North Battleford, Sask., grocery-store worker alleges employer short-changed vacation

As union head, employee should have known: Arbitrator
|Canadian Labour Reporter|Last Updated: 11/19/2018

After a Discovery Co-Operative worker discovered he hadn’t been receiving his owed vacation credits, he filed a grievance and asked for nine weeks of vacation to be awarded.

Jerry Burnett worked at a North Battleford, Sask., store since he was first hired as a student in 1977. He became a full-time worker on June 23, 1980, after he graduated from high school. Eventually, Burnett became produce manager.

The issue was first brought up by Burnett in 1986, when he discovered a worker with nine years of experience was entitled to receive four weeks of vacation per year. However, when Burnett brought this up with the employer, he was told that student service time did not count toward vacation entitlement.

Burnett didn’t pursue the issue any further, figuring there was nothing more he could do.

But in 2001, co-op management told Burnett that he would be receiving an award recognizing 20 years of service. Burnett refused the award and said that he should have received the honour three years previously.

In January 2013, Burnett heard that Pat Smith, general manager, would receive a 35-year service award. Smith told Burnett he started work at the co-op in 1977, also as a student.

When he found out Smith was to receive the honour, Burnett was told he would receive the same award.

Finally, in May 2016, Burnett filled out a vacation note for Cory Weedmark, supervisor. 

After talking about the issue with a payroll employee, Burnett was advised that Weedmark’s student hours were counted toward his vacation time. 

Burnett and the union, the Retail, Wholesale, and Department Store Union (RWDSU), Local 544, grieved and alleged that in 1986, 1987 and 1988, he only received three weeks of vacation, when he should have been given four.

In 1995, 1996 and 1997, Burnett received four weeks, but he should have been given five, according to the grievance. 

Also, in 2000, 2001 and 2002, Burnett received five weeks per year, but he should have received six weeks’ time off, according to the union.

The official files of the employer list Burnett’s seniority date as 1977, not 1981, as they were updated during the 2013 to 2016 collective agreement years.

The co-op argued that seniority changes were made during the 2008 bargaining sessions, due to provincial definitions regarding students that had changed. 

As president of the local union, Burnett was privy to the discussions then, but he didn’t grieve any missed vacation time then. 

This showed Burnett was too late in making the grievance, argued the employer.

Arbitrator William Hood (backed by Laura Sommervill, employer nominee, but dissented by Don Erhardt, union nominee) agreed and dismissed the grievance. 

“The delay in this case is not days, weeks, months or years, but decades. The delay stretches back to 1980. The most recent cause of action is founded in 2000, when (Burnett) claimed he was entitled to six weeks’ vacation and was only provided with five weeks.”

“(Burnett), having been deprived of his graduated vacation-entitlement rights with full knowledge of their existence, albeit disputed by the employer, delayed in bringing the grievance. This leads to the inference that (Burnett’s) rights have been waived,” said Hood.

The blame for the missing vacation allotment should be placed on Burnett and the RWDSU, said Hood, even though the employer should have provided him with more vacation over the years. 

“(Burnett) was at the bargaining table for the union when the go-forward changes were made in 2007-08 to track student hours for vacation entitlement. The union did not raise the issue of retroactivity that would address (Burnett’s) claims. We would have thought that if these claims were alive, the issue would have been pressed. The fact that it was not pressed until 2016 is more consistent with the message the claims were water under the bridge and off the table.”

“Sleeping on one’s legal rights may, in and of itself, militate against granting relief from breach of a time limitation. (Burnett’s) conduct was far more than the mere sleeping on his rights. For the period from 1986 to 2015, the employer had every reason to believe (Burnett) knowingly was not pursuing the claims. The employer had reason to believe (Burnett) was satisfied when the employer recognized his long-service award,” said Hood.

Reference:

Discovery Co-Operative and Retail, Wholesale, and Department Store Union, Local 544. William Hood — arbitrator. Gary Bainbridge for the employer. Robert Frost-Hinz for the employee. Oct. 29, 2018. 

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