Loading...
HomeMy WebLinkAbout1997-0753.DiBrina.97-10-29ON-lARn CIWWN EMPLOYEES fF$;Lz&Si LA COfJRONNE GRIEVANCE COMMISSION SETTLEMENT RliGLEMENT BOARD DES GRIEFS 160 DUNmS STREETWES~ SlJITEeoO, TORONTO ONMSG 128 130, RUE DUNDAS OUES7; BUREAU 600, TORONTO (OM MM; 126 BETWEEN BEFORE: FOR THE N. Milanovic GRIEVOR Counsel Canadian Union of Public Employees 7-EWHONEJl$LiPHONE : (416) 323-1388 FACSI/UILE/7&kCOPIE : (416) 326-1306 GSB # 753/97 CUPE # 97-28 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD CUPE 1750 (F. Di Brina) - and - The Crown in Right of Ontario (Workers' Compensation Board) Employer O.V. Gray Vice-Chair FOR THE EMPLOYER E. Kosmidis Counsel Workers' Compensation Board Grievor HEARING October 15, 1997 DECISION The employer terminated the grievor’s employment effective June 17, 1997 for alleged dishonest conduct. The employer had employed him in a position outside the bargaining unit for about twenty working days at that time. Prior to that he had been employed in a bargaining unit position. The discharge occurred in the trial period contemplated by Article 5.07 of the parties’ collective agree- ment: 5.07 Transfers Outside of the BargaininP- Unit No employee shall be transferred to a position outside the bargaining unit without his consent. Such an employee will be considered to be “on trial” for a period of not more than sixty (60) working days. During this period of time if, in the opinion of the Employer, the em- ployee is unsatisfactory or if the employee so requests, he shall be re- turned to his former salary classification and placed in a position for which he is qualified without loss of seniority. The grievor filed a grievance challenging the termination of his employment, and the union pursued it on his behalf, The,grievance was referred to arbitration. When the arbitration came on for hearing, the parties agreed that I should determine a preliminary issue about the arbitrability of the grievance. They also agreed on the following facts: 1. Felix DiBrina was first hired by the Workers’ Compensation Board (WCB) on June 10, 1991 as a summer student. On August 30, 1991, he was offered the temporary position of Mail Room Clerk 1 and he worked in this job until December 26, 1991. 2. Felix DiBrina was subsequently rehired into the bargaining unit as an Access File Clerk, with the status of a non-permanent contract employee, on September 15, 1994. 3. He became a permanent bargaining unit employee effective December 9,1994 when he successfully competed for the Access File Clerk position. Mr. DiBrina completed his bargaining unit probationary period for the Access File Clerk position on or about March 15, 1995. From about May 4. 5. 6 7. . 8. -2- 1, 1995 until May 20, 1997, Mr. DiBrina temporarily held a number of bargaining unit positions while retaining his status as a permanent em- ployee (Access File Clerk position) within the bargaining unit. Subsequently, Mr. DiBrina competed for the position of Assistant Ana- lyst in the Special Investigations Branch of the WCB which is a non- bargaining unit position. Mr. DiBrina voluntarily accepted this position on May 21, 1997. Attached is a copy of a letter signed by Mr. DiBrina dated May 20, 1997, agreeing to accept the Assistant Analyst position. Mr. DiBrina paid union dues while holding the Assistant Analyst posi- tion until the pay period of May 30, 1997 to June 12, 1997. Mr. DiBrina was refunded these union dues, at this time by the WCB, thereby effec- tively removing the obligation for Mr. DiBrina to pay union dues as of May 22, 1997; and in any event before his discharge from the WCB. Mr. DiBrina’s employment as an Assistant Analyst was terminated by the WCB within twenty working days of his acceptance of this non- bargaining unit position. Attached is a copy of a letter dated June 19, 1997 terminating his employment effective June 17, 1997. As of the date of his discharge until present, Mr. DiBrina does not hold any bargaining unit or non-bargaining unit position with the WCB. Mr. DiBrina filed grievance #97-28, dated June 23, 1997, protesting his discharge from the WCB (a copy is attached) and demanded, inter ah-z, full redress and reinstatement to his previously held position pursuant to the relevant articles of the sub collective agreement existing between the WCB and the Canadian Union of Public Employees, Local 1750, (Local 1750) (a copy is attached), the bargaining agent representative in this grievance-arbitration. WCB has denied that Mr. DiBrina has the right to grieve the termination of his employment. The letter referred to in paragraph 5 provided for a sixty day trial period. The termination letter referred to in paragraph 7 said that From the evidence gathered by your employer and the statement that you provided, it has been concluded that you improperly obtained a copy of the worksample and scoring guide for the SIB Analyst recruitment. Your actions have been dishonest, have shown untrustworthiness of charac- ter and are in direct conflict with your position as an SIB Assistant Analyst. Effective June 17, 1997, your employment with the Board is terminated for just cause. It is said that the grievor’s wife was an applicant for the SIB Analyst position referred to in the letter. The precise nature of the parties’ preliminary issue underwent an evolu- tion during argument. At first the issue appeared to be whether the employer was correct that the grievor could not grieve simply because he was not employed -3- in a bargaining unit position at the time of his discharge. He had been trans- ferred to a non-bargaining unit position on a permanent basis. In those circum- stances there was no provision comparable to Article 19.04, which expressly pro- vides that an employee who is temporarily assigned to perform the duties re- sponsibilities of a position not covered by the collective agreement retains his rights under the collective agreement. The union’s answer to this was that an employee who agrees to transfer to a position outside the bargaining unit still has the rights provided by Article 5.07 during the relevant trial period, and that a grievance alleging breach of those rights raises an arbitrable issue. Reference was made to Re United Autoworkers, Local 1535, and Northern Electric Co. Ltd. (1972), 24 L.A.C. 235 (Weatherill) and Re Interlink Freight Services and Transportation Communications Union (1996), 55 L.A.C. (4th) 289 (M. G. Picher). The union contended that a decision by the employer to discharge a transferred employee during the trial period triggers the employee’s right to return to the bargaining unit under Article 5.07.’ Counsel for the employer conceded that an allegation that Article 5.07 had been breached would raise an arbitrable issue. She submitted, however, that that article did not apply in this situation, because the grievor was terminated for cause, not for unsatisfactory performance. The preliminary issue then became a question about the meaning of Arti- cle 5.07: if during the trial period contemplated by Article 5.07 the employer forms an opinion that there is cause for discharge of the employee for reasons other than his or her ability to perform the duties of the position, does that amount to forming an opinion that “the employee is unsatisfactory” within the meaning of that article, so as to trigger the requirement that the employee be returned to a bargaining unit position? Employer counsel contended that it does not, that the right to return to the bargaining unit only arises if the employer is 1 Union counsel also contended that Article 5.06 gives similar rights to an employee who has transferred to a non-bargaining unit position. I am not sure that that is so, but nothing turns on whether it is. There was no suggestion that Article 5.06 afforded any right not provided by Article 5.07. -4- not satisfied with the employee’s ability to perform the duties of the non- bargaining unit job to which he had been transferred. Union counsel countered that the article makes no distinction between disciplinary and non-disciplinary bases for a decision to remove the employee from the position. He submitted that “unsatisfactory” covers any alleged basis for such a decision, so that in this case the grievor was entitled to challenge whether there was just cause to terminate the bargaining unit employment to which the article permitted him to return. Article 5.07 provides that the employer “shall” return an employee to a position in the bargaining unit from a position outside the bargaining unit in cer- tain circumstances. If, hypothetically, an employee’s misconduct while in a posi- tion outside the bargaining unit would ordinarily justify discharge from that or any other position, it seems incongruous that the article should oblige the em- ployer to retain him or her in a bargaining unit position. That apparent incon- gruity may seem to support to the interpretation contended for by the employer. The first-mentioned hypothetical employee may be contrasted with one who sim- ply did not attain a satisfactory level of performance in his new job during the trial period, but is still qualified to perform a bargaining unit job. If “unsatisfac- tory” is interpreted so that the obligation arises under the article in the last- mentioned circumstances but not in the first hypothetical, then the incongruity is prevented. That approach to interpreting the article is superficially appealing, but on closer analysis I am persuaded that it is wrong. There are two triggers to the “right” to return to a bargaining unit posi- tion pursuant to Article 5.07. The employer’s forming an opinion that “the em- ployee is unsatisfactory” is one trigger (‘the employer opinion trigger”). A request by the employee is the other trigger (“the employee request trigger”). An inter- pretation of the article must take both triggers into account. Focussing on the employee request trigger for a moment, it is noteworthy that it is unqualified. It is not expressly limited to circumstances in which the employee has not given the employer cause to terminate his employment. Ac- cordingly, the apparent incongruity identified earlier in connection with the em- -El- ployer opinion trigger also arises with respect to the employee request trigger. It cannot be resolved with respect to the employee request trigger by giving “un- satisfactory” a special meaning. Instead, the apparent incongruity can and should be resolved with respect to both triggers by recognizing that the existence of a right to return to the bargaining unit pursuant to Article 5.07 does not pre- clude the operation of the employer’s right to terminate the employment of a bargaining unit employee for just cause. In Re Steinberg Inc. (Trillium Meats) and United Food & Commercial Workers, Local 633 (1991), 24 L.A.C. (4th) 98 (O’Shea) (referred to in Re Inter-link Freight Services, supra) an employee who had been promoted out of the bar- gaining unit to the position of foreman was questioned about irregularities in his recording of time worked by employees. In response, he asked to return to the bargaining unit pursuant to an article which provided that “[a]n employee who is promoted to a position outside the bargaining unit shall be permitted to return to the bargaining unit any time within twelve . . . months without loss of seniority or other benefits.’ There was a dispute about whether he had made that request before or after the employer had acted on the irregularities by terminating his employment. The arbitrator found that the employee had made his request be- fore the termination was effective, and had the right to grieve the termination. He also held that even if the employee had made the request after the employer discharged him, the request would still have been effective to create a situation in which the grievor could challenge the termination, so that in either event the employer would have to demonstrate that it had just cause to extinguish the grievor’s employee status under the collective agreement. It seems reasonable to conclude that if circumstances trigger the em- ployer’s obligation under Article 5.07 to return an employee to the bargaining unit, that would not preclude the employer from discharging the employee for just cause. The employee would have the right, however, to grieve the termina- tion of the status as bargaining unit employee to which he or she would other- wise be entitled pursuant to Article 5.07. In that event, the employer would bear -6- the customary burden of establishing that there was just cause for terminating that status. When Article 5.07 is viewed in that light, the apparent incongruity identified earlier does not arise with respect to either trigger, and there is no reason to assign “unsatisfactory” a special meaning in order to avoid it. The obligation to return the employee to the bargaining unit is triggered if the employer forms the opinion that “the employee is unsatisfactory.’ Either the employer considers an employee “satisfactory” or it considers him “unsatisfac- tory.” The language of the article does not create a third category of “very un- satisifactory” or “unsatisfactory for reasons other than the employee’s ability to perform the duties of his position.” When an employer considers that an em- ployee’s conduct has given it just cause to terminate his employment, it cannot be said to regard the employee as “satisfactory.” Accordingly, when the employer concluded that it had cause to terminate the grievor’s employment, it formed the opinion that he was “unsatisfactory” within the meaning of Article 5.07. That is the answer to the preliminary issue of interpretation. The grievor cannot grieve the employer’s removal of him from his non- bargaining unit position, Such a grievance would be inarbitrable. He can, how- ever, pursue a grievance that the employer did not have just cause to terminate the bargaining unit employee status to which Article 5.07 gave him the right to return. Unless the employer can establish that there was just cause to terminate that status, the grievor is entitled to the benefit of Article 5.07, whatever that benefit may be in the circumstances. Those are arbitrable issues with which I am not seised. Dated at Toronto this 29th day of October, 1996.