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HomeMy WebLinkAboutDicaro 96-06-1295E149 HUMBER VS DI CARO IN THE MATTER OF AN ARBITRATION B E T W E E N: HUMBER COLLEGE (the "College") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the "Union") GRIEVANCE RE TERMINATION OF LISANNE DI CARO (#95E149 SUPPORT) BOARD OF ARBITRATION: Pamela C. Picher Chairperson Ron Hubert College Nominee Sherril Murray Union Nominee APPEARING FOR THE COLLEGE: Brenda Bowlby Counsel John Henry Human Resources Nancy Hood Human Resources APPEARING FOR THE UNION: Margaret Keys Grievance Off Lisanne DiCaro Grievor A hearing in this matter was held in Toronto on May 3, 1996. AWARD The grievor, Ms. Lisanne Di Caro, filed a grievance against her termination. She further grieved that through the termination, the College discriminated against her on the basis of a physical and/or mental handicap and, moreover, that it failed to accommodate her with the provision of appropriate employment. At the outset of the arbitration, the College raised a preliminary objection, asserting that the matter is not arbitrable because the grievance was filed outside the mandatory time limits under the collective agreement. The parties agreed that the Board of Arbitration should determine the preliminary objection before proceeding to the evidence on the merits of the grievance. The termination occurred on May 31, 1995 and was communicated to the grievor on or about June 5, 1995. The collective agreement sets a mandatory 15-day time limit for the filing of a grievance but the grievor did not file her grievance until August 14, 1995, more than two months following her termination. The relevant provisions of the collective agreement are set out below: 18. COMPLAINTS/GRIEVANCES 18.1 Definitions 18.1.2 Day "Day" means a calendar day; 18.1.4 Grievance "Grievance" means a complaint in writing arising from the interpretation, application, administration or alleged contravention of this Agreement. General Conditions 18.2 18.2.1 Time If the grievor fails to act within the time limits set out at any Complaint or Grievance Step. the grievance will be considered abandoned. 18.6 Working Conditions and Terms of Employment 18.6.1 Grievances A complaint shall be taken up as a grievance in the following manner and sequence provided it is presented within fifteen(15) days after the circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the employee. 18.7 Grievance re Dismissal and Suspension 18.7.2 Grievance An employee who claims he/she has been dismissed or suspended without just cause shall. Within fifteen (15) days of the date he/she is advised in writing of his/her dismissal or suspension present his/her grievance in writing to the President, commencing at Step No. 3 and the President, or his/her designee shall convene a meeting and give the grievor and the Union Steward his/her decision in accordance with the provisions of Step No. 3 of Article 18.6.1.3. A Union Staff Representative may be present at such meeting at the request of either the- College or the Union. 18.7.4 Powers The Arbitration Board shall have those powers set out in the Colleges Collective Bargaining Act, 1975. 18.7.5 Limitations The Arbitration Board shall not be authorized to alter, modify or amend any part of the terms of this Agreement nor to make any decision inconsistent therewith nor to deal with any matter that is not a proper matter for grievance under this Agreement. [emphasis added] As set out above, the collective agreement stipulates in article 18.6.1 that "[a] complaint shall be taken up as a grievance ... provided it is presented within fifteen (15) days after the circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the employee". Similarly, for a claim of unjust dismissal, article 18.7.2 stipulates that the employee "shall, within fifteen (15) days of the date he/she is advised in writing of his/her dismissal ... present his/her grievance in writing to the President ...". On May 18, 1995, the College, the Union and the grievor met to discuss the College's proposal for the grievor's return to work following the expiration of her short-term disability. At that time, it was agreed that her return to work date would be May 29, 1995. In addition, the College clearly set out the terms of her return to work and the content of the modified duties she would be performing. The bundle of duties had been created by the College through consultation with, among others, an external physician who had been advised of the grievor's limitations. The terms of the return to work were then set out in writing and hand delivered to the grievor through a letter dated May 23, 1995. At the conclusion of the letter, the College stated that "... if [she chose] not to accept [the] assignment without supplying a reason satisfactory to the College, and not to return to work on Monday, May 29, 1995, the College [would] conclude that [she had] abandoned [her] employment, or alternatively, the employment relationship with [her had] become frustrated". The grievor testified that on May 26, 1995 she contacted Mr. John Henry, the College's Human Resources Consultant, and advised him that she was declining the position because she did not want to put her health in jeopardy. The grievor acknowledges that Mr. Henry asked her if she understood that her decision meant that she would be terminated. She replied that she did. In accordance with her stated intention, the grievor did not return to work on the scheduled date for her return of May 29, 1995. On May 31, 1995, the College advised the grievor in writing that in the above described circumstances, her employment with Humber College was being terminated effective May 31, 1995. It is common ground that the grievor received the letter of termination on or about June 5, 1995. In mid-June, the grievor met with her lawyer to discuss her termination. The grievor testified that her lawyer stated that filing a grievance was one of her options. She commented that they did not discuss that option very much because she was "more interested in getting a settlement". The grievor commented that her lawyer did not tell her that there were time limits under the collective agreement for the filing of a grievance. Ultimately, the grievor and her lawyer filed the grievance on or about August 14, 1995. In a decision between the parties, Re Humber College and OPSEU, unreported decision of a board of arbitration chaired by Howard Brown, dated February 18, 1992, the board described the mandatory nature of the time limits in the instant collective agreement and emphasized that there was no provision in the Colleges Collective Bargaining Humber College. Act to allow a board of arbitration the discretion to vary the time limits (see pp. 6-7 of Re) In the instant matter, the grievor was experiencing personal problems with illnesses in her immediate family during the relevant time period. The Board of Arbitration, however, is unable to exercise a discretion to relieve against time limits in the face of the mandatory language of the collective agreement and in the absence of legislation expressly providing a board of arbitration with such discretion. Accordingly, the issue is whether the grievor acted within the time limits set by the collective agreement for filing a grievance. The Board of Arbitration concludes on the evidence that with respect to the grievor's complaint regarding discrimination "on the basis of a physical and/or mental handicap by wrongfully terminating the employee" and her complaint respecting an alleged failure to accommodate, "the circumstances giving rise to the complaint" either occurred or came to her attention or ought reasonably to have come to the attention of the grievor, at the latest, by June 5, 1995, the day she received her letter of termination. By June 5th, the grievor was fully aware of the steps the College had taken to accommodate her. Moreover, respecting her discrimination complaint, the grievor was well aware, by June 5th, of the basis of the College's decision to terminate her. The grievance, however, was not filed until on or about August 14, 1995, over two months later. Accordingly, the grievance as it relates to a complaint that the College failed to accommodate her and/or discriminated against her on the basis of physical and/or mental handicap by wrongfully terminating her is untimely because it was filed well outside the mandatory 15-day time limit in article 18.6.1 of the collective agreement. Regarding the complaint against wrongful termination without just cause, the grievor was "advised in writing of ... her dismissal" on or about June 5, 1995. Pursuant to the terms of article 18.7.2, she had 15 days from June 5th to "present ... her grievance in writing to the President ...". Because the grievor declined to file a grievance against her termination for over two months following her receipt of written notification, she fell well outside the scope of the mandatory time limits under article 18.7.2 of the collective agreement. The Board does not accept the submission made on behalf of the grievor that the time limits would begin to run when the grievor became aware that the filing of a grievance was the appropriate action to take to challenge her termination. To accept this standard would run directly contrary to the clear and unambiguous standards for the triggering of time limits that are set out in articles 18.6.1 and 18.7.2 of the collective agreement. The adoption of such a standard would be tantamount to amending the collective agreement, something the Board of Arbitration is precluded from doing under article 18.7.5 of the collective agreement. In the result, for the reasons set out above, the Board of Arbitration accepts the College's preliminary objection based on time limits and concludes that it is without jurisdiction to entertain the grievance on its merits. Accordingly, the grievance is hereby dismissed. DATED at Toronto this 12th day of June Pamela C. Picher - Chair I CONCUR"Ron Hubert" College Nominee I CONCUR"Sherril Murray" Union Nominee