The Saskatchewan Labour Relations Board found ServcoCanada Inc. committed an unfair labour practice by terminating a sheet metal worker one day after he was dispatched to a worksite, ruling the company failed to rebut the statutory presumption that the firing was motivated by anti-union considerations.
The tribunal dismissed the Sheet Metal Air Rail and Transportation union’s certification application for a bargaining unit of sheet metal workers, finding ServcoCanada does not employ such workers and has no intention of doing so. However, it declared the company breached labour law when it fired the worker following the union’s stated intent to seek certification.
The worker was dispatched by the union to ServcoCanada’s project at a K+S potash mine after the company’s construction manager contacted the union seeking two sheet metal workers for flashing, cladding and patching work. The worker performed the described tasks on his first day and left his tools on site, expecting to return for what he understood would be a three-week assignment.
The tribunal found ServcoCanada’s explanation for the termination lacked coherence and credibility. Company witnesses gave conflicting accounts of who made the decision to fire the worker and when, with the CEO, regional manager and site supervisor each providing different versions of their involvement.
Statutory presumption shifts burden to employer
Under Saskatchewan employment legislation, when an employee is terminated and was exercising union rights, there is a statutory presumption the firing was motivated by anti-union considerations. The burden then shifts to the employer to prove otherwise with clear, credible and cogent evidence.
“This onus, while extremely heavy – the employer must satisfy the Board that trade union activity played no part in the decision to discharge the employee – is not impossible to satisfy,” the tribunal noted, citing previous decisions. “Such explanation must be credible and coherent.”
The tribunal found ServcoCanada was aware of the worker’s union affiliation and the union’s intent to pursue certification through communications with the company’s construction manager, who had acknowledged the certification process and indicated it would not be a problem.
The CEO testified the company was not opposed to unionization in principle, stating “if we ever decided to open a new area that did this kind of work, we would be the first ones at the door wanting to be a member.” He said the decision not to sign an agreement with the union was based on the limited nature of the work rather than anti-union sentiment.
Hiring described as unauthorized mistake
ServcoCanada witnesses testified the worker’s hiring was a mistake arising from a misunderstanding of the project scope. The company’s core services include pipefitting, structural steel, electrical work, millwrighting and insulation, but not sheet metal work, which is typically subcontracted.
The CEO explained that the construction manager “tried to do a bit more for the client than he should have… he should not have been hiring sheet metal workers.” The manager lacked authority to engage trades outside the company’s core operations and should have recognized the work was better suited to subcontracting.
The original project scope involved structural steel modifications that fell within iron workers’ jurisdiction, not sheet metal work. The tribunal found the hiring deviated from the company’s established procedures and that the worker was paid as a general labourer without proper union deductions or benefits.
Despite finding the hiring was unauthorized, the tribunal ruled this did not excuse the company’s failure to provide a coherent explanation for the termination. “Even if the engagement was irregular or unauthorized, once [the worker] was hired and performed work, the employer assumed the obligation to justify his termination with clear, credible, and cogent evidence,” the decision stated.
Certification application fails appropriateness test
The tribunal dismissed the union’s certification application, finding the proposed bargaining unit inappropriate because ServcoCanada does not employ sheet metal workers. The company had only one other instance of sheet metal employment—a worker dispatched for 63 hours in 2018—which the tribunal found insufficient to establish a pattern.
“Before the Board can assess whether the proposed bargaining unit is appropriate for collective bargaining, it must first determine whether the employer actually employs individuals who fall within the scope of the proposed unit,” the tribunal noted.
The payroll manager testified the company was not configured to process payroll for the sheet metal workers’ union and had never previously employed a sheet metal worker in Saskatchewan. The CEO confirmed sheet metal work was not part of the company’s core services and lacked the internal expertise, tooling and infrastructure.
Union allegations of interference dismissed
The tribunal dismissed the union’s allegations that ServcoCanada interfered with union selection or required the worker to abstain from union activity as a condition of employment, finding insufficient evidence to support these claims.
The worker testified he was contacted the same day he was fired by a representative of Carpenters Local 1999 offering to return him to work at the same site if dispatched through that union. However, the tribunal found the evidence too vague to establish the company’s involvement in facilitating the contact.
“While the timing and context may suggest a connection, the Board finds that the evidence is too vague and speculative” to support a finding of interference, the decision stated.
Limited remedy ordered
Despite finding the unfair labour practice, the tribunal declined to order monetary compensation. The worker expected a three-week assignment but this was not confirmed by management or supported by documentation. He resumed employment within two weeks of the termination.
The tribunal concluded a declaration was sufficient to address the breach, noting the worker’s engagement was atypical and did not reflect an established employment relationship within the proposed bargaining unit.
For more information, see SMART v ServcoCanada, 2025 SKLRB 41 (CanLII).
