OPSEU/SEFPO members often want to know when and how they can use the grievance process to challenge unreasonable Employer edicts.
Arbitrators have ruled that Employers do have the legal power to issue policies and rules unilaterally under their right to manage the workplace. But this power is not without limitations. There are circumstances in which members can grieve rules and ask an Arbitrator to declare a rule or policy invalid.
Arbitrators consider several criteria in reviewing an Employer rule. First, arbitrators can declare a rule invalid if it violates the Collective Agreement or any other laws that applies to all workers in Ontario. Second, arbitrators can declare the rule invalid if it is found to be unreasonable.
In cases in which an employee is being disciplined because of a rule, arbitrators can overrule the discipline if the Employer has not met the following conditions:
- The rule must be clear and unequivocal
- It must have been brought to the attention of the worker or workers affected before the Employer can act on it
- If the worker was discharged, then they must have been notified that discharge could be a consequence for a breach or non-compliance with the rule
- And finally, the rule must have been consistently enforced
- These criteria were developed during a pivotal 1965 case known as KVP.
The case started when the employer, a company called KVP, terminated a member of Lumber and Sawmill Workers’ Union Local 2537 after the company received a third garnishee to process on the worker’s behalf.
A garnishee is, in this case, a notice served to an employer to turn over a part of the worker’s wages directly to a creditor.
The Employer unilaterally imposed a rule stipulating that it could discharge a worker for whom it had to process more than one garnishee. Based on that rule, it terminated the worker after receiving the third garnishee.
The Arbitrator declared the rule was not consistent with the Collective Agreement since terminating a worker for such a minor infraction violated the negotiated terms of the Collective Agreement to protect job security, seniority and just cause.
The Arbitrator also found the rule to be unreasonable after no evidence was led to demonstrate the Employer’s assertion that the rule was issued to improve business efficiency. Further, he found the rule was in no way related to production. Rather, the Arbitrator found that the rule was issued to help the Employer avoid an annoyance, which could not justify drastic action and discipline, such as terminating a worker.
Since this ruling, Arbitrators have adopted the KVP test when assessing the validity of a rule unilaterally imposed by the Employer.
Unions have often successfully relied on KVP to challenge strict policies regarding personal appearance and freedom of expression in the workplace.
Recently, Employers have heavily relied on KVP to justify mandatory COVID vaccination and placing non-compliant employees on unpaid leaves of absence.