ASPA has won another arbitration for two individual greivors, but in a broader look it reinforces the rights of our members. All three grievances were upheld, and the grievors are to be “made whole” – Arbitrator Koskie has reserved jurisdiction.
Arbitrator Koskie accepted every single one of our arguments: the policy was contrary to the Regulations, the suspensions were disciplinary in nature, the policy was therefore unreasonable per the KVP test, there were less-intrusive alternatives than unpaid suspensions, and the employer utterly failed to consider any of the less-intrusive alternatives.
There is a lesson here for employees and the University: Where policies intrude on employees’ personal privacy, or otherwise harm their personal interests, those policies are not valid unless the employer can justify them by establishing some competing management interest that ought to override the interests of that particular employee group. An employer who wants to impose an attendance management system, for example, might not be able to – unless it can demonstrate a serious past problem with the particular employee’s group’s attendance.
Formidable job by all those involved, past and current!
A little about the KVP Test cited in this case:
Named after the 1965 case in which the test was first articulated, the KVP test requires that to be enforceable, a policy or rule unilaterally introduced by the company, and not agreed to by the union, must satisfy the following conditions:
1.) It must not be inconsistent with the collective agreement;
2.) It must not be unreasonable;
3.) It must be clear and unequivocal;
4.) It must be brought to the attention of the employee affected before the company can act on it;
5.) The employee concerned must have been notified that a breach of the rule could result in his discharge (if the rule is used as a basis for discharge); and
6.) It should have been consistently enforced by the company from the time it was introduced.
The second requirement – that the policy or rule be reasonable – is the core of the KVP test, and must be carefully applied to the facts of each case. Policies that arbitrators have found are reasonable in some other workplace, or even in most other workplaces, might not be reasonable in your own workplace. The answer will depend on the extent to which the rule or policy interferes with the particular interests of each affected employee group. Unions should therefore be diligent in assessing the effect of every unwelcome policy or rule on the particular interests of the affected employee group.
