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Personal Grievance Case Acme Chemical Company and Reg Pistoff

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Application
The matter concerned is a personal grievance/dispute between Acme Chemical Company and Reg Pistoff. The complainant Reg Pistoff has accused Acme Chemical Company of violating the collective agreement between Acme and the union which Mr Reg Pistoff is a member of . The notice of dispute stated by Mr Pistoff stated that Mr Dan Neksdup was called back to work and began working December 8th 2010; he is a junior to Reg Pistoff, Mr Pistoff should have been called back to work first. The remedy the union demands is that the employer ceases and desists from violating the collective agreement, That the incidents be rectified and proper compensation, including benefits and overtime at the applicable rate of pay be paid, and that all who are affected be made whole in every aspect.
Facts of the case:
Before we look at the history of the case and the employment relationship between Mr Reg Pistoff and Acme Chemical Company, we must firstly address the employment contract in place at the warehouse. The union and the employer (Acme chemical Company) had a collective agreement which it had been using for the previous two years, from 2008 until 2010. A side agreement which the union and the employer Acme Chemical Company have had for the past two years provided the following:
“Where permanent employees’ position become redundant to the company’s need any temporary jobs shall be filled by those employees whose positions have been made redundant in order of seniority, with the most senior employee to be offered the temporary job first”.
The ‘side agreement’ also contained a provision for termination by either party on a one-month’ notice, On September 1 2010 the union had notified the employer Acme Chemical Company that it intended to terminate the agreement effective of 1 October 2010 and to thereafter to use the provisions of the collective agreement as it related to temporary jobs.
There are also several provisions that Acme Chemical Company and Mr Reg Pistoff put forward to support their respective cases, these provisions can be found in appendix A.
Reg Pistoff is a senior member of the workforce at Acme Chemical Company. The multinational manufacturing company employed Mr Pistoff in 2000 and over the ten years he has worked in Acme Reg has now positioned himself as the fifth most senior member out of 12 members in the shipping warehouse by December 2010. In May 2010 in accordance with the provision of the collective agreement, five members were made redundant leaving only six members, at this time Mr Pistoff became the fifth most senior members in the shipping warehouse, several months later in November 2010 Reg Pistoff and Dan Neksdup jobs were made redundant as they were the least senior members at the warehouse.
On December 7th 2010 an employee injured her hand and a temporary employee was needed to fill her shift for the following week. The foreman telephoned the personnel department to have an employee whose position had been declared redundant to be called in. The personnel manager received the request at 10am. Reg Pistoff was deemed the from the seniority list as the most senior warehouse employee who had been made redundant, the clerk attempted to contact Mr Pistoff through his home via telephone at hourly intervals to no avail from 10am-3.30pm. After this time the personnel Manager decided to have the next most senior employee called in for the work. Dan Neksdup was determined as next most senior employee after Mr Pistoff; Mr Neksdup was reached at 4pm and was prepared to start work the next morning at 8am. The appropriate papers were drawn up for Mr Neksdup to work eight-hour shifts until the 16 December to compensate for the injured employee.
The following Day on the 8th of December Mr Pistoff found out by way of conversation that Mr Neksdup was working at the warehouse, this was later confirmed when he went to the warehouse. Mr Pistoff complained to the foreman that he had not been contacted and offered the work, even though he was out of town from 9am until 5pm. The foreman in reply refused his complaint and request for work, Mr Pistoff went to the union and filled a complaint.
Understandably Acme Chemical Company reject the complaint laid by Mr Reg Pistoff
Conclusion
In order to make a sound decision I must look at the relevant facts for both parties’ cases and why these facts are important in determining a decision. I will firstly look at the case Mr Pistoff’s put forward and why the facts he has put forward are important.
Mr Pistoff has put forward the provision around seniority to claim he should have been hired before Mr Neksdup for the temporary jobs. To back up his case Mr Pistoff has used part of the side agreement to also back his case up, the side agreement states that “Where permanent employees’ position become redundant to the company’s need any temporary jobs shall be filled by those employees whose positions have been made redundant in order of seniority, with the most senior employee to be offered the temporary job first”. So basically the mistake made by Acme was that they offered the position to someone with less seniority than Mr Pistoff. Furthermore the process that Acme Chemical Company had used to appoint Mr Neksdup can be questioned. Under article X (G) the employer should have contacted Mr Pistoff via mail to his address not telephone; this might have given Mr Pistoff ample time to respond to the offer given by Acme. This is a crucial aspect in the case as timing was the main factor that determined the decision to hire Mr Neksdup instead of Mr Pistoff. It also states that Mr Pistoff should have been given four days to respond and 5 days to report to work, the rationality of this can be questioned because having 9 days to respond and report for a 7 day job does not seem logical. I can understand why Acme would reject that aspect of the claim. So as we can see the biggest issue is based around time,
Mr Pistoff was not given sufficient time to respond to the offer made to him, what I have to consider is the importance that time plays on the decision made by Acme and whether these decision were made accordingly.
The first major fact that needs to be decided is whether or not Acme broke the collective agreement. This is essential in determining whether or not Acme are legally liable, if there was any wrong doing of any part by Acme and if Mr Pistoff has a legitimate case for compensation.
The major deciding fact for Acme is the side agreement within the collective agreement. At the time when both Mr Pistoff and Mr Neksdup jobs were made redundant the collective agreement between the union and Acme which covered both individuals had been terminated in the previous month. With a side agreement that stated after the collective agreement was terminated as of October 1st ‘and to thereafter use the provisions of the collective agreement as it related to temporary jobs’. Now when we look at Article XI within the collective agreement on temporary jobs there is no mention of seniority for employees that are engaged in temporary jobs. This side agreement states the only provision used after the termination of the collective agreement is around temporary jobs, this shows that Acme is not legally liable to the claims made by the union on behalf of Mr Pistoff.
The other fact to consider is whether Acme were conducting in good faith during the process, you can argue that they are. This is seen through their actions in the process of filling the temporary position. Seniority was not part of the provision in temporary jobs; however though Acme were not legally bound to use seniority they did this to ensure that employees that had been made redundant were treated with respect.
I must take into account the importance that time played in this matter. The time Acme had to find a temporary employee to fill the role was short, this in return affected how fast the decision to hire back Mr Neksdup. To call Mr Pistoff on hourly intervals from 10am-3.30pm showed they had tried to contact him, if I am to assume that shifts finish at 5pm this gave Acme an hour and a half from 3.330pm to find somebody urgently for the next shift that started the following day on the 7th December. Also the job was for 7 days, so the opportunity to give a long time for a response was not viable.
Remedy
Application dismissed and Cost reserved. This is my decision as adjudicator; though there were some breaches in terms of seniority the side agreement overrules this. Mr Pistoff would have a case if there was a collective agreement in place, but with the termination of the collective agreement; seniority rights are no longer applicable. The side agreement had only left a provision for temporary jobs to be used after the termination of the collective agreement. I also have to take into consideration the length of the jobs (seven days), had seniority been a factor to consider, Acme could have given more time for Mr Pistoff, this would only be possible if the task of the injured employee could be covered for a single day.
To conclude the side agreement is the defining fact that ceases Mr Pistoff’s claims. Seniority is not covered in the provision and Mr Pistoff’s claim is based solely on seniority.

Appendix A

Article X - Seniority
(a) The purpose of seniority provisions herein is to provide a policy governing redundancy, rehirings and job postings. In the event of a reduction of the working force, the Company shall apply the principle of ‘last on, first off,’ provided the retained employees have the necessary qualifications and ability to perform the remaining work, consistent with the Company’s obligation to maintain an efficient working force. Following a redundancy, rehiring shall be executed conversely to the outlined redundancy procedure subject to the same conditions.
i. An employee whose position has become redundant to the Company’s need and having recall rights shall have the privilege of making application for all job openings which are posted. ii. The company shall notify these former employees by registered mail, with a copy to the Union.
(e) An employee who is engaged for temporary work will be classified as Temporary Help, will not be retained for longer than ninety (90) days in the Warehouse, and will not accumulate seniority. The Company will discuss with the Union when this classification is used. Experience gained as a temporary employee will not be used in determining qualifications and ability to fill a posted vacancy. A temporary employee will not be engaged or retained if an employee whose position has been declared redundant wishes to be recalled. A temporary job that exceeds or appears that it will exceed ninety (90) days shall be posted.
(g) If the employee fails to report for duty after a redundancy, unless he furnishes a satisfactory reason to the Company, or if one year has elapsed from the date of his redundancy he will be deemed terminated. When calling an employee back from redundancy, he shall be notified by registered mail to his last address on record with the Company and shall be allowed four (4) days from the date of notice in which to notify the Company of his intentions and a further period of five (5) days to report for work.
(h) When there is a vacancy in a job classification, other than that of Temporary Help, and the vacancy is expected to exceed thirty (30) days, the Company agrees to post a notice of such vacancy for five (5) days and will follow the Job Posting Procedure in the Company’s Rules & Procedures in filling the vacancy. Seniority will be the determining factor in filling such vacancies, except those job classifications deemed to be a promotion where seniority will be a determining factor, consistent with the Company’s obligation to maintain an efficient workforce.
Article XI – Temporary Jobs
(a) Temporary jobs are considered as jobs which will not exceed ninety (90) days’ duration, and may generally be considered as seasonal warehouse jobs, painting during summer months and vacation, illness, or injury relief.
(b) Employees engaged in these jobs are required to assist in maintaining efficient plant operation, and will be classified as ‘Temporary Help.’ They will receive the base pay rate, unless assigned to other job classifications, at which time they will receive the appropriate rate of pay for that job classification.
(c) Students engaged as ‘Temporary Help’ will not be restricted to the 90 days’ duration. ‘Temporary Help’ Relieving for illness or injury relief will not be restricted to the 90 days’ duration. Either party may request that the job be posted at the end of each 90 day period.

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