An arbitrator has ruled the Town of Whitby violated both its full-time and part-time collective agreements with CUPE Local 53 by allowing part-time employees to work beyond contractual hour limits without proper justification or notification.
The grievances arose from the town’s practice of scheduling part-time facility attendants to work beyond their 24-hour weekly limit. The union discovered that certain part-time employees “were regularly working more than twenty-four (24) hours per week despite not being captured within any of the exceptions to the twenty-four (24) hour limit.”
In 2021, the union warned the town it would “strictly enforce the provisions of the Scope clauses” after collective agreement renewals. The town responded that it “had not been able to identify any part-time employees regularly working in excess of the weekly hours limit.”
The union filed six grievances, including individual grievances for J.R., a part-time facilities attendant initially scheduled for 38 hours in one week, though the town later corrected this to 28 hours.
Contract interpretation
The arbitrator examined scope clauses in both agreements. The full-time agreement excludes “those persons working twenty-four (24) hours per week or less” from its coverage. The part-time agreement covers employees “regularly employed for not more than twenty-four (24) hours per week.”
However, the part-time agreement allows employees to work up to 29 hours weekly for specific reasons: “to respond to vacation, jury duty, training, short-term illness within the Bargaining Unit and Union leave.” The agreement also requires “every effort will be made to cover the above noted absences within the twenty-four (24) hour limit” and mandates that “the Corporation will provide the Union notification as soon as reasonably possible when these excess hours occur.”
The town argued that “regularly employed” meant part-time workers could occasionally exceed 24 hours provided this didn’t become routine. The union contended that 24 hours represented a hard limit with only specific enumerated exceptions.
Key ruling
The arbitrator sided with the union’s interpretation, finding the agreements create “a 24-hour limit on the hours worked by part-time employees, just as the full-time collective agreement excludes from its scope those employees working 24 hours per week or less.”
The decision emphasized that Article 2.2 of the part-time agreement “defines what ‘regularly employed for not more than 24 hours per week’ means” rather than creating additional flexibility. Part-time employees can work 24 to 29 hours weekly “but only for one of the enumerated reasons.”
The arbitrator rejected the town’s interpretation as leading to “an absurd result.” Under the town’s reading, notification would be required for a 26-hour week due to jury duty coverage, “but that the Employer could schedule any part-time employee for 30 hours per week, for any reason, without notifying the Union, so long as they did so to a degree that stopped short of being ‘regular’.”
Scope of violations
The parties identified 142 part-time facility attendants who worked during 2022 and 2023, with 75 employees exceeding 24 hours at least once. Among 4,718 total person-weeks worked, there were 351 incidents of employees exceeding the 24-hour limit.
The violations broke down into several categories:
- 75 incidents involved employees working more than 29 hours weekly
- 276 incidents involved employees working 24-29 hours weekly
Of the 276 incidents in the 24-29 hour range, only 67 were for permissible reasons under the agreement. The town explicitly acknowledged 127 incidents were “for reasons other than those which are permissible under the Collective Agreement.” For 65 incidents, the town couldn’t determine the reason, and 17 lacked sufficient information to verify compliance.
Notice failures
The town provided union notification in only 69 of the 351 incidents where part-time employees exceeded 24 hours weekly. The arbitrator noted this meant “no notice whatsoever was provided in 282 of the 351 incidents.”
While acknowledging the agreement doesn’t specify notification details, the arbitrator emphasized that “for notice to be effective, sufficient information must be provided to put the Union on notice of the circumstances relevant to the collective agreement provisions.”
Documentation problems
The town was ordered to produce documents and particulars supporting its scheduling decisions but “subsequently confirmed that no such documents or particulars are available.” The town claimed inability to provide documentation due to “system limitations, absence of proper or complete records, and/or a loss of corporate memory.”
The arbitrator declined to draw adverse inferences from this failure, noting the parties agreed to proceed despite the missing documentation and that “it is not surprising that the Employer was unable to explain and/or provide supporting documents for why a particular part-time employee worked particular hours in 2022.”
Four areas of breach
The arbitrator found collective agreement violations in four areas:
- Requiring part-time employees to work more than 29 hours weekly
- Allowing part-time employees to work 24-29 hours for non-enumerated reasons
- Failing to make “every effort” to cover absences within the 24-hour limit
- Failing to provide timely union notification of excess hours
The decision emphasized that only 7% of total person-weeks involved overages and found no evidence of “systemic violations of or a blatant disregard for the collective agreement.” Instead, the arbitrator characterized the situation as “a significant dispute between the Union and the Employer as to the proper interpretation of the collective agreement.”
The arbitrator remitted remedy discussions to the parties while remaining seized of unresolved issues.
For more information, see Canadian Union of Public Employees, Local 53 v The Corporation of the Town of Whitby, 2025 CanLII 48645 (ON LA).
