On June 11, 2019, the Ontario Court of Appeal ruled in favour of CUPW casual workers in a decision arising from a grievance of a casual postal worker’s dismissal for his alleged failure to be reasonably available for work assignments. CUPW was successful at the grievance arbitration in arguing that Canada Post’s reliance on an average acceptance rate benchmark to justify terminating the grievor’s employment was unreasonable. The arbitrator reinstated the grievor, finding that Canada Post should have considered the grievor’s actual number of shifts accepted and that his refusal to accept certain shifts caused the company no prejudice. On judicial review of the arbitration award, the Divisional Court upheld the award in part. Canada Post appealed.
The Court of Appeal dismissed the appeal, holding that the arbitrator did not err in considering factors other than the grievor’s relative acceptance rate to determine the reasonableness of his availability. The Court explained that arbitrators should perform a contextual analysis to determine the reasonableness of availability, which can include the following factors: the number of shifts offered, the manner of the offers, the total number of shifts and hours worked and the nature of operations. The Court noted that personal circumstances, such as an employee’s reasons for declining shifts, may also be considered in the analysis.
Congratulations to CUPW, who was represented by Paul Cavalluzzo and Adrienne Telford, on this excellent outcome.
A copy of the Court of Appeal’s decision can be found here.