HomeMy WebLinkAboutMiller 13-03-04 IN THE MATTER OF AN ARBITRATION
between
SIR SANDFORD FLEMING COLLEGE
(“the College”)
and
ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION
Local 352
(“the Union”)
REGARDING THE TERMINATION GRIEVANCE OF
MR. JAMES MILLER
(GRIEVANCE NO. 2010-0352-0001 – Academic)
BOARD OF ARBITRATION:
PAMELA COOPER PICHER - CHAIR
COLLEGE NOMINEE - RICHARD O’CONNOR
UNION NOMINEE - LARRY ROBBINS
APPEARANCES FOR THE COLLEGE:
Catherine L. Peters - Counsel
Lynn Watson - Human Resources Consultant
Linda Skilton - Dean, School of Environmental
and Resource Sciences
APPEARANCES FOR THE UNION:
Laura R. Johnson - Grievance Officer
Gary Bonczak - President, Local 352
Suzanne Hooke - Vice-President, Local 352
Audrey Healy - Chief Steward, Local 352
Elizabeth Mathewson - Secretary Treasurer, Local 352
James Miller - Grievor
Hearings in this matter were held in Peterborough on February 23 and May
9, 2012 and in Toronto on October 26, 2012.
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INTERIM AWARD
The Union filed a grievance against the termination of Mr. James Miller. The
College argues that the Union had agreed to an extension of Mr. Miller’s probation
period, which was in place at the time of the termination. On that basis, the College
contends that he was a probationary employee at the time of his release. In the
alternative, the College claims that the Union is estopped from challenging the grievor’s
status as a probationary employee at the point of his dismissal. The Union, in contrast,
argues that it never agreed to an extension of Mr. Miller’s probation period and that,
therefore, he had become a regular employee at the time of his dismissal. Additionally,
the Union denies the validity of the College’s claim of estoppel.
The grievor’s employee status affects the standard that the College must meet to
justify its decision to terminate Mr. Miller. If he was a permanent employee, the College
is obligated to demonstrate that it had just cause for termination. If, on the other hand,
he was a still a probationary employee, the collective agreement provides in article
27.02 E that a “probationary employee may be released during … the employee’s
probationary period upon at least 90 calendar days’ written notice.” Given the
significantly reduced standard of review applicable to the termination of a probationary
employee, the parties have asked the Board of Arbitration to determine the grievor’s
employee status before inquiring further into the merits of the termination itself.
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The Union seeks a declaration that there was no valid extension of Mr. Miller’s
probationary period and that, as of July 21, 2010 and through to the point of his
termination on September 10, 2010, Mr. Miller was entitled to the rights of a regular
employee, inclusive of the right to the review of his release through the standard of just
cause.
1. BACKGROUND:
Mr. Miller started with the College on July 2, 2008 in the position of Heavy
Equipment Instructor in the Heavy Equipment Operator Program in the School of
Environmental and Resource Sciences. Through the terms of the collective agreement,
he was subject to a two-year probation period, which was scheduled to end on or about
July 20, 2010.
The first 1.5 years of his employment passed without incident. Although his
teaching skills were never brought into issue, by the beginning of the second year of his
probation period, substantial concerns had developed regarding Mr. Miller’s interactions
with both colleagues and students.
In response to the situation, Ms. Linda Skilton, the Dean of the School of
Environmental and Resource Sciences, held a meeting with Mr. Miller on May 14, 2010
to discuss what she viewed as a somewhat disturbing, emerging pattern. She followed
up the meeting with the implementation of an action plan, which involved Mr. Miller’s
agreement to mediation. Additionally, she issued a final probationary review for Mr.
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Miller on or about June 14, 2010, which gave him a positive evaluation regarding his
teaching skills but highlighted the significant difficulties that had developed with his
interpersonal relationships and the need for substantial improvement in that area.
On July 5, 2010, approximately two weeks prior to the expiration of his
probationary period, Dean Skilton met with Mr. Miller to go over his fourth and final
probationary review. By that point, Dean Skilton had determined that due to deficiencies
in Mr. Miller’s relationships with his co-workers and students, she was not in a position
to recommend him for permanent employment with the College. Accordingly, Dean
Skilton concluded that she had two options: either to terminate Mr. Miller prior to the end
of his probationary period or to extend his probation period to give him an opportunity to
demonstrate the requisite improvement in his interpersonal skills. The Dean’s clear
preference was to extend his probation period because of the strengths he had
demonstrated as a teacher and because she believed that, with support, he would be
able to attain the required improvement.
Dean Skilton then emailed Ms. Lynn Watson, the Human Resources Consultant
for the College throughout the period in question, about the next steps to be taken
regarding Mr. Miller’s employment. The evidence reveals that in earlier communications
between Dean Skilton and Ms. Watson regarding Mr. Miller’s situation, Ms. Watson had
advised Dean Skilton that if she decided to seek an extension of his probation period, it
would be necessary to discuss it with the Union and to obtain the Union’s agreement to
the extension.
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The dispute between the parties focuses squarely on whether the Union
consented to an extension of Mr. Miller’s probationary period. The collective agreement
does not itself provide for a probation period longer than two years. Accordingly, it is
common ground that the validity of an extension to a probation period must be founded
on mutual agreement.
A telephone conversation on July 8, 2010 between Ms. Watson, on behalf of the
College, and Professor Suzanne Hooke, as Acting President of the Local Union, is
pivotal and lies at the root of the opposing positions of the parties in this matter. The
College contends that during this call, Professor Hooke agreed to the extension of Mr.
Miller’s probation period while the Union, in contrast, claims that Professor Hooke did
not give her consent either in that telephone conversation or at any time thereafter. On
the foundation of an alleged lack of consent to the extension, the Union asserts that as
of July 21, 2010, upon the expiration of his two-year probationary period, Mr. Miller
became a regular employee and thus became entitled to a just cause standard of review
for his termination on September 10, 2010.
The College put forward an alternative argument to dispute the applicability of a
just cause standard of review. The College contends that the Union is estopped from
challenging the validity of the extension of Mr. Miller’s probationary period on the basis
of the Union’s conduct, both during and following the July 8, 2010 telephone
conversation between Ms. Watson and Prof. Hooke.
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It is undisputed that during the period in question Prof. Hooke, as Acting
President of the Local Union, had, and could exercise, all of the powers of the Union
President. President Gary Bonczak was away and out of touch for the summer of 2010,
although he had left a contact number with Prof. Hooke.
2. THE POSITION OF THE PARTIES REGARDING WHETHER THE UNION
AGREED TO EXTEND MR. MILLER’S TWO-YEAR PROBATION PERIOD:
A. The Union’s Position on Whether the Union’s Consent was Given For the
Extension:
The Union asserts that an effective agreement to extend a probation period must
be based on a meeting of the minds and a clear understanding of the terms of the
agreement, something which the Union contends did not occur either in the telephone
conversation between Ms. Watson and Prof. Hooke on July 8, 2010 or at any other time
prior to the expiration of Mr. Miller’s probation period on July 20th.
The Union reflects that in the July 8th telephone call, the consistent evidence of
both participants establishes, first, that Ms. Watson never expressly asked Prof. Hooke
for her “consent” for the extension of Mr. Miller’s probation period, and, second, that
Prof. Hooke never expressly stated that she had consented to the extension. In such
circumstances, the Union argues, the College’s intention to seek the Union’s consent
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and its belief that it had obtained it are irrelevant. According to the Union, the only
pertinent question is whether the College actually secured the agreement of the Union.
The Union maintains that while Prof. Hooke acknowledged in cross-examination
that she may have told Ms. Watson in the July 8th conversation that the extension
“makes sense to me”, that response did not constitute her consent. Additionally, the
Union emphasizes that Prof. Hooke testified that at no time during the July 8th
conversation or thereafter did she understand that Ms. Watson was asking for her
consent. Rather, she asserted that Ms. Watson was informing her of a decision that had
already been taken by the College to extend Mr. Miller’s probation period beyond the
two-year term ending on July 20, 2010. According to the Union, if a unilateral decision
had already been made to extend, the College clearly was not asking for the Union’s
consent for the extension in the July 8th conversation. Nor, the Union asserts, was there
agreement on an essential term of the extension, that being its length. On that basis, the
Union claims that there was no meeting of the minds to establish the required foundation
for an agreement to extend the probation period.
The Union submits that having not procured the Union’s agreement for the
extension in the July 8, 2010 telephone conversation, the College still could have done
so before the expiration of the probation period on July 20th when Ms. Watson met with
Professor Hooke on July 15th to discuss a July 15th Memorandum regarding Mr. Miller’s
extension. The Union emphasizes, however, that Ms. Watson failed to either seek or
obtain Prof. Hooke’s agreement at their July 15th meeting.
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The July 15, 2010 Memorandum was issued to Mr. Miller by Ms. Watson (copied
to Dean Skilton, Prof. Hooke and Mr. Bonczak) to document a meeting between Dean
Skilton and Mr. Miller that had taken place on July 13th. At the July 13th meeting, Mr.
Miller was advised of the extension of his probation period, was provided with the
reasons for it, was given the College’s expectations for improvement and was informed
about the support that he would be given to assist him in attaining the requisite
improvement. The Union stresses that nowhere does the comprehensive July 15th
Memorandum stipulate that the Union had consented to the extension of Mr. Miller’s
probation period.
The Union representative further observes that Prof. Hooke’s comment that the
July 15th Memorandum was “clear and well worded” does not constitute her consent to
the extension. Additionally, the Union claims that Prof. Hooke’s failure to object to the
extension, either in the July 15th meeting with Ms. Watson or after the extension was put
in place, is immaterial to the overriding fact that no agreement to extend was obtained
from the Union in the first place.
B. The College’s Position on Whether the Union’s Consent was Given for the
Extension:
As might be expected, the College’s perspective is somewhat different. The
College asserts that during the July 8, 2010 telephone call, Ms. Watson clearly stated
that she was “seeking the Union’s support” for the extension of Mr. Miller’s probation
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period. While Prof. Hooke did not recall her saying that, she acknowledged that it is
possible that she did.
It is common ground that during the call, Ms. Watson clearly explained to Prof.
Hooke that Dean Skilton was not prepared to move Mr. Miller to regular employee status
following the expiration of his two-year probation period and that, therefore, they were at
a crossroad. Ms. Watson advised Prof. Hooke that the College would have to either
terminate Mr. Miller before the expiration of his probation period or extend the probation
period to give him some additional time to attain the requisite improvement. Ms. Watson
stated that because Mr. Miller had demonstrated good teaching skills, the College’s
preference was to extend Mr. Miller’s probation period instead of terminating him before
its expiry on July 20th. According to Ms. Watson, Prof. Hooke responded to Ms.
Watson’s statement of the College’s preference for the extension with the comment,
“That makes sense to me.” Although Prof. Hooke did not recall making that comment,
she acknowledged that she could not dispute that she had.
Counsel for the College maintains that in the context of Ms. Watson, (1) advising
that she was seeking Prof. Hooke’s “support” for the extension, (2) setting out the
options and, (3) then stating that the College’s preference was to set up an extension of
the probation period, Prof. Hooke’s response of, “That makes sense to me” constitutes
her agreement to the extension.
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The College emphasizes that since Ms. Watson thought she had received Prof.
Hooke’s agreement to the extension in the July 8, 2010 call, there was no need for Ms.
Watson to ask for her consent again in their July 15th meeting. Regarding the term of the
extension, the College asserts that the July 15th Memorandum set the length of the
extension as running until the end of the fall term on December 17, 2010. The College
claims that if the Union had not agreed to that length, it could have objected in their July
15th meeting. It is common ground that in the July 8th conversation, Prof. Hooke raised
no objection to either of the two extension durations suggested by the College.
3. THE POSITION OF THE PARTIES REGARDING THE ASSERTION OF THE
COLLEGE THAT THE UNION IS ESTOPPED FROM RAISING AN OBJECTION
TO THE EXTENSION OF MR. MILLER’S PROBATION PERIOD:
A. The College’s Submissions on Estoppel:
Reflecting its arguments set out above in Section 2(B) of this Interim Award, the
College contends that during the July 8, 2010 telephone conversation, Prof. Hooke, on
behalf of the Union, made a clear and unequivocal representation to the College that
she agreed to the extension of Mr. Miller’s probation period.
Counsel further asserts that Prof. Hooke made that representation in a context
where she intended, or must be deemed to have intended, that her agreement would
affect their legal relations and that it would be relied on by the College to extend Mr.
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Miller’s probation period. The College claims that given that Ms. Watson specifically
requested Prof. Hooke’s support and made clear that if support was not forthcoming Mr.
Miller would be terminated before the end of his probationary period, it must be
concluded that in responding that the extension “makes sense”, Prof. Hooke not only
gave an unequivocal representation of agreement but also gave that endorsement in a
context where she would reasonably have known that it would be relied on by the
College to forbear from terminating Mr. Miller within his two-year probation term.
On that basis, counsel argues that because the College, in reliance on Prof.
Hooke’s representation of agreement, changed its legal position and acted to its
detriment by extending Mr. Miller’s probation period beyond the two-year term set down
in the collective agreement, the Union is estopped from now contesting either the validity
of the extension or Mr. Miller’s status as a probationary employee during the period of
the extension.
The College emphasizes that it was readily apparent to the Union that the
College was about to change its legal position to its detriment, both at the point of
extension on July 20, 2010 and at the point of termination on September 10, 2010. The
College maintains that the doctrine of estoppel required the Union to object in these
circumstances so that the College would have had an opportunity to take steps to
protect itself before it changed its legal position to its detriment.
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B. The Union’s Submissions on Estoppel:
The Union argues that an estoppel is not established simply because the College
assumed or acted on a belief that the Union had made a representation of consent to
the extension. In significant contrast to the position of the College, the Union maintains
that at no time did the Union make a representation, either by words or conduct, that it
was in agreement with the extension of Mr. Miller’s probation period or that it intended
such a representation to be relied on by the College to affect their legal relations. The
Union asserts that Ms. Watson never asked for Prof. Hooke’s consent in their July 8th
conversation and, instead, maintains that Ms. Watson’s purpose in the call was simply to
inform Prof. Hooke of a decision that the College had already taken to extend Mr.
Miller’s probation period.
Moreover, the Union claims that because the College did not clearly state that it
understood that the Union had agreed to the extension, the Union’s silence and lack of
objection in the face of the College taking steps to set in place the extension did not
constitute a representation that it agreed with the extension. The Union submits that until
the College made it clear that it understood that the Union had agreed to the extension,
the Union was under no obligation to respond or disagree.
By way of example, the Union contends that upon its receipt of the July 15th
Memorandum, which documented for Mr. Miller the details relating to the extension, the
Union was under no obligation to voice a disagreement with the extension because
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there was nothing in the July 15th Memorandum that stipulated that the Union had
agreed to the extension.
A meeting occurred between Ms. Watson and Mr. Bonczak when he returned
from vacation on or about September 3, 2010 during which Ms. Watson advised Mr.
Bonczak that the Union had agreed to the extension of Mr. Miller’s probation. The Union
claims that Mr. Bonczak had no reason to doubt Ms. Watson’s assertion that the Union’s
agreement had been given because Mr. Bonczak had not yet met with Prof. Hooke to
get debriefed about what had transpired in his absence. It is noted that Mr. Bonczak’s
testimony clarified that his debriefing with Prof. Hooke took place well before the
termination of Mr. Miller on September 10th.
More generally, the Union further submits that the Union was under no obligation
to contest the College’s assertion that Mr. Miller’s probation had been extended until the
dispute had crystalized, something the Union maintains did not happen until Mr. Miller
had been terminated.
4. THE JURISPRUDENCE:
The parties submitted jurisprudence to support their respective positions, all of
which has been reviewed by the Board and much of which is either readily
distinguishable on the facts or is of minimal relevance to the question in the instant
matter of whether either actual agreement or a representation of agreement was given
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by the Union for the extension of Mr. Miller’s probation period. Even Re Professional
Institute of the Public Service of Canada v. Winnipeg Regional Health Authority, [2004]
M.G..A.D. No. 3 (A. Peltz – arbitrator), a case the Union asserts is “on all fours” with the
instant matter, is distinguishable from the instant matter because in Re Winnipeg the
employer simply announced the extension of the probation period and did not seek a
response from the Union. It was in those significantly different circumstances that the
arbitrator determined that the Union’s silence did not constitute a representation of
agreement and did not raise an estoppel.
5. DECISION:
A. WHETHER THE UNION IS ESTOPPED FROM CONTESTING MR. MILLER’S
STATUS AS A PROBATIONARY EMPLOYEE AT THE TIME OF HIS
TERMINATION:
In Brown and Beatty, Canadian Labour Arbitration, third edition – April 2005,
(Canada Law Book Inc.) section 2:2211, The basic elements [of estoppel], at page 2-75,
the following description of estoppel and its requisite elements are set out as follows:
The concept of equitable estoppel is well developed at common law
and has been expressed in the following way [in Combe v. Combe,
[1951] 1 All E.R. 767 (C.A.) at p. 770]:
The principle, as I understand it, is that where one party has
by his words or conduct, made to the other a promise or
assurance which was intended to affect the legal relations
between them and to be acted on accordingly, then, once the
other party has taken him at his word and acted on it, the one
who gave the promise or assurance cannot afterwards be
allowed to revert to the previous legal relations as if no such
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promise or assurance had been made by him, but he must
accept their legal relations subject to the qualification which
he himself has so introduced, even though it is not supported
in point of law by any consideration, but only by his word.
One arbitrator has summarized the doctrine in the following terms
[in Canadian General Electric Co. (1971), 22 L.A.C. 149 (Johnston)
at pp. 150-51]:
It is apparent that there are two aspects to the doctrine as
thus stated. There must be a course of conduct in which both
parties act or both consent and in which the party who later
seeks to set up the estoppel is led to suppose that the strict
rights will not be enforced. It follows that the party against
whom the estoppel is set up will not be allowed to enforce his
strict rights if it would be inequitable to do so. The main
situation where it would be inequitable for strict rights to be
upheld would be where the party now setting up the estoppel
has relied to his detriment.
Thus, the essentials of estoppel are: a clear and unequivocal
representation, particularly where the representation occurs in the
context of bargaining; which may be made by words or conduct; or
in some circumstances it may result from silence or acquiescence;
intended to be relied on by the party to whom it was directed;
although that intention may be inferred from what reasonably should
have been understood; some reliance in the form of some action or
inaction; and detriment resulting therefrom.
In the context of this grievance, therefore, the questions may be put as follows:
First, whether the Union, through Acting President Prof. Hooke, during the July 8, 2010
telephone call between Prof. Hooke and Ms. Watson or through subsequent action prior
to the expiration of Mr. Miller’s two-year probation period on July 20, 2010, gave a
representation or assurance to Ms. Watson, or anyone else on behalf of the College
expressing the Union’s agreement to the extension of Mr. Miller’s probation period.
Second, whether that representation or assurance was intended to affect the legal
relations between the Union and the College and to be acted on accordingly; it being
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understood that that representation or assurance may be made by words or conduct,
and that in some circumstances it can result from silence or acquiescence; and it being
further understood that the intention that the representation or assurance will affect the
legal relations between the parties and be acted on accordingly may be inferred from
what reasonably should have been understood. Third, whether the assurance or
representation of agreement was relied on and acted on by the College in relation to Mr.
Miller’s probationary status; and fourth, whether that reliance and action was taken to
the College’s resulting detriment.
The July 8, 2010 telephone call between Ms. Watson, on behalf of the College,
and Professor. Hooke, on behalf of the Union, is central to the determination of the first
and second questions, as set out above. Evidence subsequent to the call becomes
relevant to the third and fourth questions referred to above. Having carefully considered
the evidence and the submissions of the parties on all matters, the Board draws the
following conclusions of fact relevant to the issue of estoppel:
1. The first finding of fact concerns the urgency of the July 8, 2010 conversation.
Prof. Hooke’s evidence establishes that she knew that the College considered
it urgent to discuss with the Union the extension of Mr. Miller’s probationary
period before its expiration.
2. Through its second finding of fact, the Board concludes that, contrary to the
testimony of Prof. Hooke, the College’s purpose in making the July 8th call
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was not to inform the Union of a decision to extend Mr. Miller’s probationary
period that had already been made by the College.
The assertion of Prof. Hooke that the purpose of the July 8, 2010 telephone
call, initiated by Ms. Watson, was for the College to inform Prof. Hooke of the
College’s decision to extend Mr. Miller’s probation period is fully denied by Ms.
Watson. Additionally, the purpose of the call, as alleged by Prof. Hooke, does
not reasonably flow from the undisputed portions of the conversation between
Ms. Watson and Prof. Hooke.
As both participants to the call testified, Ms. Watson went into detail about the
underlying rationale for an extension of Mr. Miller’s probation period, which
included: (a) that Dean Skilton was not willing to offer Mr. Miller regular
employment with the College at the conclusion of the probation period due to
his lack of adequate interpersonal skills, (b) that Dean Skilton was prepared to
extend the probation period because she believed Mr. Miller would be capable
of demonstrating the requisite improvement during an extension, (c) that
without such an extension, Mr. Miller would be terminated before the end of
his two-year probation period and, (d) that the College’s preference was to
give him an extension rather than terminate him before the end of his
probation period on July 20, 2010.
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It is noted that Prof. Hooke’s testimony that Ms. Watson stated in the call that
the College was “prepared” to extend the probation period is consistent with
the conclusion that the College had not yet made a decision to extend the
probation period. Moreover, Prof. Hooke testified that after Ms. Watson had
set out the College’s perspective of the situation, she asked Ms. Watson, in
order to clarify, “So James [Miller] will be fired if he doesn’t get this
extension?” The conditional nature of Prof. Hooke’s question is further
consistent with the conclusion that the decision of whether Mr. Miller’s
probation period would be extended had not yet been made.
An additional support for Ms. Watson’s denial that the College was simply
presenting the Union with a final decision that had already been made to
extend the probationary period is that her denial is consistent with the
uncontested conversations that had occurred between Dean Skilton and Ms.
Watson before the July 8th telephone call between Prof. Hooke and Ms.
Watson. The evidence establishes that the following communications
occurred between Dean Skilton and Ms. Watson before the call: (a) Dean
Skilton set out for Ms. Watson the two basic options she saw for Mr. Miller, as
detailed above, as well as her preference for the option of an extension. (b) In
response, Ms. Watson stressed to Dean Skilton that if the College wanted to
secure an extension of Mr. Miller’s probation period, it would need to obtain
the Union’s agreement for the extension before the expiry of his two-year
term, and (c) they agreed that the next step would be to contact Prof. Hooke,
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as the Acting President of the Union Local, to determine if the Union would
consent to an extension.
There is nothing in the evidence or submissions of the parties that raises any
question about the veracity of the evidence that these communications
transpired between Dean Skilton and Ms. Watson prior to the July 8th call.
Their exchange clearly revealed both the College’s understanding of the need
for the Union’s approval of an extension and the fact that the College’s
decision to extend was awaiting the Union’s agreement.
Similarly, a conclusion that the purpose of the July 8th conversation was to
obtain the Union’s agreement to the extension, as testified to by Ms. Watson,
is consistent with Ms. Watson’s actions shortly following the conversation. On
the evening of July 8th, Ms. Watson sent Dean Skilton an email setting out a
summary of the conversation that had taken place between herself and Prof.
Hooke, inclusive of the claim that she had obtained the Union’s agreement:
Hi Linda [Skilton]: I finally spoke to Suzanne Hooke
today … I explained the background and where you
are with James Miller. She is in agreement with your
request to extend his probation …
[emphasis added]
The stipulation in the email that Prof. Hooke had given her agreement to Dean
Skilton’s “request” for an extension is fully consistent with Ms. Watson’s
evidence that the purpose of the meeting was to determine if the Union would
agree to the extension, and is at odds with the Union’s assertion that the
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College had already made the decision to extend and was merely advising the
Union of a decision, a fait accompli.
Finally, it is further apparent that Ms. Watson’s recollection of the details of the
July 8th conversation was significantly clearer than that of Prof Hooke. On
numerous occasions regarding the substance of this conversation, Prof.
Hooke forthrightly stated that she could not recall what had been said, as set
out more specifically below. The Board does not for a moment conclude that
Prof. Hooke was intending to mislead the Board. We are fully satisfied that
she gave her testimony with the utmost integrity and to the best of her
recollection.
On the point concerning the purpose of the conversation on July 8th, however,
the Board, for the reasons set out, declines to adopt the evidence of Prof.
Hooke that the purpose of the call was to inform Prof. Hooke of a decision to
extend that had already been made by the College and prefers, instead, the
credible evidence of Ms. Watson that a decision on an extension had yet to be
taken. As stated, Ms. Watson’s evidence was consistent with evidence
regarding the lead up to the conversation between Ms. Watson and Prof.
Hooke, is more consistent within the surrounding, undisputed parts of the
telephone call itself and was consistent with the email written the same day by
Ms. Watson to Dean Skilton recounting the conversation.
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In all of these circumstances, the Board finds that the testimony of Ms.
Watson that the College had not made a final decision regarding the
extension going into the July 8, 2010 conversation between Ms. Watson and
Prof. Hooke bears the ring of truth while Prof. Hooke’s assertion that the
College came into the conversation with a decision already in place runs
counter to the probabilities revealed by the evidence.
We note that it is this finding of fact that the College did not simply announce
its decision to extend the probation period to the Union that distinguishes this
matter from the case of Re Winnipeg Regional Health Authority, supra, that
was advanced by the Union as being particularly persuasive.
3. The third finding of fact establishes that the purpose of the conversation was
to the enable the College to obtain the Union’s support for an extension of Mr.
Miller’s probationary period.
The Board accepts Prof. Hooke’s assertion, acknowledged by Ms. Watson,
that in the July 8th telephone call Ms. Watson did not say to Prof. Hooke,
expressly, that she was seeking the Union’s “consent” to the extension. The
Board further accepts, however, the veracity of Ms. Watson’s clear and
convincing evidence that what she did say to Prof. Hooke, after briefing her on
the background of Mr. Miller’s circumstances, was that although the College’s
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preference was to extend Mr. Miller’s probationary period, it “needed” and was
“seeking the Union’s support” for an extension.
While Prof. Hooke testified that she did not remember Ms. Watson stating that
she was “seeking the Union’s support”, she did not dispute it and, moreover,
expressly acknowledged that it was possible that Ms. Watson had made that
statement. Having acknowledged that Ms. Watson may have said that she
was seeking her support for an extension, Prof. Hooke asserted that there is a
subtle difference between “support” and “consent” and that if Ms. Watson had
used the word “support”, she would not have understood from that that she
was seeking the Union’s “consent”.
Given the credibility of Ms. Watson’s testimony that she said that she was
“seeking the Union’s support” for an extension, given that Prof. Hooke
acknowledged that Ms. Watson may have made that statement, and given the
sharp distinction Prof. Hooke drew between the words, “consent” and
“support”, the Board concludes that Ms. Watson expressly stated to Prof.
Hooke in the July 8th conversation that she was “seeking the Union’s support”
for an extension of Mr. Miller’s probation period.
4. The fourth finding of fact determines what Prof. Hooke understood by Ms.
Watson’s statement that she was seeking the Union’s support for the
extension.
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In the Oxford Dictionary and Thesaurus, 2007, second edition, Oxford
University Press, “support” is included in the list of synonyms for “consent”.
Moreover, included among the synonyms for “support” are, “endorsement”,
“approval” and “vote”.
Accordingly, by understanding that the College was seeking the Union’s
support, the Board concludes that Prof. Hooke either understood or must be
deemed to have understood, the plain meaning of the word, “support”, even if
she did not believe that “support” would include “consent”. Given the plain
meaning of the word, “support” as used in the conversation that was
transpiring between Prof. Hooke and Ms. Watson on July 8th, the Board must
conclude that Prof. Hooke either understood, or must be taken to have
understood, that the College was seeking either the Union’s “endorsement” of,
“approval” of, or “vote” for the extension, which we further conclude, in the
context of the July 8th conversation, may include or reflect the concept of,
“agreement” to the extension.
Accordingly, for the reasons set out, the Board finds that Prof. Hooke either
understood, or must be deemed to have understood, that Ms. Watson was
seeking her endorsement of, approval of or agreement to the extension of Mr.
Miller’s probation period.
24
5. The fifth finding of fact determines what Prof. Hooke’s response was to the
options presented by Ms. Watson in the July 8, 2010 telephone conversation.
Ms. Watson testified that after she set out for Prof. Hooke the options for Mr.
Miller, along with the reasons for them, after she detailed two possible
timeframes for the extension and after she stated that the College’s
preference was to give Mr. Miller an extension of his probation instead of
terminating him before the end of his two-year probation period, Prof. Hooke
replied with words clearly and directly to the effect of, “That makes sense to
me.”
Ms. Watson’s evidence that Prof. Hooke replied, “That makes sense to me”, is
fully consistent with the email communication Ms. Watson sent to Dean
Skilton shortly following the conversation in which she stated, “Hi Linda: I
finally spoke with Suzanne [Hooke] today … She is in agreement with your
request to extend his probation…”
When the accuracy of this alleged response was put to Prof. Hooke in cross-
examination, Prof. Hooke replied that she could not recall whether that was
her response, but she could not dispute that it was.
25
Given that Ms. Watson’s evidence on the alleged response was clear and
convincing and given that Prof. Hooke not only declined to dispute it but also
acknowledged that it was possible that she gave that reply, the Board finds
that Prof. Hooke’s response to Ms. Watson’s request for the Union’s “support”
for the extension of Mr. Miller’s probation period was that, “That makes sense
to me.”
6. The sixth finding of fact interprets Prof. Hooke’s response of, “That makes
sense to me”.
The lead-up to Prof. Hooke’s response, “That makes sense to me” was, first,
that Ms. Watson stated that she was seeking Prof. Hooke’s “support” for the
extension of Mr. Miller’s probation period, and, second, that Ms. Watson had
voiced the College’s clear preference for an extension of Mr. Miller’s probation
period over the alternative, which was his termination prior to the end of his
two-year probation period, as detailed above.
Having regard to the plain meaning of the word, “support”, as set out above, in
the context of a situation where one party to the collective agreement was
seeking the “support” of the other to extend the two-year term of a probation
period set out the collective agreement, the Board is satisfied that by saying,
“That makes sense to me”, Prof. Hooke, as Acting President of the Local, with
26
all the authority to do so, was giving to the College her “support” for the
extension that the College had requested.
While Prof. Hooke maintained that she did not understand that she was giving
her “consent” on behalf of the Union, she must be taken to have understood
that she was giving her “support”. She never denied that understanding and,
in any event, she must be taken, in her position of Acting President, as being
responsible for understanding the plain meaning of the words that both she
and Ms. Watson used in what she acknowledged was a very important and
urgent conversation between herself and Ms. Watson.
Additionally, Prof. Hooke readily acknowledged that she did not voice any
objection to the College’s clearly expressed preference for the extension. Nor,
according to Ms. Watson’s credible and undisputed evidence, did Prof. Hooke
state that she needed to consult with or contact anyone from the Union to
finalize the extension. There was no suggestion that either participant in the
conversation anticipated any further discussion on the question of the
extension itself.
In these circumstances, the Board concludes that when Prof. Hooke, as
Acting President of the Union, replied, “That makes sense to me”, she not only
gave, but also understood that she was giving, her “support” for the extension
of Mr. Miller’s probation period. Moreover, as set out above, synonyms for
27
“support” include “endorsement”, “approval”, and “vote” and, in the context of
the July 8th conversation, reflect the concept of agreement. Accordingly,
having regard to the plain meaning of the word “support”, the Board’s
determination that Prof. Hooke understood that she was giving her “support”
for the extension is to further conclude that she understood that she was
giving her “endorsement” of, “approval” of, “vote” for or “agreement” to the
extension of Mr. Miller’s probation period.
7. The seventh finding of fact determines whether Prof. Hooke intended that the
giving of her endorsement or agreement, on behalf of the Union, for the
extension of Mr. Miller’s probation period would affect the legal relationship
between them.
Prof. Hooke was aware that she was involved in an urgent conversation with
Ms. Watson about the fate of Mr. Miller’s continued employment at the
College. She understood that the two-year term for probation periods was set
down in the collective agreement. She was apprised of the fact that but for an
extension, Mr. Miller would be terminated before the end of his two-year
probation period. She was aware that with the extension, he would not be
terminated on or before July 20, 2010 and would continue to be employed as
a probationary employee under an extended probation period that would last
until December 17, 2010, the end of the fall term. Additionally, she had been
28
advised that the next step following the telephone conversation was that a
meeting would be set up with Mr. Miller to advise him of the extension. It is
noted that in cross examination, Prof. Hooke acknowledged that contrary to
her testimony in-chief, Ms. Watson was actually correct when she asserted
that she had not told her in the July 8th conversation that Mr. Miller already
knew about the extension.
Prof. Hooke was the current Vice-President of the Local and had been so for 5
years. Prior to that, she had been the chief steward for over a year and the
Treasurer for four years. Clearly, she was experienced in Union/College
affairs and the operation of the collective agreement, even if she had not
previously been involved in the extension of a probationary period.
It appears that the extension of a probationary employee had only happened
once before, in 2008. The probation period of that employee was extended for
a short period and the consent of the Union was put in writing in a
Memorandum of Agreement that was expressly made “without prejudice or
precedent”. The undisputed evidence of Prof. Hooke was that she had no
participation in or knowledge of the prior circumstance of extension.
Accordingly, the Board concludes, consistent with Prof. Hooke’s own
testimony, that she had no expectation that the consent or support from the
Union for an extension for Mr. Miller would necessarily be put in writing.
29
The Board concludes that in her position of Acting President of the Local, with
the undisputed authority to act on behalf of the Union and affect the legal
relations between the College and the Union with her verbal agreement, Prof.
Hooke either intended, or must be deemed to have intended, to validate the
extension of the probationary period beyond the two-year limit in the collective
agreement, knowing that once that was done, the College would forbear from
terminating Mr. Miller before the expiry of his two-year probation period and,
instead, would continue to employ him as a probationary employee under the
framework of the extension.
The Board’s conclusion that Prof. Hooke, on behalf of the Union, intended or
understood that the College would act on its representation of support for or
agreement to the extension of Mr. Miller’s probation period is both confirmed
and heightened by Prof. Hooke’s reaction, noted below, to the July 15th
Memorandum that Ms. Watson sent to Mr. Miller (copied to Prof. Hooke, Mr.
Bonczak and Dean Skilton) documenting the details of discussion that had
transpired between Mr. Miller, Dean Skilton and Ms. Watson on July 13th. In
the July 13th meeting, Dean Skilton had advised Mr. Miller of the extension of
his probation period until December 17, 2010, the reasons for it as well as the
plan designed for him reach to the requisite improvement. The July 15th
Memorandum further confirmed that while the Union was unable to attend the
July 13th meeting, the decision to extend the probationary period had been
discussed in advance with the Union through Prof. Hooke.
30
On or about July 15th, Ms. Watson and Prof. Hooke discussed the July 15th
Memorandum. In cross-examination, Prof. Hooke acknowledged as being
“possible” Ms. Watson’s testimony that Prof. Hooke’s comment about the
Memorandum was that it was “clear and well worded”. She further
acknowledged that in their discussion of the Memorandum, she did not object
to the fact that the College was proceeding with the extension of the
probationary period. Nor did she suggest that she needed to discuss the
extension with anyone else from the Union.
It is apparent on the face of the July 15th Memorandum that the College
considered that Mr. Miller’s continued employment through December 17,
2010 would be as a probationary employee. The Memorandum makes
patently clear that the College intended to act on the agreement given by Prof.
Hooke in the July 8th conversation by stating, expressly, that it was extending
Mr. Miller’s probation period. Had Prof. Hooke not intended the College to so
act or had she disapproved of the College so acting, Prof. Hooke could have
expressed that intention or disapproval in her reaction to the Memorandum,
while Mr. Miller was still within his two-year probation term and the College
still would have been able to terminate him during his original two-year term.
Far from so objecting, however, Prof. Hooke commented to Ms. Watson that
the Memorandum was “clear and well worded”.
31
In the Board’s assessment, the reasonable conclusion from all of these
circumstances is that Prof. Hooke, on behalf of the Union, either intended or
must be deemed to have intended, that the College would act on the strength
of her representation of “support” for the extension.
8. The final question is whether the College acted to its detriment by relying on
the representation of the Union, which, in this case, was the giving of its
agreement to the extension of Mr. Miller’s probation period beyond the two-
year term covered by the collective agreement.
The answer to that inquiry is clearly “yes”, the College did act to its detriment
in two fundamental ways. First, on the strength of the Union’s representation
of agreement to the extension, the College declined to terminate Mr. Miller
within the two-year term of the probationary period and continued to employ
him thereafter under the framework of the extension. Second, on the further
endorsement of the Union’s agreement, the College terminated Mr. Miller, as
a probationary employee during the extension period. In respect of both of
these pivotal decisions, the College, operated openly on the undisputed
stipulation that Mr. Miller remained a probationary employee and that it was
entitled to terminate his employment during the period of the extension with 90
calendar days’ notice, pursuant to article 27.02 E of the collective agreement
covering the release of probationary employees.
32
By the very act of continuing to employ Mr. Miller beyond July 20, 2010, the
College acted to its clear detriment because, as of July 21, 2010, Mr. Miller
was outside the official two-year term of the probation period set down in the
collective agreement. At that point, but for the extension, Mr. Miller would
have become entitled to the rights of a regular, non-probationary employee as
set out in the collective agreement, one of the most crucial of which is the right
of a regular employee to be terminated only for just cause.
While detriment for the College was triggered by the very act of declining to
terminate Mr. Miller within the two-year term of the probation period, i.e. on or
before July 20, 2010, the degree of detriment increased as time progressed
and culminated in the College’s decision to terminate Mr. Miller on September
10, 2010.
Mr. Bonczak, as President of the Local, elevated the degree of detriment
experienced by the College through his inaction upon his return from vacation
at the end of August. Ms. Watson testified, and the Board accepts, that on or
about September 3, 2010, during their first encounter upon his return, Ms.
Watson advised Mr. Bonczak of her July 8th discussion with Prof. Hooke
regarding Mr. Miller’s circumstances and, most critically, stated that Mr.
Miller’s probationary period had been extended on the Union’s consent.
33
Mr. Bonczak has little recall of the details of this exchange with Ms. Watson
but he did not dispute the account given by Ms. Watson. He agreed,
expressly, that Ms. Watson told him that the Union had consented to the
extension. The uncontested evidence of Ms. Watson establishes that Mr.
Bonczak’s response to Ms. Watson’s account of the extension of Mr. Miller’s
probation period was that he had just returned from vacation, that he had not
yet been updated on Mr. Miller’s situation but that he would soon be getting a
debriefing from Prof. Hooke.
Shortly thereafter, Mr. Bonczak received a detailed debriefing from Prof.
Hooke. He acknowledged, however, that he did not specifically ask Prof.
Hooke whether she had consented to the extension. He stated that he trusted
her and assumed that the extension had been done according to due process,
i.e. that it had been consented to. Mr. Bonczak agreed on cross-examination
that it was not until after Mr. Miller was terminated and the grievance was in
preparation that he specifically asked Prof. Hooke whether she had consented
to the extension. She replied that she had not.
Mr. Bonczak’s silence in the face of Ms. Watson’s express assertion that Prof.
Hooke had consented to the extension, in circumstances where he had the
opportunity to discuss the issue of consent in the debriefing from Prof. Hooke
that took place shortly after his conversation with Ms. Watson, constitutes, the
Board finds, a repetition or confirmation of the representation given by Prof.
34
Hooke on July 8, 2010 that the Union had agreed to the extension of Mr.
Miller’s probation period.
Further conduct from Mr. Bonczak in the form of his further silence and lack of
objection leading up to and inclusive of the termination of Mr. Miller,
encouraged the College to pursue its course, to its detriment, as it took its
final step of terminating Mr. Miller on September 10, 2010, on the openly
stated assumption by the College that Mr. Miller was a probationary
employee.
Mr. Bonczak acknowledged that, in all likelihood, Ms. Watson advised him
prior to the termination of Mr. Miller that the College was going to be releasing
him. Even at that point, when Mr. Bonczak was aware of the pending
termination, he took no step to consult with Prof. Hooke on the question of
whether she had given consent, i.e. whether the extension was valid. Had he
put the College on notice, at that point, of the Union’s contention that the
extension was not valid and that Mr. Miller had actually become a regular
employee on July 21, 2010, the College could have taken measures to protect
itself. The College could have decided whether it wanted to take additional
steps to enable it to act consistently with the requirements of the collective
agreement for regular employees, even if it still went ahead with the
termination.
35
At the termination meeting itself, attended by Dean Skilton, Ms. Watson, Mr.
Miller and Mr. Bonczak, Dean Skilton advised Mr. Miller of the College’s
decision to terminate him. Mr. Bonczak agreed on cross-examination that it
was clear that the College was purporting to terminate him as a probationary
employee who had the right only to 90 calendar days’ notice and certainly not
to a just cause standard of review.
Mr. Bonczak agreed that, even at that point, he still raised no objection to the
validity of the extension. Not only did he not object to the extension or to the
fact that the College openly considered Mr. Miller to be a probationary
employee but also the objection he did raise was based on the premise of a
validly extended probation period. He complained that the College was
terminating Mr. Miller before the College had implemented all of the
commitments the College had made in the July 15th Memorandum to help Mr.
Miller make the requisite improvements as a probationary employee so that
he could attain regular employee status.
Accordingly, following not only an absence of objection from Mr. Bonczak to
Mr. Miller’s status as a probationary employee but also the presence of an
objection from Mr. Bonczak based on Mr. Miller’s status as a probationary
employee, both of which would reasonably cause the College to conclude that
the Union harboured no questions about the validity of the extension, the
College finalized the termination of Mr. Miller on the basis of his status as a
36
probationary employee. It provided him only with 90 days’ pay in lieu of notice,
culminating in the height of its detrimental reliance on the representation of
agreement to the extension that the Board has found was first given by Prof.
Hooke on July 8, 2010.
The Board notes that when Mr. Bonczak was asked whether he believed the
extension was in Mr. Miller’s best interest, his response was simply that he
would have wanted a shorter time frame.
In the result, on the foregoing grounds, the Board concludes that the Union is
estopped from raising an objection to the termination of Mr. Miller on the basis that he
was not a probationary employee at the time of his termination. The Board has
concluded, for the reasons set out, that the College has established all of the requisite
elements to properly advance its claim of estoppel:
- First, the Union, through Prof. Hooke, as Acting President, by her words
spoken to Ms. Watson on July 8, 2010, represented to Ms. Watson, on behalf
of the College, that she was in support of the College’s expressed preference
to extend Mr. Miller’s probation period and, thereby, gave a representation of
agreement to the extension of Mr. Miller’s probation period beyond the
termination of its two-year term on July 20, 2010.
37
- Second, this representation of agreement to the extension was intended, or
must be deemed to have been intended, by Prof. Hooke to affect the legal
relations between them, knowing that on the strength of the Union’s
agreement to the extension, the College intended to forbear from terminating
Mr. Miller within the original two-year probation period set down in the
collective agreement and to continue to employ Mr. Miller through the
framework of the extended probation.
- Third, the College relied and acted on the Union’s agreement to the extension.
Initially, it did so by declining to terminate Mr. Miller before the conclusion of
his two-year probation period on July 20, 2010, which, as was established
beyond doubt, it would have done but for the Union’s representation of
agreement to the extension. Subsequently, the College further relied on the
Union’s representation of agreement to the extension by terminating Mr. Miller
on September 10, 2010, during his extended probation period, on the basis of
his status as a probationary employee and provided him with pay in lieu of 90
calendar days’ notice.
- Fourth, the College’s significant steps in reliance on the Union’s
representation of agreement to the extension, altering its legal position, as set
out above, were taken to its detriment. But for a valid extension to the two-
year probation period, one based on the Union’s agreement, the continuation
of Mr. Miller’s employment after July 20, 2010 would have been as a regular
38
employee entitled to, among other matters, a review of his release on a
standard of just cause.
B. IN THE ALTERNATIVE, WHETHER THE UNION AGREED TO THE EXTENSION:
In the alternative, even if the Board had not found that the equitable doctrine of
estoppel applied to preclude the Union from contesting Mr. Miller’s status as a
probationary employee at the time of his termination, the Board would have concluded,
in any event, that the Union, through Prof. Hooke, as Acting President, gave the College
the Union’s agreement to the extension of Mr. Miller’s probation period beyond its two-
year term ending on July 20, 2010.
For reasons referred to above with respect to the issue of estoppel, the Board
concluded that the Union, through Acting President Hooke, agreed to the extension of
Mr. Miller’s probation period.
First, the Board determined that in their conversation on July 8, 2010, Ms.
Watson advised Prof. Hooke that she was “seeking the Union’s support” for an
extension of Mr. Miller’s probation period.
Second, the Board concluded that Prof. Hooke replied with words clearly and
directly to the effect of, “That makes sense to me”, in the following context: after Ms.
Watson had set out the College’s determination that it would terminate Mr. Miller before
the expiration of his probation period unless it could extend Mr. Miller’s probation period
39
to provide him with time to improve the deficiencies in his interpersonal skills, and after
Ms. Watson stated that the College’s preference was for extending the probation period
over terminating him prior to the expiry of its two-year term.
Third, based on the foregoing exchange, and for reasons fully detailed above, the
Board determined that by saying, “That makes sense to me”, Prof. Hooke was giving
Ms. Watson the “support” she had requested for the extension.
Fourth, while Prof. Hooke stated that she never understood that she was giving
her “consent” to the College, she did, we conclude, understand, or must be deemed to
have understood, that she was giving her “support” to the College’s preference for
extending Mr. Miller’s probation period over terminating him prior to the conclusion of the
two-year probation period. For further reasons detailed above, the Board has concluded
that by providing her “support” for the extension, Prof. Hooke either did intend, or must
be deemed to have intended, that the word, “support” would bear its plain and natural
meaning. As set out above, a synonym for “consent” is “support” and synonyms for
“support” include “endorsement” of, “approval” of and “vote” for. The Board is satisfied
that in the context of the July 8th conversation, the plain meaning of giving her “support”
for the extension was that she was conveying her “agreement” to the extension.
Accordingly, for the reasons set out, the Board concludes that Prof. Hooke clearly
and unequivocally gave the College the Union’s agreement to the extension of Mr.
Miller’s probationary period.
40
In the result, the Board finds that on the basis of the Union’s agreement to the
extension of his two-year probation period, which was in effect at the time of his
termination on September 10, 2010, Mr. Miller was a probationary employee at the point
of his release from the College on September 10, 2010.
On the basis of the foregoing, the Board has determined, first, that the Union is
estopped from raising an objection to Mr. Miller’s status as a probationary employee at
the time of his termination on September 10, 2010 and, second, that, in any event, the
Union agreed to the extension of his probation period, which was still in effect at the
point of his termination on September 10, 2010.
Accordingly, the hearing of Mr. Miller’s grievance against his termination will be
based on his status as a probationary employee at the time of his release.
Dated at Ottawa this 4th day of March, 2013.
“Pamela Cooper Picher”
Pamela Cooper Picher
Chair
s.c.
I concur. “Richard O’Connor”
Richard O’Connor
College Nominee
I dissent for reasons “Larry Robbins”
set out below: Larry Robbins
Union Nominee
41
DISSENT OF UNION NOMINEE, LARRY ROBBINS
I have reviewed the Award of the chairperson in this matter and with the greatest of
respect must dissent therefrom. I would have found that Mr. Miller was no longer a
probationary employee at the time of his release.
I would start by noting that the probationary period in this collective agreement is already
unusually long, two years’ continuous employment. The rights of a probationary
employee particularly upon termination are without a doubt much more limited than
those of a permanent employee with seniority. The agreement makes no mention of any
extension of the probationary period, even upon agreement of the parties, so it was not
something contemplated by those who negotiated this agreement.
Nevertheless the Employer and the Union can still make such an agreement, just as
they have the right to vary any provision of the collective agreement upon mutual
consent. However, in my view, when such an agreement is made, which in this case
extended Mr. Miller’s probationary period to approximately 2 ½ years, there should be
no room for ambiguity.
The parties had reached such an agreement to extend a probationary period in the past,
namely with respect to Prof. Brian McIllhargy. It was put in writing and was signed by
both parties, with the terms of that extension clearly set out. Moreover, Ms. Lynne
Watson, who was the Human Resources representative involved in the case at hand,
had played a role in the McIllhargy extension. It is very surprising that a similar
procedure was not used in this case.
This has left the Board with the unenviable task of reviewing what was a short
conversation that took place by telephone on July 8, 2010, while Ms. Watson was on a
camping trip. Neither party to this conversation took notes, and we were hearing
evidence some two years later. It was not surprising that there was some conflict in the
evidence.
42
I appreciate that Ms. Watson felt that based on that conversation with Prof. Hooke she
had an agreement, and that she acted based on that assumption. Nevertheless, from
Prof. Hooke’s viewpoint, her consent to the extension was neither solicited nor was it
given. Ms. Watson was simply discussing the matter with her but not specifically asking
for the Union’s consent. She indicated that had she been asked for her agreement, she
would have at the very least checked the matter out with her colleague, Prof.
Mathewson. Finally when it was suggested to her by Prof. Bonczak that she had
consented to the extension, she testified that she was shocked to hear that.
What occurred here was clearly in my view a mis-communication, where the two parties
to this short telephone call had a very different view of what took place, and that’s hardly
surprising.
Prof. Hooke testified that it was not a great connection from her end, i.e. – that the
reception was poor.
It is significant that Prof. Hooke had never been involved in the extension of a
probationary period for a faculty member before, and she testified that she was not
familiar with the process. From her point of view the College was doing due diligence in
informing her of the matter in advance but not asking for her consent.
The chairperson devotes a great deal of attention to this conversation, but essentially
focuses only on two phrases which appeared in the evidence of Ms. Watson: namely,
the statement that Ms. Watson testified she said to Prof. Hooke that she “was seeking
her support” and the statement that she recalled Prof. Hooke making that “that made
sense”. When Prof. Hooke gave her best recollection of what took place during evidence
in chief, neither of those two statements were part of the call. It is true that in cross
examination she did state that it was possible that those statements had been made.
But when one looks at her cross examination as a whole it is consistent with her view
that her consent was not being requested. Note the following:
“It was not reasonable to assume she had my consent since I was never asked.”
43
“I was told what Management was going to do and there was no reason to
believe consent was being sought.”
“Had I believed my consent was necessary I would not have given it without
checking with E. Mathewson.”
“I know she never led me to believe the Union’s consent was required.”
“At no point did I feel that was being requested of the Union.”
“I believed they were telling me, not asking me, and me = the Union.”
“I didn’t have an objection or no objection. I was being told.”
In the Award, the chairperson makes a number of findings of fact, based almost entirely
on the two phrases referred to above. I would have placed more emphasis on the totality
of Prof. Hooke’s evidence. I can concur however with many of the chairperson’s findings
with respect to what Ms. Watson intended and understood from the conversation. But I
have a great deal of difficulty with her findings with respect to what Prof. Hooke
intended. For example, her fourth finding of fact that Prof. Hooke understood that Ms.
Watson was seeking her agreement for the extension. That’s patently wrong. Her
evidence was quite the opposite. That’s why the chairperson has to put in the alternative
that “she must be deemed to have understood”, which I still would not agree with on the
evidence. For similar reasons I would strongly disagree with her seventh finding of fact,
that Prof. Hooke intended to affect the legal relationship between the parties.
A better view in my opinion is that this was a huge misunderstanding between Ms.
Watson and Prof. Hooke, which was created by the ambiguous nature of the telephone
call. Furthermore, the misunderstanding was magnified by two other factors. First of all,
the decision to hold the extension meeting with Mr. Miller alone on July 13th without any
Union representative was very surprising. Why was it so essential to hold the meeting
on July 13th, on one of the very few days when Prof. Hooke was away on vacation? A
face to face meeting between Ms. Watson and Prof. Hooke in the presence of Mr. Miller
could have cleared up any misunderstanding.
44
Secondly, we have the wording of the July 15th memo from Ms. Watson to the grievor,
which Prof. Hooke is copied on. In that memo it states:
“I would note that attempts were made to have a union member present, but due
to summer vacation schedules, this was not possible, however the decision was
discussed with the union Acting President, Suzanne Hooke, in advance.”
It is interesting that her phraseology appears to confirm Prof. Hooke’s understanding of
what in fact took place during the July 8th telephone conversation. It is very hard to
understand why the memo didn’t use words to the effect that “the union Acting President
had agreed with the decision to extend the probationary period”.
In conclusion, there was a clear mis-communication here between the parties in the
telephone call which took place on July 8th. While both parties acted in good faith, this
failure in communication was largely the fault of the Employer. Ms. Watson clearly knew
the procedure to extend a probationary period as she was involved in the previous
extension involving Prof. McIllhargy. Even if it was necessary to begin the discussions
by telephone, there was ample opportunity to have a follow up meeting with Prof. Hooke
prior to the critical date of July 20/10, and remove any doubt that there was an agreed
upon extension of the probationary period between the parties.
For all of these reasons, I would have found that there was no agreement to extend Mr.
Miller’s probationary period. I would have also found that there was no representation
from the Union which could have properly formed the basis of an estoppel. As a result I
would have concluded that Mr. Miller was a permanent employee at the time and that
the just cause standard should apply.
DATED AT TORONTO, this 4th day of March, 2013.
“Larry Robbins”
Larry Robbins
Union Nominee