An arbitrator in Alberta has issued a supplementary ruling underscoring an employer’s obligation to fully compensate a wrongfully dismissed worker, including the opportunity to progress to a higher pay classification.
The decision arose from a grievance filed by the United Mine Workers of America Local 2009 against CST Canada Coal Limited after J.K., a Maintenance Utility Worker, was reinstated following an earlier award but did not receive credit for the hours he would have accumulated had his termination not occurred.
In the initial proceedings, the arbitrator found that J.K. had been wrongfully dismissed and ordered reinstatement “without loss of seniority” and compensation “sufficient to place him in the position he would have been in had he not been wrongfully dismissed.”
J.K. returned to his former position as a Maintenance Utility Worker Level 2, effective on the date set out in the award, and was paid back wages at that classification’s rate. However, the union argued that he should also receive credit for the hours he would have accumulated toward achieving Maintenance Utility Worker Level 1 status during his period off the job, which included a higher hourly wage once 720 hours of qualifying work were completed.
‘Experience, knowledge, and ability’ requirement
The company maintained it had complied with the original award by paying J.K. all owed wages and restoring his seniority date. According to its representatives, the collective agreement’s Appendix C3 required “720 hours of experience, demonstrated knowledge and ability” at Level 2 before any move to Level 1. In the company’s view, J.K. could not be credited with hours he had not actually worked. Instead, he had to physically perform Level 2 duties for the required length of time to progress.
The union countered that the arbitrator’s award demanded more than simply returning J.K. to the payroll. Rather, the union believed the award entitled J.K. to the benefits and progress he would have achieved had he never been dismissed.
This included reaching the 720-hour threshold for Level 1 around the same time as his colleague R.C., who had worked the same shift pattern and duties but was never dismissed. R.C. obtained Level 1 status and pay once he reached 720 hours on the job.
During the supplementary hearing, the arbitrator recognized that a dispute remained over whether the employer had truly placed J.K. in the position he would have occupied but for the termination. While acknowledging that interpretation of Appendix C3 went beyond the scope of the retained jurisdiction, the arbitrator still examined whether J.K. received the “compensatory damages sufficient to place him in the position he would have been in” under the earlier ruling.
Quoting from the initial award, the arbitrator noted that J.K. was owed damages “sufficient to place [him] in the position [he] would have been in had [he] not been wrongfully dismissed.” The decision explained how this principle, drawn from arbitral and common law, is intended to cover all economic losses flowing from a breach, including lost wages, benefits, and advancement opportunities. The ruling stated: “It is possible to infer from this evidence that contrary to the earlier Award, the Grievor did not receive compensatory damages sufficient to place him in the position he would have been in had he not been wrongfully dissed.”
Delay amounted to lost wages
Because the collective agreement created a new Maintenance Utility Worker classification, J.K. and R.C. both started working toward the required 720 hours around the same time, just before J.K.’s dismissal. While R.C. steadily worked those hours and moved up to Level 1, J.K. had to start over once he returned. He was eventually promoted to Level 1 but significantly later than R.C. As the arbitrator found, this delay amounted to lost wages for J.K.
In the supplementary decision, the arbitrator emphasized that “the principle upon which the order of compensatory damages was based is clearly set out” in the earlier award and that “there is evidence that he was paid at the Maintenance Utility Worker Level 1 rate effective” a date well after he would normally have qualified. Determining that J.K. “would probably have completed the required 720 hours on the job” by the time R.C. did, the arbitrator found the shortfall in J.K.’s pay had to be remedied.
Further, the arbitrator rejected the company’s argument that it had already fulfilled the award by giving J.K. back pay at the Level 2 rate. Although the union’s initial damages calculation did not include the wage increase J.K. would have received upon moving to Level 1 (an oversight attributed to the union), the arbitrator concluded that this omission did not negate J.K.’s entitlement. “It appears that this wage adjustment was overlooked,” stated the decision, adding: “I see no reason why the Grievor should receive less than he is entitled because of an oversight by his Union.”
The arbitrator also dismissed a motion for non-suit brought by the company. That motion was based on the assertion that the union had not met its burden of proof, but the ruling found “some evidence upon which a reasonable trier of fact could return a finding” that J.K. had not received full compensation. Consequently, the adjudicator proceeded to address the merits of the union’s arguments.
Math left to the parties
Ultimately, the arbitrator ordered that J.K.’s compensatory damages be recalculated at the Maintenance Utility Worker Level 1 rate from the time he would likely have achieved the 720-hour threshold, had he remained employed without interruption. The ruling directed the parties to work out the arithmetic themselves, adding that the arbitrator will “continue to retain jurisdiction over any issues arising over the implementation of the Award.”
For more information, see United Mine Workers of America Local 2009 v CST Canada Coal Limited, 2025 CanLII 5406 (AB GAA).
