Court File and Parties

Court File No. 779/03

Released: 20051130

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Re: UNIROYAL GOODRICH TIRE MANUFACTURING, KITCHENER PLANT, DIVISION OF MICHELIN NORTH AMERICA (CANADA) INC. v. UNITED STEELWORKERS OF AMERICA, LOCAL 677 AND MR. PAUL HAEFLING

Before: Greer, Epstein and Swinton JJ.

Counsel: Patrick T.J. Gannon and David N. Corbett for the Applicant Cynthia D. Watson for the Respondent Union

Heard at Toronto: November 16, 2005

ENDORSEMENT

[1] The applicant Uniroyal (“the company”) seeks judicial review of an arbitration award of Paul Haefling dated September 26, 2003.

[2] The issue in this application is whether the arbitrator made a patently unreasonable decision when he held that the company acted unreasonably when it terminated the grievor’s employment pursuant to article 10.03 of the collective agreement.

[3] Article 10.03 is found in Part X, entitled “Attendance Regulations”. It states:

An employee may be reprimanded, suspended, or removed from the rolls at the Company’s option as resigned where:

a) S/he is absent three (3) consecutive days for reasons other than illness or injury, or seven (7) days in the case of illness or injury, and has not obtained an approved leave of absence or an extension of same.

b) Without condoning absenteeism or no report, s/he is absent on more than one occasion in thirty-one (31) consecutive calendar days and has not obtained an approved leave of absence.

c) S/he is absent three (3) consecutive days after being approved for work with a definite time to start work.

[4] The grievor in the case, Mr. Malleck, was a fifty year old employee hired in May, 1976. In February 2003, he was arrested on criminal charges. He was not released prior to trial and was ultimately convicted and sentenced to a period of imprisonment. He sought a six month leave of absence, as his early release date was August 22, 2003. At that time, he had a clear disciplinary record.

[5] Article 10.05 of the collective agreement provides that leaves of absence may be granted for reasons other than illness or injury upon application of the employee and approval by the company. The length of the leave depends on the employee’s credited service. For a person with the grievor’s service, the leave shall not exceed three months. Relying on article 10.05, the company granted a leave of absence of three months to May 20, 2003.

[6] The union grieved the failure to provide a six month leave. On May 30, 2003, the employer terminated the grievor’s employment under article 10.03.

[7] The arbitrator held that “the Company in this case did as it was required to in administering article 10.05 in respect of the original leave request, in which the grievor sough a six-month leave” (p.15 of the award). However, he went on to hold that the company had failed to act reasonably in applying article 10.03. He stated (at p. 16):

The termination of the grievor, deemed by the Company to have been brought about by the application of article 10.03, clearly affected the seniority of Mr. Malleck in that his employment and seniority were brought to an end. The Council of Printing Industries decision, as Union counsel pointed out, is to be taken as authority for the proposition that an exercise of management’s discretion in cases where an employee’s seniority rights are affected by management’s choice or decision will be reviewable at arbitration on a test of reasonableness.

[8] The arbitrator found that the company chose to terminate the grievor’s employment without giving adequate consideration to other options available. As there was no evidence that the grievor’s further absence would cause disruption to production and given the serious impact on the grievor and his family, the arbitrator concluded that the company acted unreasonably in not choosing a less onerous approach under article 10.03 and suspending the grievor without pay. Therefore, he ordered the grievor reinstated with full compensation and seniority from August 22, 2003.

[9] The decision of the arbitrator is subject to review on a standard of patent unreasonableness (Teamsters Union, Local 938 v. Lakeport Beverages, a Division of Lakeport Brewing Corp., [2005] O.J. No. 3488 (C.A.) at para. 31).

[10] The company argued that the arbitrator erred in holding that the company’s discretion under article 10.03 must be exercised reasonably or, in the alternative, that the arbitrator erred in determining the reasonableness of the decision, rather than considering only whether the company acted honestly and in good faith.

[11] Article 10.03 confers three options on the company when an employee has exceeded the periods of absence set out in that article – reprimand, suspension or removal from the rolls. The arbitrator relied on Council of Printing Industries of Canada and Toronto Printing Pressmen & Assistants’ Union No. 10 (1983), 149 D.L.R. (3d) 53 (C.A.) when he concluded that the company must act reasonably under article 10.03.

[12] That case dealt with an arbitration award where the arbitrator had held that the employer, empowered by the collective agreement to permanently classify 34 employees, must act in good faith, without discrimination and in a reasonable, non-arbitrary manner in selecting employees for permanent classification. The arbitrator reached this conclusion because the employees selected would be isolated from lay-off during certain shutdowns, and so there would be a serious impact on the seniority rights conferred on employees elsewhere in the collective agreement. The decision was held not to be patently unreasonable by the Court of Appeal.

[13] In this case, the arbitrator’s award did not extend or alter the boundaries of the leave provision in article 10.05. The arbitrator determined that article 10.03 was not a purely administrative provision, since it gave three options to the company. Because the company’s choice of termination would have a serious impact on the seniority rights of the grievor, he concluded that the employer must act reasonably in choosing its options under article 10.03. That was not a patently unreasonable interpretation of the language of the collective agreement. Indeed, it is consistent with the language of article 4.02 which states that the company shall have the right to “reasonably discipline” employees who violate a provision of the collective agreement.

[14] Nor did the arbitrator make a patently unreasonable decision when he concluded that the company had acted unreasonably in failing to suspend the grievor without pay, given the circumstances outlined in his award and, in particular, the failure to consider a less onerous option.

[15] Therefore, the application for judicial review is dismissed. If the parties cannot agree on costs, the respondent may make written submissions within 21 days of the release of this decision, and the applicant may make responding submissions within 10 days thereafter.

Greer J.

Epstein J.

Swinton J.

Released: November , 2005