United Food and Commercial Workers International Union, Local 342P-2 v. Dawn Food Products (Canada) Ltd. et al., 2005 SKQB 11

• Judge: Laing, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: January 06, 2005
• Jurisdiction: Saskatchewan
• Citations: 2005 SKQB 11;(2005), 259 Sask.R. 49 (QB)

UFCW v. Dawn Food Products Ltd. (2005), 259 Sask.R. 49 (QB)

MLB headnote and full text

Temp. Cite: [2005] Sask.R. TBEd. JA.051

United Food and Commercial Workers International Union, Local 342P-2 (applicant) v. Dawn Food Products (Canada) Ltd. (respondent) and Geoffrey England, Chairperson and Rod Shivak, Authors of Majority Arbitration Award (respondents)

(2004 Q.B.G. No. 984; 2005 SKQB 11)

Indexed As: United Food and Commercial Workers International Union, Local 342P-2 v. Dawn Food Products (Canada) Ltd. et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Laing, J.

January 6, 2005.

Summary:

An employee grieved his dismissal for excessive innocent absenteeism. An arbitration board dismissed the grievance. The union applied for judicial review.

The Saskatchewan Court of Queen's Bench dismissed the application.

Administrative Law - Topic 5060

Judicial review - Certiorari - The record (incl. return) - What constitutes the "record" - An employee grieved his dismissal for excessive innocent absenteeism - The majority of an arbitration board dismissed the grievance - The union applied for judicial review - The Saskatchewan Court of Queen's Bench held that the employer's innocent absentee policy and the letter of termination received by the employee formed part of the record - Those documents were considered by the arbitration board and related to the subject matter of the award - The dissenting opinion of the third arbitration board member did not form part of the record - However, the parties could attach the dissenting award to an affidavit if they wished to adopt the reasoning or arguments contained therein - See paragraphs 4 to 11.

Labour Law - Topic 6579

Industrial relations - Collective agreement - Interpretation - Discipline and dismissal of employees - Absenteeism - An employee grieved his dismissal for excessive innocent absenteeism - An arbitration board dismissed the grievance - The union applied for judicial review - The union argued that the arbitration board erred in finding that the employer's innocent absentee policy was reasonable, clear and unequivocal - The union took issue with the element of discretion inherent in the policy - It also argued that the "trigger" points in the policy were unfair because they excluded workers' compensation absences and long-term disability absences in excess of six months - The Saskatchewan Court of Queen's Bench dismissed the application - The board's decision that the employer's policy was reasonable, was not unreasonable - See paragraphs 18 to 22.

Labour Law - Topic 6579

Industrial relations - Collective agreement - Interpretation - Discipline and dismissal of employees - Absenteeism - An employee grieved his dismissal for excessive innocent absenteeism - An arbitration board dismissed the grievance - The union applied for judicial review - The union argued that the arbitration board erred in not admitting post-termination evidence tendered by the employee (his perfect attendance record at his subsequent employer) - The Saskatchewan Court of Queen's Bench dismissed the application - The board's decision to exclude the evidence was not unreasonable - See paragraphs 23 to 30.

Labour Law - Topic 6579

Industrial relations - Collective agreement - Interpretation - Discipline and dismissal of employees - Absenteeism - An employee grieved his dismissal for excessive innocent absenteeism - An arbitration board dismissed the grievance - The union applied for judicial review - The union argued that the arbitration board erred in finding that the employer had just cause to terminate the employee, notwithstanding that the employer did not comply with its own innocent absentee policy - The union referred to the fact that although the employer's absenteeism policy stated that all employees would start with a "clean sheet" effective July 1, 2001, the employee's letter of dismissal referred to his absenteeism prior to July 2001 - The Saskatchewan Court of Queen's Bench dismissed the application - The arbitration board accepted the employer's explanation that it only looked back at the employee's pre July 2001 record to ensure that his record of excessive absenteeism after that date was not an aberration and that the employer did not rely on the pre July 2001 absences in dismissing the employee - The board's decision was not patently unreasonable - See paragraphs 31 to 33.

Labour Law - Topic 6579

Industrial relations - Collective agreement - Interpretation - Discipline and dismissal of employees - Absenteeism - An employee grieved his dismissal for excessive innocent absenteeism - An arbitration board dismissed the grievance - The union applied for judicial review - The union argued that the arbitration board erred in finding that the employer's innocent absenteeism policy was consistent with the collective agreement - The union argued that absenteeism and sick leave abuse were addressed in s. 9 of Article 6 of Schedule B to the collective agreement and the innocent absentee policy conflicted with those provisions - The Saskatchewan Court of Queen's Bench dismissed the application - The arbitration board concluded that s. 9 in Article 6 governed culpable discipline and did not prevent the employer from introducing its innocent absenteeism policy - The board's decision was reasonable - See paragraphs 34 to 40.

Cases Noticed:

R. v. Northumberland Corporation Appeal Tribunal, [1951] 1 All E.R. 122 (C.A.), refd to. [para. 5].

Baldwin & Francis Ltd. v. Patents Appeal Tribunal, [1959] A.C. 663, refd to. [para. 5].

Regina (City) v. Amalgamated Transit Union Division No. 588 (1975), 61 D.L.R.(3d) 376 (Sask. Q.B.), affd. (1976), 67 D.L.R.(3d) 533 (Sask. C.A.), refd to. [para. 9].

Yorkton Credit Union Ltd. v. Saskatchewan Joint Board, Retail, Wholesale and Department Store Union (1987), 61 Sask. R. 96 (Q.B.), affd. (1988), 67 Sask. R. 250 (C.A.), refd to. [para. 9].

Alberta Union of Provincial Employees et al. v. Lethbridge Community College, [2004] 1 S.C.R. 727; 319 N.R. 201; 348 A.R. 1; 321 W.A.C. 1; 2004 SCC 28, refd to. [para. 12].

Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609; 318 N.R. 332; 346 A.R. 201; 320 W.A.C. 201; 2004 SCC 23, refd to. [para. 12].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201; 160 D.L.R.(4th) 193, refd to. [para. 13].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; [2003] 5 W.W.R. 1; 2003 SCC 19, refd to. [para. 14].

University of Saskatchewan v. University Employees' Union, Local 1975 (2004), 251 Sask.R. 27; 2004 SKQB 286, refd to. [para. 15].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 223 D.L.R.(4th) 577; 2003 SCC 20, refd to. [para. 16].

Lumber & Sawmill Workers' Union, Local 2537 v. KVP Co. Ltd. (1965), 16 L.A.C. 73, refd to. [para. 18].

United Automobile Workers v. Massey- Ferguson Ltd. (1969), 20 L.A.C. 370, refd to. [para. 19].

Coquitlam (City) v. International Association of Firefighters, Local 1782, [1997] B.C.C.A.A.A. No. 499 (B.C.L.R.B.), refd to. [para. 19].

Anderson v. Maple Ridge (District) et al. (1992), 17 B.C.A.C. 172; 29 W.A.C. 172; 10 C.P.C.(3d) 258 (C.A.), refd to. [para. 25].

Compagnie minière Québec Cartier v. Métallurgistes unis d'Amérique, local 6869, [1995] 2 S.C.R. 1095; 183 N.R. 313, consd. [para. 29].

Cie minière Québec Cartier v. Quebec Grievances Arbitrator) - see Compagnie minière Québec Cartier v. Métallurgistes unis d'Amérique, local 6869.

Authors and Works Noticed:

de Smith, S.A., Judicial Review of Administrative Action (4th Ed. 1980), p. 405 [para. 6].

Counsel:

Drew S. Plaxton, for the applicant;

Melissa A. Brunsdon, for the respondent, Dawn Food Products (Canada) Ltd.

This application was heard before Laing, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following decision on January 6, 2005.