filed a grievance against his employer, Telus in Calgary, alleging the employer owed him sales and commissions and incentives payments associated with referrals he arranged via a marketing campaign in the summer of 2012.
Borden had initially filed a previous application with arbitrator Richard Hornung (also presiding over his current case), in which it was determined work done during Telus’s marketing campaign was bargaining unit work subject to negotiation under the collective agreement.
Before the current case could be determined, Hornung said his original "volunteers decision" must be interpreted accordingly.
The employer said its interpretation of the initial decision would have huge implications, and would mean that any unorganized or unstructured employee referral activities — such as the friends and family referral program — would be subject to the provisions of the collective agreement.
The union, the Telecommunications Workers Union, said the arbitrator had no jurisdiction over this particular grievance whatsoever. Regardless, Hornung said a clarification of his decision was indeed warranted.
In the initial regard, he said that "a declaration that the promotion and sale of Telus products and services, including the collection of sale referrals, at a Telus-organized event is bargaining unit work that attracts the obligation to pay wages and benefits under the collective bargaining agreement."
Therefore, Borden would be owed for the work he did on the marketing campaign in 2012.
Hornung said the issue in this case in particular was whether the voluntary participation of Telus bargaining unit employees at the various community program events would be considered bargaining unit work.
If it wasn’t, the arbitrator would not have jurisdiction, but if it was, he would have, he said.
Therefore, the volunteers decision ultimately concluded that the marketing program was in fact a new referral program that represented the first occasion in which a volunteer referral program actually constituted bargaining unit work, subject to negotiation under the collective agreement.
Therefore the work was compensable and Borden, according to Hornung’s original decision, belonged to the bargaining unit.