July 05, 2016
Arbitrator holds temporary foreign workers entitled to retroactive increase in vacation pay from 4% to 6%, despite delay in bringing grievance
Floralia Plant Growers Ltd. and UFCW, Local 1518 (Vacation Pay), Re
2015 CarswellBC 3852,  B.C.W.L.D. 1320,  B.C.W.L.D. 1324, 125 C.L.A.S. 209
British Columbia Arbitration
Labour and employment law --- Labour law — Labour arbitrations — Practice and procedure— Compliance with grievance procedure — Timeliness
Grievors employed as temporary foreign workers under federal Seasonal Agricultural Workers Program ("SAWP") — Collective agreement required employer pay employees four percent vacation allowance, increasing to six per cent after three consecutive years — Union brought grievance concerning employer's failure to pay grievors six per cent vacation allowance — Grievance allowed in part — Union submitted grievors would have first been entitled to receive six per cent vacation allowance in 2010, being their third year of employment; grievors were not paid six per cent until 2014; grievance was ongoing grievance; it would be inequitable to allow employer to profit at expense of vulnerable group of employees; employer was not prejudiced; while employer conceded it was in error at least as far as 2013, it declined to correct mistake; union was previously unaware of any issue concerning payment of vacation pay; and it was not seeking interest on unpaid vacation pay — Employer submitted grievance was untimely; grievors had been well represented by union, given pay stubs and could see whether they were paid appropriate vacation pay; and grievors had nothing to fear in their employment with employer — Grievance was substantially out of time as union sought remedy extending back five years — Grievors' vulnerability weighed in favour of awarding full remedy sought by union — Union had no prior knowledge of whether grievors had been paid their vacation pay prior to filing grievance — Grievors expressed concerns to union about possible impact on their working conditions if they raised vacation pay issue with employer — Payment of vacation pay would not cause undue prejudice to employer — Extension of time granted to allow grievance for 2012 and 2014 seasons — Grievors were also entitled to six percent vacation pay for 2015 season — Calculation remitted to parties.
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