Counting The Days

[Turkeytop]

Grievor - Male age 22

Job Title - Punch Press Operator

Rate of Pay - $17.45/hr

Seniority - 46 Days

Discipline Record - Clear

Nature of Grievance - Improper discharge

Remedy sought - Reinstatement with full recovery of all monetary losses.



The Company Employs 70 workers at its metal fabricating shop.

The Collective Agreement provides that -

9:02 Seniority of each employee covered by this Agreement shall be established after a
probationary period of forty-five (45) working days during a six (6) month period. The
probationary period for all new employees shall be forty-five (45) working days, the
employee's date of hire will be considered his/her seniority date.

9:03 Employees shall be regarded as probationary employees until they have acquired
seniority as above provided. Probationary employees shall not be entitled to seniority rights and shall be subject, to termination at any time during their probationary period. Such discharge shall not be subject to the grievance provisions of this agreement

On Day number 44 of the grievor's probation, the foreman went to him and told him he just wasn't working out and his employment was being terminated immediately..

The Union argued that the employee had already completed his probation and had, in fact, worked 46 days. The Union made this calculation by counting two Saturday mornings the employee had come in to work overtime.

The Union further argued that, as the grievor was no longer a probationary employee, the Company could only discharge him for just cause and the employer had failed to show just cause.


The parties were unable to resolve the grievance and it was advanced to Arbitration. Does the grievance succeed?

[TC Talks]

Yes

[Realist]

Is his seniority 46 calendar days or 46 working days? That’s unclear

[Deleted User 14896]

Is his seniority 46 calendar days or 46 working days? That’s unclear

Like TC, I agree. As I read it, he worked 46 days in the plant.
That's greater than 44. Grievance succeeds.

I'm thinking they were supposed to let him go after 44 days.
They had no intention of keeping him, but someone missed the two Saturdays when they were keeping track of when to pull the plug.

[Turkeytop]

Is his seniority 46 calendar days or 46 working days? That’s unclear

9:02 Seniority of each employee covered by this Agreement shall be established after a
probationary period of forty-five (45) working days

[Turkeytop]

The Company's lawyer realized his client had a weak case but he gave it his best shot. He argued that the Saturdays shouldn't be counted because they weren't regular work days and they were only part days.

Realizing he might well lose that argument he offered a second, alternative argument. The guy had already been off the job for about three months and the wages he would have earned were about $9000.

In his testimony before the Arbitrator, the grievor had acknowledged that, while he was off the job he had found alternative employment and earned about $8000,

The Company's lawyer argued that, if the arbitrator ordered reinstatement, any damages awarded to the grievor should be limited to the difference between what he earned on the other job and what he would hve earned had he not been terminated at the first job,

So the arbitrator was asked to make two decisions.

Does the grievor win reinstatement to his job?

If reinstated, what is the appropriate level of monetary compensation?

[Rate This]

The Company's lawyer realized his client had a weak case but he gave it his best shot. He argued that the Saturdays shouldn't be counted because they weren't regular work days and they were only part days.

Realizing he might well lose that argument he offered a second, alternative argument. The guy had already been off the job for about three months and the wages he would have earned were about $9000.

In his testimony before the Arbitrator, the grievor had acknowledged that, while he was off the job he had found alternative employment and earned about $8000,

The Company's lawyer argued that, if the arbitrator ordered reinstatement, any damages awarded to the grievor should be limited to the difference between what he earned on the other job and what he would hve earned had he not been terminated at the first job,

So the arbitrator was asked to make two decisions.

Does the grievor win reinstatement to his job?

If reinstated, what is the appropriate level of monetary compensation?

Reinstatement with full pay. The fact that he had to go get a job to survive while he fought his case is immaterial.

[Robert Faygo]

Reinstatement with full pay. The fact that he had to go get a job to survive while he fought his case is immaterial.

Agreed.

And a hunch that the guy took the money but ultimately decided to keep job #2 instead.

[Turkeytop]

There is a principle in arbitral law known as mitigation of damages. Simply put, winning his case shouldn't be like winning a jackpot. The employee isn't entitled to profit from it. The employer is required to make him whole, so his financial position is no better or worse than it would have been if he had not been fired. I knew the Company would ask for that and I knew the Arbitrator would grant it. I had already advised the grievor of that before the hearing.

In his written award, the Arbitrator commended the grievor for his effort to mitigate the employer's damages. He ordered the Company to reinstate the employee. He directed the parties to negotiate the monetary terms of his reinstatement. He committed to remain seized to deal with the matter, should the parties fail to agree on terms.

In the end, the Company agreed to pay him the difference between what he made at the other job and what he would have made in the plant. Also they agreed to reimburse him for a dental bill and for some prescription medications that should have been covered by the Company's insurance plan.

[Rate This]

There is a principle in arbitral law known as mitigation of damages. Simply put, winning his case shouldn't be like winning a jackpot. The employee isn't entitled to profit from it. The employer is required to make him whole, so his financial position is no better or worse than it would have been if he had not been fired. I knew the Company would ask for that and I knew the Arbitrator would grant it. I had already advised the grievor of that before the hearing.

In his written award, the Arbitrator commended the grievor for his effort to mitigate the employer's damages. He ordered the Company to reinstate the employee. He directed the parties to negotiate the monetary terms of his reinstatement. He committed to remain seized to deal with the matter, should the parties fail to agree on terms.

In the end, the Company agreed to pay him the difference between what he made at the other job and what he would have made in the plant. Also they agreed to reimburse him for a dental bill and for some prescription medications that should have been covered by the Company's insurance plan.

So he went back to this job?

[Turkeytop]

He went back to work.

The last I heard, he's still there, twenty years later. But he's no longer a Union member. He defected to the other side, about five years ago, when they offered him a management position.