COURT FILE NO.: 61/03
DATE: 20031002
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MCRAE, DUNNET AND JENNINGS JJ.
B E T W E E N:
SYSCO FOOD SERVICES OF ONTARIO
Applicant
- and -
THE NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA), LOCAL 414, AND VICTOR SOLOMATENKO
Respondents
Susan L. Crawford, for the Applicant
Lewis N. Gottheil, for the Respondent CAW-Canada Local 414
HEARD: October 2, 2003
dunnet J.: (Orally)
[1] This is an application for judicial review of an arbitrator’s decision dismissing the policy grievance brought by the employer alleging that the Union had violated the collective agreement between the parties by maintaining that the bargaining unit employees were not required to work on paid holidays without their consent. Subsection 9.02(e) of the collective agreement sets out a precondition to the employees’ receipt of pay for a paid holiday. The precondition is that an employee reports and performs work if the employee has agreed to work on the paid holiday.
[2] The arbitrator found that there is nothing in Article 9 which directly addresses the question whether the employer is required to seek the employee’s consent to schedule a paid holiday as part of the regular work schedule or that it is prohibited from doing so.
[3] We are of the view that there is contractual language to support the decision of the arbitrator.
[4] There was some evidence before the arbitrator that the employer’s operations were not a continuous operation as defined in the Employment Standards Act, 2000. We are of the view that his finding in this respect was reasonable.
[5] The arbitrator found that the overriding consideration in this case was the “no contracting out” provision of s. 5(1) of the Act. The applicant argues that this was an extraneous and irrelevant issue that the parties never raised, nor were given the opportunity to make submissions. Consequently, the arbitrator breached the rules of natural justice. The respondent Union disagrees.
[6] We accept that the Union dealt with the provisions of s. 5(1) in its evidence and indirectly through its citation of re Décor Entry Systems and International Association of Machinists and Aerospace Workers, (2000) 50163 (ON LA), 92 L.A.C. (4th) 53. The Union concedes, however, that the arbitrator erred in his reference to s. 5(1) of Act. In any event, given the arbitrator’s finding that the Union and employer had not agreed to suspend the public holiday guarantee established by s. 26 of the Act, the arbitrator’s reference to s. 5(1), viewed objectively, was not the basis for his decision.
[7] In all of the circumstances, we find that the arbitrator’s findings were reasonable.
MCRAE J.
[8] The application record will read: “The application is dismissed. Oral reasons delivered by Dunnet J. Costs to the respondent fixed at $3,500.
MCRAE J.
DUNNET J.
JENNINGS J.
Date of Reasons for Judgment: October 2, 2003
Date of Release: October 10, 2003
COURT FILE NO.: 61/03
DATE: 20031002
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
mcrae, dunnet and jennings jj.
B E T W E E N:
SYSCO FOOD SERVICES OF ONTARIO
Applicant
- and -
THE NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA), LOCAL 414, AND VICTOR SOLOMATENKO
Respondents
ORAL REASONS FOR JUDGMENT
DUNNET J.
Date of Reasons for Judgment: October 2, 2003
Date of Release: October 10, 2003