HomeMy WebLinkAboutSharma-Sajan 14-12-04IN THE MATTER OF AN ARBITRATION
UNDER THE COLLEGES COLLECTIVE BARGAINING ACT, 2008
S.O. 2008, CHAPTER 15
BETWEEN
HUMBER COLLEGE INSTITUTE OF TECHNOLOGY &
ADVANCED LEARNING
(the “Employer”)
and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION (ACADEMIC),
LOCAL 562
(the “Union”)
REGARDING THE GRIEVANCE OF PRABHA SHARMA-SAJAN
CONCERNING ARTICLE 26.10
(GRIEVANCE NO. 2013-0562-0017)
BOARD OF ARBITRATION:
CHAIR - PAMELA COOPER PICHER
COLLEGE NOMINEE - CARLA ZABEK
UNION NOMINEE - SHERRIL MURRAY
APPEARANCE FOR THE COLLEGE:
William Hayter - Counsel
APPEARANCE FOR THE UNION:
Lesley Gilchrist - Grievance Officer
A hearing was scheduled to take place in Toronto on September 24, 2014.
Written submissions were received from the College dated October 24,
2014 and from the Union dated November 6, 2014.
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PRELIMINARY AWARD
The Union filed a grievance dated October 25, 2013 on behalf of Ms.
Prabha Sharma-Sajan (Grievance No. 2013-0562-0017) alleging that Humber
College had breached article 26.10 of the collective agreement by not offering
her a partial load contract to teach courses in the School of Liberal Arts in
both the July–August 2013 period and that of the fall of 2013. On January 27,
2014, the Union referred Ms. Sharma-Sajan’s grievance to arbitration, which
was then scheduled for hearing on September 24, 2014. The grievance made
no express reference to a breach of the Human Rights Code of Ontario,
R.S.O. 1990, Chapter H. 19.
On May 2, 2014, however, Ms. Sharma-Sajan filed a complaint with the
Human Rights Tribunal of Ontario. Through a decision dated July 30, 2014,
the Human Rights Tribunal deferred Ms. Sharma-Sajan’s complaint “pending
the conclusion of a grievance arbitration related to the same facts and issues
as are raised in this Application.”
On September 24, 2014, the day scheduled for the arbitration hearing
of Ms. Sharma-Sajan’s grievance, but prior to the formal commencement of
the arbitration hearing, the Union withdrew the grievance. The Union did not
seek to add any terms or conditions to its withdrawal. The withdrawal was
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unilateral and the Union, as noted in the written submissions of the Union,
“did not seek agreement from the College for a without prejudice withdrawal.”
The College objected to the Union’s withdrawal of the grievance.
Through its written submissions provided to the Board subsequent to the
scheduled hearing date, the College requested the following:
… that this Board formally note that the withdrawal
[of the grievance] was unilateral, was not consented
to but opposed by the College, is not ‘without
prejudice’ concerning the impact of this withdrawal
on the grievance when it comes to the complaint
before the HRTO, and that the legal effect of the
withdrawal with respect to the issues of fact and law
before this arbitration as it relates to the human
rights claim is a matter for the HRTO.
In some contrast, the Union, through its written submissions, requested the
following:
… that the Union’s withdrawal, as it is, should stand
and that this respected Board refrain from making
any order, decision or ‘note’ that the Employer
requests.
The Board has carefully reviewed the submissions of the partie s and
the related jurisprudence. In Re Algonquin College and OPSEU, Local 415,
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[2008] O.L.A.A. 440, Arbitrator Paula Knopf stated the following at paragraph
16:
… While a party filing a grievance can always
withdraw it, that party cannot insulate itself from the
consequences of that withdrawal simply by
asserting that the withdrawal is ‘without prejudice’.
… This was recognized in Burnaby (City) and
C.U.P.E., supra at p. 46;
… a party that withdraws the grievance
from arbitration should not attempt to
insulate itself from the potential
consequences of the decision it has
made by seeking to persuade an
arbitrator to impose terms such as
‘without prejudice [or] precedent’, …
The employer should not be denied its
opportunity, if it is so inclined, to make
submissions to another tribunal
regarding the effect of the withdrawal
from arbitration on the deliberations of
that tribunal. It will be up to that
tribunal to decide the issue put to it
without regard to terms [or] conditions
in the arbitration award.
The Board highlights that in the instant matter, as set out above, the
Union’s withdrawal of Ms. Sharma-Sajan’s grievance was unilateral and
without condition. The Union did not seek to add a “without prejudice”
condition to its withdrawal. It was not, however, consented to by the College.
Consistent with the undisputed jurisprudence submitted by the parties,
the Board, simply, emphasizes that the legal impact of the Union’s withdrawal
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of the grievance with respect to the grievor’s human rights complaint before
the HRTO is a matter for the HRTO to determine, and remains without
comment by this Board.
Dated at Ottawa this 4th day of December, 2014.
“Pamela Cooper Picher”
Pamela Cooper Picher
Chair
I concur. “Sherril Murray”
Union Nominee
I concur. “Carla Zabek”
College Nominee