©b59r AD HOC 134
IN THE MATTER OF AN ARBITRATION
VIA RAIL CANADA INC.
THE CANADIAN BROTHERHOOD OF RAILWAY, TRANSPORT AND GENERAL WORKERS
AND IN THE MATTER OF THE GRIEVANCE OF A. HALLAGAZA
SOLE ARBITRATOR: J.F.W. Weatherill
A hearing in this matter was held at Ottawa on October 27, 1982.
©u27rW.H. Matthew and A. Cerilli for the union
©u38rA. Egger, C.C. Bright and A. DeFreitas, for the company
©b59r A W A R D
In this grievance the grievor alleges that he was improperly refused
training for a position as Service Manager, an On-Board Services
position coming within the bargaining unit.
At the time of the November 15, 1981, general bid a number of
employees applied for positions as Service Manager. Among the
applicants were certain employees, including the grievor, who were
not then qualified for that job. Such employees were denied the
assignments, regardless of their seniority. Under the general
provisions of the collective agreement, these employees would not
have been entitled to the assignments, because of lack of
While the other employees who were refused the assignments have not
grieved, the grievor's position is that he was entitled to the
assignment, and to the training which would qualify him to perform
it, by reason of his seniority. In the material before me the
relative seniority of the grievor is not clearly set out, but subject
to proof thereof (that matter not having been put in issue), I
proceed on the assumption that the grievor had greater seniority than
one or more of the successful bidders for the job.
The grievor's position, that he was entitled to the assignment by
reason of his seniority, is based on a letter of understanding dated
October 16, 1981. This followed a notice, given by the company on
August 13, 1981, pursuant to a Special Agreement between the parties
dated July 7, 1978 and since continued in force.
The notice given by the company related to changes in Railway
Passenger Services which would have adverse effects on employees, in
that the number of regular assignments would be reduced. The notice
invited discussion with respect to the application of the Special
Agreement in the circumstances. These discussions were held, and
among the results was the agreement set out in the letter of
understanding of October 16, 1981.
This letter includes the following agreement: that for the November
15, 1981 General Bid only, employees would be assigned to any
position bid according to seniority only, even though the employee
may not have previously trained or qualified in such position. The
company would undertake training of those not qualified in any
There were two provisoes to the foregoing:
a) the right to such assignment applied only to employees
with two or more years' cumulative compensated service;
b) the assignment would be subject to suitability and
adaptability to perform the duties of the position as
determined by management.
In the instant case, it seems the grievor has more than two years'
cumulative compensated service, and no issue arises as to proviso
(a). As to proviso (b), however, a question does arise, which will
be dealt with later in this award.
The grievor bid on an assignment as Service Manager which was open in
the November 15, 1981 General Bid. As has been noted, I assume that
by reason of his seniority and length of service, he would have been
entitled (leaving to one side the matter of proviso (b)), to that
assignment, under the terms of the agreement of October 16, 1981.
The grievor was, however, refused the assignment, for the stated
reason that the training of Service Managers (and there is no doubt
the grievor would require training), was a System Headquarters
undertaking, and that the agreement of October 16 was a regional
agreement There was no training program. available in the Region.
The grievor was refused the position "because of the Region's
inability to train him".
This reason is, with respect, not a valid one having regard to the
commitment given in the October 16 agreement. While that agreement
is indeed one of regional application, the undertaking to provide
training is not limited to such training as may be provided within
the Region itself. Whether or not it would be necessary for the
company to send employees elsewhere for training is simply not a
consideration which arises under the agreement, negotiated between
officials of the parties having ample ostensible authority to do so.
Whether it be considered (as I think would be proper) as an agreement
within the contemplation of the Special Agreement, or as an amendment
(having effect on one occasion only) of the collective agreement
itself, the agreement of October 16, 1981 is one which it was open to
the parties to make, and its existence is not in issue. It creates
rights enforceable through the disputes procedure and ultimately
For the foregoing reasons, it is my conclusion that the company was
in error in refusing the grievor's application for an assignment as
Service Manager on the grounds stated. His application ought to have
been accepted on the basis of his seniority (always assuming that
that was sufficient), subject only to the two provisoes noted above.
While there is no issue as to proviso (a), it was the company's
position - although this was not the reason first given for refusal
of the grievor's application - that the grievor did not meet proviso
(b). Under that proviso, it remains open to management to make a
determination that any applicant is suitable and adaptable to perform
the duties of the assignment.
In the instant case, it is my conclusion, for the reasons given
above, that the company ought to have considered the grievor's
application and ought (however awkward that might have been) to have
provided the training required, pursuant to the agreement of October
16, 1931. It is therefore my award that the company give
consideration to the grievor's application, pursuant to the
foregoing. It remains, however, that the grievor must satisfy
proviso (b), and that the company may make a determination as to the
grievor's suitability and adaptability to perform the duties of the
position. It would appear from the material before me that that
determination may be expected to be a negative one, and of course the
fact that it is now to be made in the light of potential liability
for loss of earnings makes objective determination of the matter more
Such is, however, the award that must be made. While the company's
rejection of the application was based on the wrong principle, that
does not mean that proviso (b) has no application, nor that the
grievor is relieved from meeting its requirements. While the
agreement of October 16 gave certain rights of assignment to
employees who were not then qualified, proviso (b) required, in
effect, that such employees be capable of becoming qualified, given
appropriate training. That issue is still open in this case. Any
dispute as to the propriety of a determination made with respect to
the grievor's suitability and adaptability, as well as any dispute as
to the amount of compensation to which the grievor may be entitled if
it is determined that he ought to have been given the assignment, may
be brought before me for ultimate determination.
It is, subject to the foregoing, my award that the company assign the
grievor as Service Manager, and, provide any necessary training,
subject to its determination of his suitability and adaptability to
perform the duties of the position.
DATED AT TORONTO, this 2nd day of November,1982.