Firefighters union grievance referred to arbitration again
The Cape Breton Firefighters Association has scored a legal victory in its ongoing grievance with the Cape Breton Regional Municipality.
The Nova Scotia Court of Appeal has ordered that a grievance filed by the association, Local 2779, again be referred to an arbitration board and set aside two previous rulings involving an arbitration board and a Supreme Court decision.
The union was also awarded $3,000 in costs in bringing its application before the appeal court.
In writing the unanimous decision for a three-member panel of the appeal court, Justice David Farrar said both the arbitration board and the Supreme Court judge misunderstood the nature of the grievance.
The grievance dates back to 2009 when the municipality decided to close the Ashby fire station in Sydney, resulting in the loss of two firefighting positions.
The union filed a grievance claiming that, under the collective agreement, the municipality had a duty to maintain a minimum number of staff at its fire stations.
In 2013, an arbitration board, headed by Philip Girard, ruled that while the municipality was within its right to close a station, it was also obligated to ensure shift-staffing levels not be reduced.
“In allowing the minimum staffing per shift to fall below the number of 10, I find, therefore, that the municipality has violated the collective agreement,” wrote Girard.
That decision further stated that according to the collective agreement, the municipality needed to maintain at least seven firefighters and three captains on any shift at any given time.
Despite the ruling, the municipality continued staffing with only six firefighters and two captains per shift, which prompted the union to file yet another grievance in 2014.
The second arbitration board was headed by Susan Ashley and ruled that the union was seeking a remedy already provided by the Girard decision and dismissed the grievance.
The decision also noted that the municipality’s actions could not be viewed as a continuing breach of the collective agreement.
The union then turned to the Supreme Court for a judicial review of the Ashley decision and Justice Frank Edwards upheld the Ashley decision.
In its review of the case, the appeal court said the Ashley and Edwards decisions fundamentally misunderstood the nature of the grievance.
“The Ashley board says that it is being asked to enforce a remedy given by an earlier board decision. With respect, that was not what was requested of it in the grievance nor was it the argument put forth by the union,” said Farrar.
He said the union was arguing that the failure to properly staff the stations, in accordance with the contract and the Girard decision, was a continuing breach of the collective agreement and justified further sanctions against the municipality.
“With respect, the current grievance did not in any way relate to the enforcement of the earlier remedy. It asked the arbitration board to make a determination as to whether there was a continuing breach. There is nothing ambiguous about the grievance,” said Farrar.
He said the Ashley decision never addressed the actual grievance nor whether the municipality’s continued failure to follow staffing levels was a new or continuing breach of the contract.
Farrar noted in the appeal court decision that the municipality argued closing the Ashby station was a single isolated event and was not a continuing breach.
“With respect, that misses the point. The breach was the failure to staff the fire stations to the minimum staff level.”