A millwright had apprentice training expenses covered by the employer, but after he received certification, he resigned to go and work for another company.
Carie Ochitwa had worked for Tolko Industries in High Level, Alta., since 2005 but on Jan. 20, 2015, he became a journeyperson millwright.
The employer shelled out $42,337.96 for Ochitwa’s four years of education. Under the collective agreement, “an employee upon completion of an apprenticeship opportunity is encouraged to work in the journeyperson position for a minimum of four years as a return-to-service commitment. Should the employee bid out or voluntarily leave the company within the four years, the employee’s obligation for repayment of all costs, wages topped up by the company while at school, out-of-town expenses, etc., will be reimbursed by the employee.”
If an employee were to leave before one year, the employee was ordered to pay 100 per cent of the education costs.
For the next four years, the reimbursement costs were to be repaid on a sliding scale from 75 per cent down to 25 per cent, if the employee left after serving three years.
Ochitwa passed the initial test for apprentice training (known as the Conifer test) on Feb. 12, 2009.
Around the same time, the union and the employer were negotiating a new collective agreement. The union sent an email to employees updating some of the proposed new terms.
“The company has agreed that existing apprentices are not subject to the ‘loyalty clause,’ only new apprentices coming into the program after March 1, 2010. Also, there is a change in that apprentices who stay on with Tolko after completion of their program reduce their payback on a year-to-year basis. While this doesn’t affect too many people, it is better than the ‘final offer.’
The agreement was eventually signed and the loyalty clause was included.
On Aug. 9, 2010, Ochitwa successfully bid into a millwright apprentice position.
A form from the province of Alberta Apprenticeship Application and Contract was submitted by Julie Clarke, HR coordinator, and it gave Sept. 20, 2010, as the date Ochitwa would begin his apprenticeship.
But on April 28, 2015, Ochitwa informed Tolko that he wished to seek other employment. He spoke with Corey Murphy, new HR coordinator, and asked if he had to repay apprentice-training costs if he found a new job.
Murphy told Ochitwa that he would not have to repay training costs if he left.
On April 27, 2016, Ochitwa gave his notice to leave. The employer wrote to Ochitwa and said he was liable for $31,753.47 of his costs to be refunded. Ochitwa resigned and on May 3, he responded to the repayment request: “The apprenticeship coordinator (Murphy) told me that the repayment did not apply to me.”
The United Steelworkers (USW), Local 1-207, filed a grievance but it was dropped. The employer filed a grievance on July 1, in response.
The USW argued that because Ochitwa first passed his Conifer test in 2009, he should have been grandfathered into the 2010 agreement.
Arbitrator Robert Abells disagreed. “I find it is fair and just that Ochitwa be required to meet his obligations and I order him to pay to the employer the sum of $31,753.47 plus interest.”
Murphy’s response to Ochitwa was incorrect, said Abells, and “the employer ought to have properly briefed Murphy as to the operation of section 8 of the apprenticeship agreement. I agree Murphy should have sought clarification from more senior management before mistakenly informing Ochitwa that he would be free of any obligation if he were to quit. Nevertheless, these facts alone, and in the context of the surrounding circumstances, do not make it unfair for the employer to enforce its rights.”
“Difficult as it may have been on April 25, 2016, when he learned of the employer's claim for Ochitwa to change course, in my view, he could have and should have taken steps to remain in the employ of Tolko for another three years so as to satisfy his legal obligations,” said Abells.
Tolko Industries and United Steelworkers, Local 1-207. Robert Abells — arbitrator. Michael Kilgallin for the employer. David Mercer for the employee. Oct. 19, 2018. 2018 CarswellAlta 2346
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