CN worker entitled to bump junior employee: arbitrator

Employer tried to rely on grievance settlement, claiming it trumped collective agreement
|employmentlawtoday.com

A worker for Canadian National Railways was entitled to displace a junior employee under the collective agreement, despite a grievance settlement which CN claimed restricted her from that position, an arbitrator has ruled.

The worker was a dispatch co-ordinator at CN for five years before she was disqualified from the position. She filed a grievance and reached a settlement agreement on July 21, 2005. In the settlement, CN agreed to withdraw the disqualification and the worker agreed not to bid on a dispatch co-ordinator position for 12 months. She then moved to a clerical position.

On April 7, 2006, CN announced seven clerical jobs, including the worker’s, were being cut as of Aug. 7, 2006. The worker exercised an article in the collective agreement which allows a senior employee to displace a junior employee in an existing position. She expressed her intention to displace into a dispatch co-ordinator position.

CN denied the worker, claiming the settlement agreement stated she could only bid for a dispatch co-ordinator job after 12 months, not displace into one. It said the settlement terms allowing her to bid waived her rights under the collective agreement to displace. She could displace into anything but the dispatch co-ordinator position. The union claimed the settlement agreement didn’t make this distinction nor did it have any effect on the worker’s collective agreement rights. It also claimed CN’s denial constituted harassment under the

Human Rights Code.

Upon examining the settlement agreement, the arbitrator, Christopher Albertyn, agreed with the union. He noted the settlement withdrew her disqualification for dispatch co-ordinator and thus she was qualified for the position.

“Once the year was complete there was nothing restricting the (worker) from returning to her former position as a dispatch co-ordinator,” Albertyn said.

Albertyn added the settlement agreement also only imposed a restriction on the dispatch co-ordinator position for 12 months. It didn’t refer to any limitations after that time was up.

“She could either bid for a vacancy under the collective agreement, or she could displace back into the position, under her displacement rights in the collective agreement,” said Albertyn.

“Once the (12-month) period ended, as it had by Aug. 7, 2006, she could return and the normal rights she possessed under the collective agreement were again unrestricted,” Albertyn concluded. “The company was not justified to deny (the worker’s) displacement into the position.”

For more information see:

Canadian National Railway v. CAW-Canada

, 2007 CarswellOnt 1208 (Ont. Arb. Bd.).

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