result in the temporary displacement of a winder operator without regard to seniority; that is, to temporarily reassign a senior winder operator to a lower rated position in preference to the junior winder operator in circumstances where its legitimate business purpose could be achieved regardless of which winder operator is temporarily displaced.”

The employer argued that it was entitled to assign employees to work wherever the employer needed them in order for the employer to efficiently manage its workforce. While it referenced many previous arbitrator decisions in support of its position, the employer failed to address “whether in exercising its management right to assign work, it must have regard to seniority where the legitimate business objective can be achieved regardless of whether it is the senior or junior employee who is temporarily displaced.” The union argued that, while the employer was entitled to manage employees in such a way as to efficiently run its operation, it could not displace employees of higher seniority to lower-ranked positions when there was already a person of lower rank available to fill the role.

The Arbitrator Determines that the Employer Cannot Ignore Seniority

Following a review of the provisions of the collective agreement, the arbitrator was satisfied that article 3, which governed management rights, when read together with article 16.02, which discussed the wages and classification of employees, dictated that the employer was indeed allowed to temporarily transfer an employee of higher seniority to a lower-rated position, so long as the decision was made for a legitimate business purpose. However, the arbitrator also concluded that this right of the employer did not “somehow erase the seniority provisions of the collective agreement and, thereby, relieve the Employer of the necessity to comply with both its express and implied seniority provisions where to do so would not defeat the legitimate business purpose that has caused it to act under article 16.02.”

To summarize, the arbitrator was satisfied that the employer had the right to temporarily assign employees “to such work as might be required for the efficiency of operations and production”, although such assignments must be temporary and made for a legitimate business purpose. Moreover, “where the legitimate business purpose can be accomplished without affecting seniority rights, seniority rights must be respected.” Finally, the arbitrator also noted that to the extent the employer sought to transfer employees from one position to another as a disciplinary measure meant to address poor work performance, “this would constitute an unreasonable exercise of managerial discretion” in accordance with the collective agreement, and thus, was prohibited.

Contact the Law Office of Peter McSherry for Your Union Needs Today

If you are a member of a union and are wondering what your rights are as an employee, contact employment lawyer Peter A. McSherry to learn about your options. Whether you want to better understand the terms of your collective agreement, the obligations of your union, or the grievance process, the Peter A. McSherry can provide you with the knowledge needed to make informed decisions.

From our office in Guelph, our firm is proud to serve workers and employees throughout southern Ontario. Whether you are unionized or employed pursuant to common law, we can help you achieve resolution to any employment-related matters. Contact us today online or by telephone at (519) 821-5465 to schedule a confidential initial consultation.