Seasonal worker did not have seniority rights

Language requirement a concern
|Canadian Labour Reporter|Last Updated: 08/17/2015

Soon after the New Brunswick Department of Transportation and Infrastructure and the Canadian Union of Public Employees (CUPE) Local 1190 entered into a memorandum of agreement to give seasonal workers the right to recall based on seniority and job performance, Lance Deleavey was passed over for a worker with less seniority. Deleavey learned in 2013 that he would not have seasonal employment that year, and was in- formed he was being passed over because of his lack of bilingual- ism. He later learned employees with less seniority had been hired to work for the season because they had the necessary language skills. Deleavey was also unable to find work for the 2014 season because other employees who had worked the 2013 season had passed him in seniority. Deleavey testified that while he was not fluent in French, he had never had a problem communicating with French-speaking colleagues. With the exception of one division, he said, the district Deleavey worked in was primarily English-speaking. While he acknowledged communication was an important consideration for safety reasons, Deleavey said he had never been required to speak French in the past because all of his colleagues were bilingual. The union filed a grievance on Deleavey’s behalf, arguing the employer essentially overruled seniority rights with an unreasonable exercise of management rights. It was inappropriate for the employer to skip over Deleavey in favour of junior employees with bilingual language skills, the union argued, and it demanded Deleavey receive all wages, monies, seniority and benefits he was entitled to for the 2013 and 2014 seasons. The employer, however, argued the memorandum of agreement guaranteed a right of recall based on seniority, satisfactory performance and having the “skills, qualifications and experience to do the work.” Seniority is only one factor in the right to recall, the employer said, with skills — including the ability to speak French and English in a bilingual province obliged to provide services in both official languages — being just as important. The employer argued Deleavey’s seniority rights were respected. He was not selected for work in the 2013 season because, not being bilingual, he was only eligible for English-essential positions. Other seasonal employees applying for English-essential positions had more seniority and were, therefore, hired instead. As a result, the employer asked that the grievance be dismissed. Adjudicator weighs in “This matter addresses an essential characteristic of New Brunswick as the only province which is officially bilingual,” said adjudicator John McEvoy. “Official bilingualism has existed in New Brunswick for decades. Taking judicial notice, there is both a constitutional and statutory obligation on the provincial government to provide services to members of the public in the official language of their choice.” Deleavey simply did not satisfy the language qualification for the seasonal positions for the 2013 season, McEvoy said. A number of employees did exercise their rights of recall for unilingual positions based on seniority and qualifications in accordance with the parties’ memorandum of agreement. Deleavey could not do so because of his level of seniority, and he was not eligible for any number of bilingual positions because of his lack of language qualification. The grievance was dismissed. Reference: New Brunswick Department of Transportation and Infrastructure and the Canadian Union of Public Employees. John P. McEvoy — Adjudicator. Daniel Standing for the employer, Kim Cail for the union. June 17, 2015.