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HomeMy WebLinkAboutUnion 05-08-23IN THE MATTER OF AN ARBITRATION BETWEEN: FANSHAWE COLLEGE (THE COLLEGE) AND: ONTARIO PUBLIC SERVICE EMPLOYEES UNION (THE UNION) AND IN THE MATTER OF A UNION GRIEVANCE NO. 2004-0110-0194 BOARD OF ARBITRATION: HOWARD D. BROWN, CHAIR SHERRIL MURRAY, UNION NOMINEE JOHN PODMORE, COLLEGE NOMINEE APPEARANCES FOR THE COLLEGE: R.J. ATKINSON, COUNSEL AND OTHERS APPEARANCES FOR THE UNION: GAVIN J. LEEB, COUNSEL AND OTHERS A HEARING IN THIS MATTER WAS HELD AT LONDON ON APRIL 12, 2005 AWARD 2 The grievance of the Union dated July 23, 2004 is as follows: “Local 110 grieves that the college has acted in bad faith in the hiring process for the languages and communications division. There were internal candidates that met all the criteria established for the position. In particular L.D. continues to be discriminated against for his disability. He was told that he was better suited to teaching university courses. While he is well qualified to teach university courses, he applied for a position at Fanshawe, he has superior credentials including all that were sought in the position and he has demonstrated by his teaching scores that he performs at a level above the department in literature and non literature courses. As remedy we seek a declaration that the hiring process was discriminatory and that it was conducted in bad faith and further we seek the appointment of L.D. as a full time member of the bargaining unit.” A posting for full-time Professor appointments to commence on September 1, 2003 is referenced in the Union’s grievance which relates to the failure of the College to appoint L.D. to one of those positions on the posting. He had been employed in the General Studies Division as a sessional employee and his application for this posting was denied by the College. It was agreed at the hearing that in the particular circumstances of this matter, the Board would use initials only of the candidate of reference in the grievance. 3 At the hearing, the College raised a preliminary objection to the arbitrability of the grievance and the Board’s jurisdiction in this matter. The Board received the submissions of Counsel on the preliminary issue and reserved its decision without dealing further with the st grievance. Following the hearing, the Board met in executive session on May 31 at Oakville to consider these submissions and the preparation of its award out below. On July 11, 2003, the Union filed a policy grievance alleging a violation of Article 27.11 concerning the posting for general studies which is not referred to this Board except in relation to a settlement reached by the parties dated May 17, 2004 relating to another competition for two new faculty positions in 2004. While L.D. is not included in the grievances which are referred in that Memorandum of Settlement, he is included in its terms the relevant parts of which are as follows: “1. Commencing Fall 2004, the College shall hire two (2) new full-time faculty positions in General Studies, English Program to start by August 16, 2004; 2. First consideration in respect of the hire shall be given to Niki Keith, David Hill, Kathryn Mackler, Caitlin Murphy, Lorraine Goulden and L.D., who will be notified of the competition by registered mail. The letter will recommend they contact their union representative in respect to the competition. 3. The positions may be posted internally and provided to other Colleges, concurrent with the notification in paragraph 2, however, those named in paragraph two, who chose to apply, must be considered before any other candidate is considered.” 4 While those persons identified in paragraph 2 including L.D. were interviewed for the positions, he was not successful but there is no dispute by the Union that he was considered as a candidate. It is the Union’s claim that he was discriminated against by virtue of his disability but was qualified as a teacher in the program of the posting. As he is a sessional employee and in that capacity cannot grieve under the terms of the collective agreement, the Union’s position is that the Union has a right to enforce the Memorandum of Settlement which has reference to L.D. as set out in paragraph 8 thereof: “These Minutes of Settlement shall not be relied upon in any future proceeding except to enforce its terms.” While the College was required to give first consideration to the Internal Candidates, it does have not have a broad discretion to bypass an Internal Candidate to seek the best candidate. A qualified Internal Candidate must therefore be appointed to the posting. Alternatively, the Union’s claim is that the College was discriminatory in the exercise of its discretion in filling these positions. The Union seeks a remedy on behalf of L.D. and asserts its ability to proceed with its grievance in circumstances where the terms of the Memorandum of Settlement has been violated as alleged by the Union. The response of the College to the grievance in part is: “The College takes the position that this is not the proper subject matter of a policy grievance. In addition, and without 5 prejudice to that position, the College denies that the persons who were afforded first consideration in the process are ‘internal’ candidates. The College further denies that it acted in bad faith, or was discriminatory in the hiring process.” It is submitted that the Union’s grievance can deal only with the enforcement of the Memorandum of Settlement in accordance with Section 8. Having the agreement of the parties that L.D. along with others, was given first consideration on the posting, nothing further can arise from the grievance. L.D. was a Sessional Employee in the Fall of 2002 term which was replaced as a Partial-Load employee in the Winter term. In the Fall 2003/Winter 2004 terms, L.D. was a Part-Timeemployee and was outside of the bargaining unit after the Winter term. He was not in the bargaining unit when the posting and Settlement dated May 17, 2004 was entered into as he was not then employed by the College. It is the College’s position that the Union does not have a right under the collective agreement to file a grievance on behalf of L.D. and can only grieve to enforce the terms of the Memorandum of Agreement. In a screening of the applicants for the posting, L.D. met the academic qualifications for the position and was interviewed prior to the other applicants of the group of candidates, one of whom was hired but not L.D. It is its position that the College complied with Section 2 of the Memorandum of Agreement so that there is no basis for the grievance of the Union which is not within the Board’s jurisdiction. L.D. does not have any status to grieve and does not have any enforceable rights under the collective agreement. The Board does not have status or jurisdiction to deal with alleged breaches of the collective 6 agreement and the clear terms of the Memorandum of Settlement have been applied by the College. It is the submission for the Union that while it is acknowledged that L.D. received an interview as a result of the parties’ settlement, his application was denied for an improper reason so that the Union should be able to bring forward evidence as to the interpretation and application of the settlement which is a dispute between the parties. Reference was made to Article 32.10, the first paragraph of which is: “ The Union or Union Local shall have the right to file a grievance based on a difference directly with the College arising out of the Agreement concerning the interpretation, application, administration or alleged contravention of the Agreement. Such grievance shall not include any matter upon which an employee would be personally entitled to grieve and the regular procedure for personal or group grievance shall not be by-passed except where the Union establishes the employee has not grieved an unreasonable standard that is patently in violation of this Agreement and that adversely affects the rights of employees.” The Union claims that it can proceed with the grievance to enforce the terms of the Memorandum of Settlement as paragraph 2 thereof has not been complied with by the College. It was submitted that L.D. was due consideration as an Internal Candidate among the other Candidates who were given super Internal status by Section 2 of the settlement of the parties whereby the Internal Candidates were to be first considered for the position. The Union 7 questions whether consideration was given in a meaningful way by the College to L.D. The Union claims that the decision of the College was influenced by knowledge of the disability of L.D. which is an improper consideration and violation of the Human Rights Code which is a difference to be dealt with by the parties as to compliance with the terms of the Memorandum of Settlement. Reference was made in its submission to Re George Brown College and OPSEU 37 th L.A.C.(4)107 (Burkett); Re Seneca College College and OPSEU (MacDowell, October 29, 1988); Re Sault College and OPSEU (Saltman, November 25, 2003); Re St. Lawrence College and OPSEU (Starkman, October 30, 2003). Having regard to the submissions in this matter, it is clear that the grievance is limited to the circumstances of L.D. as to the consideration given to his application for the position of Full- Time Faculty in General Studies, English Program as set out in the Memorandum of Settlement. Section 8 thereof limits the application by the parties of the settlement to an enforcement of its terms which means the only issue under the settlement which could arise is whether the individual was given first consideration in the competition that is the extent of the Board’s authority to enforce any alleged violation of this Memorandum of Agreement. The issue however, concerns the application of Paragraph 3 of the Memorandum of Settlement in view of Paragraph 8 thereof. To extent the issue to allow the inclusion of evidence relating to a determination of the manner in which the College acted in the competition as to L.D. and any 8 consequential relief thereby, we find is an Individual and not a Union grievance pursuant to Article 32.10 of the collective agreement. If L.D. had been an employee of the College and in the bargaining unit represented by the Union at the time of the posting and Settlement which he was not, he would personally be entitled to grieve and therefore by the terms of this provision, the Union would be excluded from its right to file a grievance on his behalf. The evidence is that L.D. was not an employee in the bargaining unit at the time of the job competition but because of external factors, was given status as an Internal applicant through the Memorandum of Settlement concerning of the two grievances dealt with by that settlement. His status does not flow from the application of the terms of the collective agreement but only from the terms of this Memorandum of Settlement which limits the parties’ interest in subsequent proceedings other than to the enforcement of its terms which on the face of that language limits the scope of reference in this grievance. By Article 27.11 B of the collective agreement, it is provided that where a vacant Full- Time position in the bargaining unit is not filled internally which includes for the purposes of this Article, “full-time and partial-load bargaining unit employees”, the College must give consideration to laid off Academic employees at other Colleges before external applicants. The Grievor did not qualify at this time as an employee of the College with that status and therefore obtained his right for a first consideration for the posted position through the terms of the Memorandum of Settlement, not through the terms of the collective agreement as he was not at the material time a member of the bargaining unit with the rights and obligations of the 9 collective agreement. Insofar as the Union’s assertion that there was an improper process by the College in the competition, there could be an individual claim by an employee in the bargaining unit for an appropriate remedy but such a claim is not properly brought in these circumstances, through a Union grievance which is precluded by the clear terms of Article 32.10. We find that the Board does not have jurisdiction in this matter under the terms of the collective agreement to proceed with the hearing on the merits of the Union’s grievance which solely concerns the Union’s claim on behalf of L.D. There is however, no remedy available to L.D. under the terms of the collective agreement nor by the Memorandum of Settlement, beyond a finding that he was to be given first consideration with respect of the hire to the vacant position and both parties agree that he was considered by the College and the Union acknowledged that L.D. was interviewed for the position. There is no qualification in the Memorandum of Settlement as to any requirements or limitations as to the College’s consideration of the Internal Candidates thus the extent of the Board’s jurisdiction would be to declare and direct the College to comply with Section 2 of the Memorandum of Settlement which has however been completed. The Union’s grievance does not extend beyond the scope of enforcement of the terms of the Memorandum of Settlement for the purposes of its claim concerning L.D. Even if, the Board extended the terms of Article 32.10 to enquire into the remedy requested in the Union’s grievance, it would involve an individual outside of the bargaining unit and not an employee it could represent under the terms of the collective agreement. 10 There are other methods for an individual to complain about wrongful treatment by an employer through the appropriate Legislation but that right does not arise in the circumstances of this grievance through the terms of the collective agreement which did not apply to L.D. at the material times. The allegation that the hiring process of the College was discriminatory and exercised in bad faith by failing to hire Internal Candidates who met the job criteria does not arise from the terms of the Memorandum of Settlement applicable to L.D. whose recognition as a candidate for the vacant position arose solely through its terms and is not an issue that this Board has jurisdiction under the collective agreement. The limited jurisdiction of this Board is to determine if the terms of the Memorandum of Settlement has been complied with by the College and therefore to enforce that Agreement in accordance with Paragraph 8. It does not extend in these circumstances to make a determination and fashion a remedy for an individual candidate who obtained his status of an Internal Candidate by the parties’ agreement and is the focus of the Union’s grievance. On the basis of the submissions at the hearing that L.D. was given consideration as an internal applicant by the College and that there is nothing set out in that agreement to limit the discretion of the College in considering L.D.’s application, no issue arises as to the enforcement of the settlement. The Board is not given jurisdiction thereby to make a general inquiry as to the College’s hiring process or alleged discrimination against an individual in the application of terms of the collective agreement which did not apply to L.D. in this posting. We find any individual right of L.D. to claim 11 against the College does not arise through the Union’s grievance in this matter which is not arbitrable. The St. Lawrence College award (supra) is distinguished on its facts as L.D. was not a member of the bargaining unit at the material time. His representation by the Union arises not from the collective agreement but from the Memorandum of Settlement under which the Union is limited to the enforcement of the terms of that agreement. Once that has been seen to have been completed and a declaration made to that effect, the Board’s jurisdiction ends. Any outstanding issues concerning the consideration given by the College with respect to L.D.’s application for the vacant position is an individual and not a Union complaint under the grievance procedure of the collective agreement and by that Article, the Union’s grievance is not arbitrable. Having regard to the submissions of the parties and for the foregoing reasons, we find that this Board does not have jurisdiction to deal with the Union’s grievance. It is our 12 award therefore that the preliminary objection of the College is allowed and these proceedings are thereby terminated. rd DATED AT OAKVILLE THIS 23 DAY OF AUGUST, 2005 HOWARD D. BROWN, CHAIR SHERRIL MURRAY, UNION NOMINEE JOHN PODMORE, COLLEGE NOMINEE