HomeMy WebLinkAboutMerlino 14-05-28IN THE MATTER OF AN ARBITRATION
BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION,
LOCAL 244
(the "Union")
SHERIDAN COLLEGE OF APPLIED ARTS AND TECHNOLOGY
(the "College ")
AND IN THE MATTER OF THE GRIEVANCES OF DENISE MERLINO:
LAYOFF GRIEVANCE (OPSEU 42013- 0244 -0003) AND
RETRAINING GRIEVANCE (OPSEU #2013 -0244- 0005)
(ACADEMIC)
BOARD OF ARBITRATION
COUNSEL:
For the Union
Robert D. Howe, Chair
Sherril Murray, Union Nominee
Ann E. Burke, College Nominee
Rehecca Stulberg
Tor the College Daniel Michaluk
P R E L I M I N A R Y A W A R D
The hearing of this matter was originally scheduled
to take place on December 4, 2013, but was adjourned to
January 21, 2014, on the agreement of the parties. On
that rescheduled date, counsel agreed that the College's
preliminary objection should be heard in writing. In
accordance with that agreement, an Agreed Statement of Facts
for Preliminary Objection (the "Agreed Facts ") was filed on
March 10, 2014, along with the College's submission on the
preliminary objection, followed by the Union's submission
(which was filed on April 1, 2014), and the College's reply
submission (which was filed on April 14, 2014). For ease of
reference, a copy of the Agreed Facts is appended to this
award, along with copies of those written submissions. Also
appended are copies of the lay -off grievance, the referral of
that grievance to arbitration, and their attached lists. (The
contents of the other tabs referred to in the Agreed Facts
have not been appended.)
The Lay -off Grievance
Having duly considered the Agreed Facts and documents
referred to therein, as well as the aforementioned written
submissions and the cases to which they refer, we have
concluded that the lay -off grievance must be dismissed, for
the following reasons.
Article 27.08 of the parties' collective agreement
(the "Agreement ") provides as follows:
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Lay-Off Grievances
27.08 A An employee claiming improper lay -off,
contrary to the provisions of this Agreement,
shall state in the grievance the positions
occupied by full -time and non -full -time
employees whom the employee claims entitlement
to displace. The time limit referred to in
32.01 for presenting complaints shall apply
from the date written notice of lay -off is
given to the employee.
27.08 B If the grievance is processed through Step 2,
the written referral to arbitration in 32.02
shall specify, from the positions originally
designated in 27.08 A, two full -time
positions, or positions occupied by two or
more partial -load or part -time employees (the
sum of whose duties will form one full -time
position), who shall thereafter be the subject
matter of the grievance and arbitration. The
griever shall be entitled to arbitrate the
grievance thereafter under only one of (i),
(ii), (iii), (iv), (v), (vi), or (vii)
of 27.06 A.
The grievor seeks to arbitrate her lay -off grievance
under Article 27.06A(iv), which provides:
Failing placement under paragraph 27.06 A (iii),
such employee shall be reassigned to displace two
partial -load employees provided that:
(a) the displacing employee has the competence, skill
and experience to fulfill the requirements of the
position concerned; and
(b) each of the the partial -load employees being
displaced has lesser months of service with the
College as determined under Article 26,
Partial -Load Employees, than such displacing
employee's months of seniority; and
(c) It is understood that the College retains the
right to assign additional work to the employee,
where warranted, subject to the limits prescribed
by Article 11, Workload.
Article 27.08A requires an employee claiming improper
lay -off to "state in the grievance the positions occupied by
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full -time and non -full -time employees whom the employee claims
entitlement to displace ". Where, as in the instant case, the
employee seeks to have such a grievance arbitrated under
Article 27.06A(iv), Article 27.08B requires that the written
referral to arbitration specify, from the positions originally
designated in 27.08A, positions occupied by two or more
partial -load employees (the sum of whose duties will form one
full -time position), who shall thereafter be the subject
matter of the grievance and arbitration.
In OPSEU and George Brown College (Grievance of
Giovanni de Simone: OPSEU #94A770/94A767), unreported award
dated December 29, 1995, the majority of an arbitration board
chaired by Arbitrator Burkett found the requirements of
Articles 27.08A and B to be procedural provisions which could
be waived. However, in the preponderance of awards under a
succession of collective agreements governing academic staff,
that approach has not been applied, and the identification
requirements set forth in those provisions have consistently
been found to be mandatory substantive requirements which
cannot be waived: see, for example, Re Fanshawe College and
O.P_S.E.U. (1987), 6 C.L.A.S. 6 (Weatherill); OPSEU and
Canadore College (Grievance of Frank Mueck), unreported award
dated December 12, 1996 (MacDowell); Re Fanshawe College and
O.P.S.E.U. (1997), 48 C.L.A.S. 351 (Simmons), application for
judicial review dismissed in Ontario Public Service Employees
Uion v. Fanshawe College, [1998] O.J. 4243 (Div. Ct.); Re
Seneca College of Applied Arts and Technology and O.P.S.E.U.
3
(1998), 51 C.L.A.S. 32 (H.D. Brown); Re Fanshawe College and
O.P.S.E.U. (1999), 58 C.h.A.S. 228 (Kaplan); OPSEU and George
Brown College (Grievance of G. Waffle), unreported award dated
December 24, 1999 (Howe); and Sault College and OPSEU
(Crievances of Jason Von Slack, unreported award dated March
30, 2014 (H.D. Brown) .
As noted in a number of those cases, the contract
language in question has been maintained for many years,
without material change, over numerous rounds of bargaining.
Had the parties wished to avoid that interpretation, they
could have amended that language. However, this has not
occurred. Although the parties have changed the wording from
"persons" to "positions ", that change had no effect on the
mandatory substantive nature of the provisions' requirements.
In this regard reference may usefully be made to the following
passage from Arbitrator Simmons' majority award in Re Fanshawe
College and O. P. S. E. U., supra:
[14] Accordingly, we are of the view that the Macdowell
board in Canadore [OPSEU and Canadore College
(Grievance of Frank Mueck), supra] is diapositive of
the issue that is before us. In referring to the Shime
decision of St. Lawrence College [St. Lawrence College
and On tar'i o Public Service Employees Union (Brown) ,
unreported award dated February 27, 19781 and the
Weatherill decision in Fanshawe College [Fanshawe
College and O.P.S.E.U., supra] Arbitrator MacDowell in
the Canadore College decision stated at p. 10:
These are admittedly old cases. But they are
precisely on point, no contrary authorities were
cited to us, and the language in question has
been maintained, without material change, since
1987, over several rounds of bargaining. Had
the parties wished to change the contract
language to avoid the interpretation given by
4
arbitrators Shime and Weatherill, they could
easily have do so. But they did not. On the
contrary. Article 27.08B, as currently framed,
merely reinforces the mandatory thrust of
Article 27.08A; because 27.08E narrows the
number of positions which can ultimately be the
subject of arbitral review. The matters that
can proceed to arbitration are a subset of the
positions identified in Article 27.08A - which
makes it all the more important for the grievor
to identify the field from which the arbitrable
subset is selected.
In other words, the current structure
reinforces the interpretation advanced by
arbitrators Shime and Weatherill ten years ago.
[15] In the St. Lawrence College case the grievor
claimed that he had been laid off contrary to the terms
of the collective agreement and was met with the
employer's response that the grievance did not specify
the persons whom the grievor sought to displace. In
the Fanshawe College case the board of arbitration
had to consider the propriety of a layoff and once
again there was a problem because the grievor had not
specified the names of the individuals whom he sought
to displace. Since the St. Lawrence and Fanshawe
decisions were released the parties changed the wording
from "persons" to "positions" and this change was in
effect when the Canadore College decision was made.
The MacDowell board was of the view the change was of
no material effect. We agree.
The parties' support staff collective agreement
contains a provision (Article 18.6.2.1) which requires an
employee claiming improper application of that agreement's
lay -off provision to "state in the grievance the position(s)
and name of the incumbent, if any, to which the employee
claims entitlement." It further provides that if the
grievance is not resolved, "the written referral to
arbitration shall specify, from the position(s) originally
designated, no more than four (4) positions which shall
thereafter be the subject matter of the grievance and the
arbitration." Arbitrations under that collective agreement
5
have found that this language, which is substantially similar
to the language in the academic Agreement so far as this issue
is concerned, also imposes mandatory substantive requirements
which cannot be waived. See, for example, OPSEU and Mohawk
College, unreported award dated March 4, 2003 (Thorne); and
Re Centennial College of Applied Arts and Technology and
O.P.S.E.U., Loc. 559 {Middleton), [2007] O.L.A.A. No. 180, in
which Arbitrator M.G. Picher wrote, in part, as follows in his
unanimous award:
[20] Leaving aside the jurisprudence, if this were a
matter of first impression, we would find it difficult
to avoid the conclusion arrived at by Arbitrator Thorne
[in OPSEU and Mohawk College, supra], namely that the
impact of article 18.6.2.1 is essentially to define the
parameters of the grievance and, to that extent, the
jurisdiction of the board of arbitration. By the
language of the provision itself it is those four
positions "... which shall thereafter be the subject
matter of the grievance and arbitation."
[21] From a purposive point of view the provision is
readily understandable. The College should know,
clearly and well in advance, the precise positions
which will be the subject of the arbitration of a
layoff grievance. While it was obviously open to the
parties to use directory language with respect to the
obligation to identify positions, in a turn of phrase
which is unusual within the provisions of a collective
agreement, they opted for what we must recognize as
essentially jurisdictional language. For reasons they
best appreciate they made the identifying of the four
positions the governing factor in "the subject matter
of the grievance and the arbitration "_ With respect,
given the language the parties adopted, we do not
believe that the failure to identify the positions at
the time of the referral to arbitration can be fairly
characterized as a merely technical deficiency or a
minor oversight which can be subsequently cured. very
simply, having regard to the language used by the
parties, without a proper referral to arbitration there
cannot be any arbitration, as the subject matter of the
arbitration would remain undefined.
[22] Apart from the foregoing analysis, we are
satisfied that counsel for the College is correct
in his submission that the jurisprudence gives
overwhelming support to the College's position..
In the academic bargaining unit, since 1986, the
clear preponderance of arbitration awards has held
that the substantive requirement to identify the
positions which will be the subject of arbitration
is a substantive requirement which cannot be waived,
the failure of which deprives a board of arbitration of
any jurisdiction to proceed. The application of that
principle in a number of grievances since the award of
Arbitrator Burkett in the George Brown College case
in 1995, through the renewal of a number of collective
agreements, compels this Board to the conclusion
that the parties must be taken to have understood
and accepted the mandatory nature of the parallel
provisions found in the collective agreement governing
academic staff.
As indicated by Arbitrator Kaplan in the majority
award in Re Fanshawe College and O.P.S.E.U., supra,
"a position means an existing job, whether full -time or
otherwise, not a collection of courses that could, when
combined, create full-time employment ". In that case, the
grievance was being arbitrated under Article 27.06A(i), which
provides that "[a]n employee will be reassigned within the
College to a vacant full -time position in lieu of being laid
off if the employee has the competence, skill and experience
to perform the requirements of a vacant position."
Counsel for the Union submits that a different
standard is applied to identifying positions for grievances
under Article 27.06A(iv). In support of that submission, she
relies upon Lambton College and OPSEU (Grievance of W.
Sayers), unreported award dated October 25, 1989 (Swan). In
that case, Mr. Sayers, who was a welding instructor, grieved
that he had been improperly laid off and contended that
certain teaching assignments should be taken away from three
7
employees who were teaching less than full -time and put
together for him as a full -time job made up of pieces of
teaching previously done by them. At the time of that case,
the layoff provision in the applicable collective agreement
was Article 8.05, which provided, in part, as follows in
Paragraph (d):
(d) failing placement under paragraph (c) above,
such employee shall be re- assigned to displace a
partial -load employee (as referred to in Appendix
II) or a part -time employee upon acceptance of
the identical employment conditions as the
partial -load or part -time employee concerned
provided that:
(i) the displacing employee has the compentence,
skill, and experience to fulfill the
requirements of the position relatively equal
to the employee being displaced;
(ii) the partial -load or part -time employee
being displaced has lesser months of service
with the College as determined in both
Appendix 11 and IV than such displacing
employee's months of seniority;
Also germane to that award was the following Letter
of Agreement:
Letter of Agreement dated April 7, 1986:
Re: Displacement of Partial -Load Emnovees
This will confirm the advice given in negotiations
that it is the College's intention that failing
placement of a full -time employee who has completed
the probationary period under Paragraph (d) of Section
8.05, the College will give reasonable consideration to
the written request of a full -time employee about to be
laid off to continue a full -time assignment by
displacing two or more partial -load or part -time
employees and the employee shall set out:
(a) the names of such partial -load or part -time
employees, each of whom have lesser continuous service
with the College.
Upon receipt of such written request, the College
will consider the feasibility thereof taking in account
I
such features as:
(b) possible reduction in efficiency, quality of
performance or adverse effect upon the program
objectives; and
(c) the relative competence, skill, experience and
suitability as demonstrated with the College to fulfill
the requirements of the positions concerned_
In the majority award, Arbitrator Swan indicated that
once Mr. Sayers received notice of lay -off and thereby became
aware that he had not been placed under paragraph 9.05(d), he
was entitled to make a "written request" pursuant to that
Letter of Agreement. He also indicated that the written
request could be given in the form of a grievance, or even in
the form of a written referral to arbitration specifying the
two or more partial -load or part -time employees whose duties
were to be combined. He further indicated that once this had
been done, the College was obliged to give reasonable
consideration to combining those positions to avoid the
lay -off, taking into account such considerations as those set
out in the Letter of Agreement. Since they were not in
possession of sufficient evidence to permit them to come to
any rational conclusion on whether Mr. Sayer had more
continuous service with the College than one of the employees
whom he sought to displace, the board of arbitration remitted
that issue to the parties (and indicated that the matter would
be scheduled for continuation of hearing at the request of
either party).
Nothing in that award, nor in the "obiter comments"
included in Arbitrator Simmons' majority award in Re Fanshawe
9
College and O_P.S.E.U., supra, obliges a college to "cobble
together" courses in order to create a full -time position for
a grievor facing layoff. Those obiter comments (made at the
request of the parties, in response to their question of
whether the employer was "obligated to combine lesser than
full -time assignments to a regular, full -time position ")
merely indicate that if Ms. Zurowski (who was the grievor in
those proceedings) had filed her grievance under section
27.06A(iv) or (v) instead of under section 27.06A(i),
Arbitrator Swan's decision in the Lam -bton College case would
have been more persuasive in their decision (which dismissed
the grievance because the grievor sought to be reassigned to a
vacant full -time position in lieu of being laid off, but did
not mention in her grievance any position being sought).
However, the combination or "cobbling" contemplated in those
awards is not a combination of courses to make a full -time
position. What each of them contemplated is a combination of
partial -load or part -time positions to make a full -time
position.
For the sake of completeness, it should also be noted
that the above- quoted Letter of Agreement dated April 7, 1986,
is not appended to the parties' current Agreement_ A letter
of understanding originally dated November 28, 1989 (and now
dated September 10, 2012) containing somewhat similar language
is appended, but it pertains to displacement of part -time
employees and is not being relied upon by the Union in support
of the grievor's lay -off grievance.
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In St. Lawrence College and OPSEU (Grievance of M.
McCabe), unreported award dated May 28, 1997 (McLaren), the
board of arbitration declined to consider a "composite
position" which totalled only 12 hours of teaching per week,
because it was less than a full load of between 13 and 18
hours, and because Article 27.082 precludes a lay -off
grievance from being arbitrated under more than one of parts
(i) , (ii) , (iii) , (iv) , (v) , (vi) , (vii) , and (viii) of
Article 27.08A. However, the board of arbitration did
consider the other designated position, which was a full -time
vacant position.
Unless there are unusual circumstances, in
determining the duties of a position for purposes of
arbitrating lay -off grievances under Article 27.08 arbitrators
have generally confined their consideration to the teaching
duties of the incumbent or incumbents in the academic term in
which the lay -off takes place: see OPSEU and Fanshawe College
(Grievance of Leslie Dobos), unreported award dated June 4,
1998 (Burkett) ; OPSEU and George Brown College (Grievance of
G. Waffle), supra; and the cases referred to therein. There
is nothing in the Agreed Facts which warrants a departure from
that approach. In the instant case, the College provided the
grievor with a notice of lay -off on January 9, 2013.
Consequently, the pertinent teaching duties are those
performed by the incumbents during the 2013 winter academic
term.
In the instant case, the "Grievance list" appended to
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the lay -off grievance includes what purport to he three
positions. There are five names listed in the "Faculty Name"
column for "Position 111: Melissa Piccinin, Nicol Guerra, and
[Karren] Boothroyd, who are partial -load employees; Tahir
Kahn, who is a part -time employee; and the grievor, Denise
Merlino, who was a full -time instructor in the College's
Esthetician Diploma Program prior to her lay -off. The Winter
2013 courses listed for those employees in "Position i" are
nine hours of HEAL13271G (Wellness & Healthy Living) for
Melissa Piccini, three hours of that course for Nicol Guerra,
six hours of that course for Tahir Khan, and four hours of
COSM16952 (Product Knowledge Skin and Nails) for Denise
Merlino. No course is listed for Karren Boothroyd for that
term. Thus, the teaching hours listed for "Position 1" for
the Winter 2013 academic term total twenty-two. Since Tahir
Khan is a part -time employee, those six hours presumably
constitute his full teaching load for that term. (See Note A
of Article 1.01, which stipulates that persons employed on a
part -time basis "include persons who teach six hours per week
or less ".) Article 26.01B defines a partial -load employee as
"a teacher who teaches more than six and up to and including
12 hours per week on a regular basis ". Ms. Piccini's nine
teaching hours fall within those parameters. However, it
appears that she may have been teaching more than those nine
hours that term, as "Position #2" on the list attached to the
referral to arbitration attributes twelve additional hours to
her in respect of another course (NUTRI19207G [Nutrition for
12
Well Being]) for that term. Moreover, the three teaching
hours ascribed to Ms. Guerra on the list attached to the
grievance do not fall within those parameters; she would have
to have been teaching at least four more hours per week in
order to fall within the purview of that definition. As
another partial load employee, Karren Boothroyd would also
presumably have been teaching at least seven hours per week
during that term. The four hours listed for the grievor would
also obviously have constituted only part of her workload as a
full -time instructor during that academic term.
It is evident from the foregoing analysis that
"Position #1" on the grievance list is comprised of a grouping
of selected courses which constitute only part of the teaching
Toad of some of the named faculty members. The same is true
of "Position #2" and "Position 43" on that list, and of both
"Position #1" and "Position 42" on the list attached to the
referral to arbitration. On the basis of the foregoing
arbitral jurisprudence, those cobbled bundles of selected
courses are clearly not "positions occupied by full -time and
non- full -time employees ", within the meaning of Article
27.08A, nor are they "positions occupied by two or more
partial -load or part -time employees (the sum of whose duties
will form one full -time position) ", within the meaning of
Article 27.08B.
The list attached to the referral to arbitration is
also non - compliant with the Article 27.08B requirement that
the positions be specified "from the positions originally
13
designated in 27.08 A". Neither of the purported positions on
that list appear on the grievance's list of purported
positions. "Position #1" on the referral list includes the
first three names from "Position #1" on the grievance list
(Melissa Piccin, Nicol Guerra and Tahir Khan), but omits the
remaining two names (Denise Merlino and Karren Boothroyd). It
adds the name of Joanna Bond (which is the second name listed
in "Position 43" on the grievance list), but does not list any
course for her during the Winter 2013 academic term.
"Position #2" on the referral list includes three of the names
from "Position 42" on the grievance list (Jacqueline Fraser,
Peter Papadogiannis, and Penny Biles) but omits the Winter
2013 courses listed on the grievance list for Ms. Fraser (six
hours of HUMN16693G [Human Relations, The Interpersonal
Experience]) and for Mr. Papadogiannis (three hours of
HUMN16693 [Human Relations, The Interpersonal Experience]).
It also omits Sipa Chansavang, which is the fourth name
included in "Position #2" on the grievance list, and adds
Melissa Piccinin, for whom it lists twelve hours of
NUTRI19207G (Nutrition for Well Being).
As indicated above, the failure to "state in
the grievance the positions occupied by full -time and
non - full -time employees whom the employee claims entitlement
to displace ", and the failure in the written referral to
arbitration to "specify, from the positions originally
designated in 27.08 A, two full -time positions, or positions
occupied by two or more partial -load or part -time employees
14
(the sum of whose duties will form one full -time position),
who shall thereafter be the subject matter of the grievance
and arbitration ", are not mere procedural deficiencies which
can be waived. They are failures to comply with mandatory
substantive requirements which can neither be waived nor cured
by subsequent particulars (see Seneca College of Applied Arts
and Technology and O. P. S. E. U. , supra)
Counsel for the Union also relies upon Plouin Drywall
Contractors Ltd. v. United Brotherhood of Carpenters and
Joiners of America, Local 2486, [1975] O.J. No. 31 (Ont. C.A) ,
in support of her submission that the grievance should not be
inarbitrable because of undue technicality. The judgment of
the Court in the case, delivered by Brooke J.A., includes the
following oft- quoted observations (in paragraphs 10 and 11):
... No doubt it is the practice that grievances be
submitted in writing and that the dispute be clearly
stated, but these cases should not be won or lost on
the technicality of form, rather on the merits and as
provided in the contract and so the dispute may be
finally and fairly resolved with simplicity and
dispatch.
Certainly, the board is bound by the grievance
before it but the grievance should be liberally
construed so that the real complaint is dealt with and
the appropriate remedy provided to give effect to the
agreement provisions....
As noted by Arbitrator Swan in St, Lawrence College
and OPSEU (Grievances of M. Robitaille), unreported award
dated February 4, 1997, at pp. 7 -8, those observations have
been referred to in a number of College cases which permit
reference to be made in argument to provisions of the
Agreement not expressly set out in the grievance, but which
15
preclude a completely different ground from being raised for
the first time at arbitration:
As I read the cases, no arbitrator under this
collective agreement has asserted that only those
provisions of the collective agreement expressly set
out in the grievance may be referred to in argument.
Virtually all of the cases where arbitrators have
refused to consider what they find to be an amendment
to the grievance deal with circumstances where a
completely different ground is raised for the first
time at arbitration, rather than merely a different
collective agreement support for the same ground.
While we respectfully agree with the approach set
forth in Blouin Drywall and applied in the arbitral
jurisprudence, it cannot be used to cure a substantive
jurisdictional defect in a grievance, such as a failure to
"state in the grievance the positions occupied by full -time
and non- full -time employees whom the employee claims
entitlement to displace ", as required by Article 17.08A, or a
failure to "specify, from the positions originally designated
in 27.08 A, two full -time positions, or positions occupied by
two or more partial -load or part -time employees (the sum of
whose duties will form one full -time position), who shall
thereafter be the subject matter of the grievance and
arbitration ", as required by Article 27.08B. As indicated
above, the preponderance of awards under a succession of
collective agreements has quite consistently found those
requirements to be mandatory substantive requirements which
cannot be waived. Thus, a failure to comply with them is not
a mere technical deficiency or minor oversight which can be
subsequently cured. As stated by Arbitrator M.G. Picher in
above - quoted passage from Re Centennial College of Applied
16
Arts and Technology and O.P_S_E.U., Loc. 559 (Middleton),
supra, "having regard to the language used by the parties,
without a proper referral to arbitration there cannot be any
arbitration."
For the foregoing reasons, the grievor's lay -off
grievance is hereby dismissed.
The Retraining Grievance
The retraining grievance alleges that the College
contravened Articles 27.06, 28.01, and 28.04 of the Agreement.
The relief sought is "that the lay -off notice be rescinded and
that the retraining mentioned in the articles above begin
immediately for current courses as well as any curricula under
development ".
There are two aspects to that grievance. The first
is the Union's contention that the College violated Article
28.01 by failing to enhance the griever's employment stability
by retraining her in the years prior to her layoff when it
knew that enrollment in her program was in decline. The
grievance's second aspect is the Union's contention that the
College violated Article 27.06(iii)(c) by failing to provide
the grievor with retraining after she received notice of
layoff.
Article 28.01 provides as follows:
Article 28
EMPLOYMENT STABILITY
28.01 A The parties hereto subscribe to certain
objectives and principles as follows:
(i) that employment stability should. be
17
enhanced, within the resources
available, through both long -term and
short -term strategies;
(ii) that such strategies should include,
but not necessarily be limited to,
planning, retraining, early retirement,
alternative assignments, secandments,
employee career counselling, job sharing
and professional development;
(iii) that data which are relevant to
employment stability should be made
available to both parties;
(iv) that procedures should be in place to
deal with situations that arise in
which, notwithstanding the best offcrts
of both parties, lay -offs and /or
reductions in the number of employees
who have completed the probationary
period become necessary; and,
(v) that resources should be made available
to achieve, to the degree that it is
feasible, these objectives and
principles.
28.01 B The parties have agreed to the following
provisions, in order to achieve, to the degree
that it is feasible, the foregoing objectives
and principles.
The Union contends that the College failed to
subscribe to those objectives and principles when it did not
provide the griever with retraining during the years prior to
her layoff when it knew that enrollment in her program was in
decline. It also characterizes this failure to enhance the
grievor's employment stability through retraining as an
arbitrary, bad faith, and unreasonable exercise of the
College's discretion under Article 28.01A. However, that
provision does not create an arbitrable duty or discretion on
the part of the College to provide retraining. After reciting
the above - quoted objectives and principles, it sets forth the
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provisions to which the parties have agreed in order to
achieve (to the degree that it is feasible) those objectives
and principles. Those provisions provide for the
establishment of a joint College Employment Stability
Committee (the "CESC") at each College to, among other things,
recommend long -term and short -term strategies to enhance
employment stability, which strategies may include retraining.
Article 28.04, for example, provides in part as follows in
this regard:
The functions of the CESC shall include the making of
recommendations with respect to long -term strategies
to enhance employment stability, having regard to
available resources. Activities may include, but not
necessarily be restricted to:
(iv) developing strategies including retraining, early
retirement, alternate assigments, secondments,
professional leaves, employee career couselling,
job sharing, professional development,
pre - retirement planning and voluntary transfer.
It is clear from those provisions that, as contended
on behalf of the College, the parties' joint commitment to
enhance employment stability through both long -term and
short -term strategies including retraining is to be actualized
through the functioning of the CESC. Thus, the grievance is
not arbitrable under Article 28.01 or Article 28.04, as
neither of those provisions establish any right to retraining
enforceable through the arbitration of an individual
instructor's grievance.
However, the grievance is arbitrable under Article
27.06A(viii)(c), which provides:
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Failing placement under 27.06 A (viii) (a), such
employee shall be laid off with written notice of not
less than 90 calendar days. Such employee shall be
granted release from all or part of the normally
assigned duties, for this period of notice, for the
purpose of engaging in retraining activities, where
such release is feasible given the normal operational
requirements facing the College. Where such release is
not possible, the notice period shall be extended by up
to 90 days to permit retraining and the employee shall
maintain current salary and benefits for the duration
of the notice period.
The application of that provision to the
circumstances of the instant case gives rise to a number of
arguable issues, including: (1) whether (as contended on
behalf of the Union) the College had an obligation to provide
the griever with retraining after she received her notice of
layoff and before the retraining grievance was filed, or
whether (as contended on behalf of the the College) Article
27.06(viii)(c) only gives a right to release for the purpose
of retraining, and does not grant the right to retraining
asserted by the Union; (2) whether it was necessary for the
griever to make a request that she be granted release for the
purpose of engaging in retraining activities (as contended on
behalf of the College), or whether an employee who is issued a
notice of layoff has a right to be provided with retraining
regardless of whether that employee asks for a release (as
contended on behalf of the Union); (3) whether the absence of
any mention of retraining in the notice of lay -off, which
explicitly indicated that the grievor was expected to perform
her regular duties during her notice period, has any bearing
on the validity of the grievance (as asserted by Union
counsel, but disputed by College counsel); and (4) whether the
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College was obliged in the circumstances of this case to
either accept one of the two retraining proposals created by
the grievor after filing the grievance, or to suggest
alternative training.
We do not find it appropriate to decide any of those
issues on the basis of the material currently before us in
these proceedings. Thus, if the parties are unable to resolve
the aforementioned second aspect of the grievance, it will be
scheduled for continuation of hearing, at which evidence (if
necessary) and further submissions may be presented.
DATED at Burlington., Ontario, this 28th day of May, 2014.
4c D. Howe
Chair
T concur.
"A. Burke"
College Nominee
Z dissent.
"Sherril Murray"
Union Nominee
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