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Can your employer eliminate your job if you exercise your collective agreement rights?

June 27, 2017

Arbitrator reinstates grievor whose job was eliminated after he exercised collective agreement rights

An arbitrator has reinstated an employee to his former position after finding that the employer eliminated the position because the employee tried to exercise his rights under the collective agreement.


The grievor was employed by the City of Windsor as a painter. He applied under the job evaluation provisions in the collective agreement for an upgrade in his job classification. The joint job evaluation committee, with equal representation from the union and management, voted unanimously to give the grievor a substantial increase in his classification and rate of pay.  CUPE Local 543 subsequently filed a grievance, seeking to challenge the retroactivity date for the grievor’s upgrade.

At that point, the head of the grievor’s department recommended that the grievor’s job be eliminated and the work contracted out.  During a City-wide budgetary process which called for all municipal departments to reduce costs, the recommendation was accepted and the grievor was laid off.

The grievor used his seniority to bump down to a janitorial position, in which he earned substantially less than he was making in the original painting position. The union grieved the elimination of his position and his layoff.

The arbitrator’s decision

The arbitrator found that the employer’s decision to eliminate and contract out the grievor’s position, causing his lay-off, was not made in good faith for proper economic reasons, but as a reprisal against the grievor for exercising his rights under the collective agreement.

[The department head] was upset when the grievor’s application was successful and resulted in a significant upgrade. When the grievor filed a grievance challenging the retroactivity date decided by him, that the “last straw” …   Four days later, long before the budget process requiring a 10% reduction in the department’s budget was received, he set the process in motion to eliminate the grievor’s job and contract out his work.  I am satisfied that the proximate cause or the trigger for his action was the filing of the retroactivity grievance.

The arbitrator ordered the grievor reinstated to the painter position at the higher rate of pay and with full compensation.

Read the case here.


Stephen Krashinsky, Kiran Kang

Practice Areas

Labour Law