Courts-Labour

Court cases—Labour relations

Rahman vs YCC #506
YCC #469 & Labourers Union Local 183

Rahman vs YCC #506
Date: 28 October 1999
Docket: 170498ES
Before: Laura Trachuk, Vice Chair

Mr. and Mrs. Rahman claimed that they were terminated from YCC # 506, a condominium building at 40 Panorama Court because Ms. Rahman was on maternity leave and because Mr. Rahman might have taken parental leave.

History
The condominium was built around 1979 and since that time, or for some significant part of it, a company called Philmor Group Limited also known as MMG Property Management (referred to as Philmor/MMG) owned and/or managed sufficient units in the building to maintain majority control of the board of directors of YCC 506.

The board of directors therefore also retained Philmor/MMG as the property manager for the building.

In August 1997 Mr. and Mrs. Rahman were hired as a superintendent couple to run the building. There was also an assistant superintendent couple who were mainly responsible for cleaning the building.

In November, 1997 the resident owners of the building had sufficient numbers versus the Philmor/MMG units to hold a special meeting of the corporation and to vote for a new all resident-owner board of directors. Washington Brooks, the president of new board described this as a "coup".

The first business of the new Board was to give notice to Philmor/MMG that YCC 506 would no longer be requiring its services. The contract was to terminate at the end of December.

Maternity leave
Ms. Rahman was expecting a baby in March. She was experiencing significant stress as a result of the tensions at the building which was having a negative effect on her health. On 17 December 1997 she therefore requested to begin her maternity leave on 03 January 1998.

Her request was presented by the existing property manager to the board of directors who consented. Ms. Rahman therefore commenced maternity leave on 03 January 1998.

New manager
At the beginning of January the board of directors met with the manager assigned by its new property management company.

Cost savings
The new property manager recommended that they layoff the four existing superintendents and hire one individual with the skills required to maintain the building. He also recommended that a contract cleaning company would do a better job than the assistant superintendent couple.

Loyalty
The new management company stated that they had encountered these situations many times before and suggested that the board could not be certain of the loyalties of the existing superintendents.

Mr. Brooks, the new president of the board, was already concerned about the Rahnians' loyalties as the previous board of directors had hired them. He had been told by a number of owners that prior to the requisition meeting, the Rahmans were soliciting proxies on behalf of Philmor/MMG. This influenced his decision to terminate the Rahmans.

Furthermore, the new board believed that most of the Rahmans' duties related to servicing the Philmor/MMG owned and/or managed rental units and were not related to providing services to the resident-owners.

The new property manager advised the board that one property manager would be assigned to the building full time and would do the work that Ms. Rahman had done. Furthermore, YCC #506 was paying Philmor/MMG rent for the apartment in which the Rahmans were living because the apartment owned by YCC #506 to house the superintendent was occupied by the assistant superintendent couple.

The termination
The board instructed management to ask all of the superintendents to "resign" and if they refused to do so to terminate them. On 07 January 1998 the Rahmans were terminated from their employment. The Rahmans were required to vacate their apartment by the end of January 1998.

The Rahmans were presented with the offer of two weeks salary in lieu of notice plus their outstanding vacation pay. However in order to receive any of the money they were required to sign a release. The offer included pay in lieu of one week more notice than YCC #506 was required to provide under the Act. However, the Rahmans did not want to sign the release.

As a result YCC #506 did not even pay them the monies to which they were entitled under the Act until April 1998 when they became so desperate that they agreed to sign the release. YCC #506 did not provide them with their records of employment until March 1998 even though Mr. Rahman asked for them several times.

Decision
The Board is persuaded that YCC #506 terminated the employment of the Rahmans because the new board believed that they were aligned with Philmor/MMG. They were also terminated because the board of directors took the advice of its new management company that it would receive better service and save money if YCC #506 used a single superintendent with maintenance and building skills as well as a cleaning company.

It is credible that the new board would have seen the advantages of having one superintendent rather than four, especially when employing four superintendents required the leasing of an apartment.

The application was dismissed.

Callousness
The board stated:
“Nevertheless, the termination of the Rahmans at that time had particularly serious consequences because they lost all of their income and also lost their apartment eight weeks prior to the birth of their baby. It was not possible to get another job as a superintendent couple given the pending birth.

The Board is therefore disappointed by the callousness exhibited by YCC #506 in refusing to pay the Rahmans the termination and vacation pay to which they were entitled under the Act until they signed the release in April.”

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YCC #469 & Labourers Union Local 183
Arbitration
Grievances of Donald Ward and Jeanette Palazzolo concerning unjust termination
Hearings held in Toronto on:
16 April, 23 September, 11 December 2014, 25 March, 21 September, 01 October 2015 and 21 January 2016
Arbitrator: John Stout
Decision: February 15, 2016

A grievance was filed on 19 February 2014 by LIUNA Local 183 on behalf of Donald Ward and Jeanette Palazzolo who were fired from their jobs as cleaners and without cause and in violation of the collective labour agreement.

YCC # 469 is a 205 unit condominium corporation at 90 Ling Road in Scarborough.

Ms. Palazzolo was never disciplined during her approximately twenty-two (22) years of service. She worked three days a week.

Mr. Ward was hired as a full-time cleaner by the condo in 1978. Mr. Ward has never worked at any other workplace.

Mr. Ward testified that prior to March 15, 2013 he had never been disciplined. On March 15, 2013, Mr. Ward was given a written reprimand for failing to fulfill his duties and responsibilities. The discipline was grieved on March 27, 2013. An Arbitrator reduced the written warning to an oral warning.

On February 14, 2014, Ms. Palazzolo was called into a meeting with Mr. Sharma. According to Ms. Palazzolo the meeting was quite abrupt, with Mr. Sharma giving her termination papers and requesting that she sign a release.

Ms. Palazzolo asked Mr. Sharma why she was being terminated and his response was “a change in business needs”. Ms. Palazzolo said that Mr. Sharma insisted that she sign a release, but she refused. At the end of the meeting, Ms. Palazzolo was escorted out of the office by a security woman.

Mr. Ward testified that he was also called into a meeting with Mr. Sharma on February 14, 2014. During this meeting, Mr. Sharma handed Mr. Ward his termination letter and advised him that he would be escorted off the property by a male security guard. Mr. Sharma then requested that Mr. Ward sign a document before he left the meeting. At this point, Mr. Ward says he got up and left with the security guard.

In the arbitrator's opinion, the Employer’s intention was clearly reflected in the documentary evidence. The Employer intended to terminate the Grievors’ employment and replace them with a single cleaner provided by EMS

I find that the Employer violated the Collective Agreement by terminating the Grievors’ employment and entering into the arrangement with EMS for the services of a heavy duty cleaner. The Employer is ordered to reinstate the Grievors in their employment and fully compensate them for all losses, less any mitigation.