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HomeMy WebLinkAboutChakravarty 96-01-195B769 CAMBRIAN VS CHAKRAVARTY IN THE MATTER OF AN ARBITRATION B E T W E E N : ONTARIO COUNCIL OF REGENTS FOR THE COLLEGES OF APPLIED ARTS AND TECHNOLOGY IN THE FORM OF CAMBRIAN COLLEGE (hereinafter called the "College") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR ACADEMIC EMPLOYEES) (hereinafter called the "Union") MahadevChakravarty OPSEU File No. 95B769 (hereinafter called the "Grievor") ARBITRATOR: Richard H. McLaren, C. Arb. Jon McManus, Union Nominee PatriciaHennessy, College Nominee COUNSEL FOR THE COLLEGE: Steven Shamie COUNSEL FOR THE UNION: Joanne Fox A HEARING IN RELATION TO THIS MATTER WAS HELD AT SUDBURY, ONTARIO, ON NOVEMBER 22, 1995. PRELIMINARY AWARD Counsel for the College raised a preliminary objection as to the jurisdiction of the Board to hear and determine the grievance for which this Board was established. Counsel agreed at the hearing to the following facts in support of the arguments with respect to the preliminary objection: 1. Mr. Chakravarty was born December 25, 1929. 2. His seniority date with the College was August 1, 1967. 3. Following application for early retirement, the Grievor retired from the College pursuant to its policy effective November 30, 1993, at which time he was age 63. 4. He was paid $61,604.31, $54,000.00 of which was paid into a registered retirement savings plan, and the balance of which after deductions was paid to him by cheque dated November 30,1993. 5. The grievance was filed on August 24, 1994 alleging that: The College did not inform the Grievor of his right to retire at the end of the contract year in which he turned 65. For purposes of the Union's argument in response to the College's preliminary objection as to jurisdiction it was also agreed that there would be a stipulation which assumed that a misrepresentation was made by the College as to when the Grievor would cease working following reaching the age of 65 as provided for under the Collective Agreement. It was agreed by Counsel and the Board that this would be assumed to be a fact for purposes of this argument. It was further agreed that in the event that the preliminary objection was rejected, this assumed misrepresentation would have to be proved in the Union's case. Then, depending on what the Board established to be the facts with regard to the misrepresentation, it might have an impact on this preliminary Award. This would be the subject of argument if the matter proceeds to the merits. The argument of the College is threefold. First, Mr. Chakravarty is not an employee, and therefore unable to launch a grievance under Article 32.01. If that difficulty is overcome, he must have been employed in the four months preceding the filing of the grievance in August of 1994, which he cannot establish because of being in retirement. In the alternative, it was argued that even if the grievance can be launched under Article 32.01, the particular grievance launched in this proceeding was untimely and well beyond the limits established in Article 32.02 through 32.05. In support of its arguments the College made reference to the following case: An unreported decision between Cambrian College and Ontario Public Service Employees Union a decision by a Board of Arbitration chaired by Arbitrator Swan dated October 18, 1994. In reply to the submissions of the College, it was argued on behalf of the Grievor and the Union that while the time limits in Article 32.02 to 32.05 are mandatory, the provisions found at the outset of the grievance procedure in Article 32.01 are merely directory. As a result of being directory, this provision does not require enforcement by the Board so as to say that the grievance had been filed too late. It was the submission of the Union that the misrepresentation affected the Grievor's assessment of the early retirement package. The essence of that affect was that there was a right which had vested in the Grievor at the point of his decision for application and subsequent acceptance of the early retirement. This vested right is analogous to a deemed quit where there has not been a voluntary severing of the employment relationship. On the basis of the fact that the vested right arose during the employment relationship, the former employee ought to be able to launch the grievance under the grievance procedure. It was further submitted that it is this vested right which gives rise to the grievance. The College had only referred to the provisions of Article 32.01 in its replies to the grievance and has waived any right to assert lack of timeliness in the filing of the grievance. In support of its position reference was made to the following cases: Re Genstar Chemical Limited, O.L.R.B.R. 835, (Haladner, 1978); Re The Queen in Right of Ontario et al. (1985), 51 O.R. (2d) 474 (H.C.J.); An unreported decision between The Crown in Right of Ontario (Ministry of Revenue) and Ontario Public ServicesEmployees' Union, a decision by a Board of Arbitration chaired by Arbitrator Stewart dated April 16, 1991; Re Corporation ofMunicipality of Casimir, Jennings & Appleby, 5 L.A.C. (4th) 443 (Joyce, 1989); Re Atomic Energy of Canada Ltd., 41 L.A.C. (4th) 310 (Knopf, 1994). The relevant clauses of the Collective Agreement read as follows: ARTICLE 27 JOB SECURITY 27.03 E Seniority shall be lost and employment deemed terminated if: (iii) an employee resigns or leaves the employ of the College; ARTICLE 32 GRIEVANCE PROCEDURES 32.01 Articles 32.02 to 32.05 inclusive apply to an employee who has been employed continuously for at least the preceding four months. Complaints 32.02 It is the mutual desire of the parties that complaints of employees be adjusted as quickly as possible and it is understood that if an employee has a complaint, the employee shall discuss it with the employee's immediate supervisor within 20 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 in order to give the immediate supervisor an opportunity of adjusting the complaint. The discussion shall be between the employee and the immediate supervisor unless mutually agreed to have other persons in attendance. The immediate supervisor's response to the complaint shall be given within seven days after discussion with the employee. Grievances 32.03 Failing settlement of a complaint, it shall be taken up as a grievance (if it falls within the definition under 32.12 C) in the following manner and sequence provided it is presented within seven days of the immediate supervisor's reply to the complaint. It is the intention of the parties that reasons supporting the grievance and for its referral to a succeeding Step be set out in the grievance and on the document referring it to the next Step. Similarly, the College's written decisions at each step shall contain reasons supporting the decision. Step One An employee shall present a signed grievance in writing to the employee's immediate supervisor setting forth the nature of the grievance, the surrounding circumstances and the remedy sought. The immediate supervisor shall arrange a meeting within seven days of the receipt of the grievance at which the employee, a Union Steward designated by the Union Local, if the Union Local so requests, the Dean of the Division and the immediate supervisor shall attend and discuss the grievance. The immediate supervisor and Dean will give the grievor and the Union Steward their decision in writing within seven days following the meeting. If the grievor is not satisfied with the decision of the immediate supervisor and Dean, the grievor shall present the grievance in writing at Step Two within 15 days of the day the grievor received such decision. Step Two The grievor shall present the grievance to the College President. The College President or the President's designee shall convene a meeting concerning the grievance, at which the grievor shall have an opportunity to be present, within 20 days of the presentation, and shall give the grievor and a Union Steward designated by the Union Local the President's decision in writing within 15 days following the meeting. In addition to the Union Steward, a representative designated by the Union Local shall be present at the meeting if requested by the employee, the Union Local or the College. The College President or the President's designee may have such persons or counsel attend as the College President or the President's designee deems necessary. In the event that any difference arising from the interpretation, application, administrator or alleged contravention of this Agreement has not been satisfactorily settled under the foregoing Grievance Procedure, the matter shall then, by notice in writing given to the other party within 15 days of the date of receipt by the grievor of the decision of the College official at Step Two, be referred to arbitration. 32.04 A Any matter so referred to arbitration, including any question as to whether a matter is arbitrable, shall be heard by a Board of three arbitrators composed of an arbitrator appointed by each of the College and the Union and a third arbitrator who shall be Chair. The Chair shall be selected from the following panel: G. Brent R. MacLaren (sic) H. Brown M. Mitchnick K. Burkett M. Picher D. CarterP. Picher J. Devlin S. Schiff R. Howe O. Shime P. Knopf M. Teplitsky R. MacDowell Representatives of the Council and the Union shall meet monthly to review the matters referred to arbitration and agree to the assignment of a Chair to hear each of the grievances. The Chair shall be assigned either by agreement or, failing agreement, by lot. The parties may from time to time, by mutual agreement, add further names to such panel. Also, the parties may agree to a supplementary list of persons to act on a single or number of occasions. Following selection of a Chair, the College and the Union shall each appoint its arbitrator within ten days and forthwith notify the other party and the Chair. However the College and Union may mutually agree, prior to selection of a Chair, to arbitration by a sole arbitrator. The sole arbitrator shall be selected from the panel as in the case of a Chair and the other provisions referring to an arbitration board shall appropriately apply. 32.04 B No person shall be appointed as an arbitrator who is or was within six months prior to such appointment an employee or is or has within six months prior to such appointment, acted as solicitor, counsel, advisor, agent or representative of either of the parties or the College concerned. Any Chair who declines to act on five consecutive occasions shall be removed from the panel and a replacement selected by mutual agreement of the parties. 32.04 C The finding of the majority of the arbitrators as to the facts and as to the interpretation, application, administration or alleged contravention of the provisions of this Agreement shall be final and binding upon all parties concerned, including the employee(s) and the College. 32.04 D 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. 34.04 E The College and the Union shall each pay one-half the remuneration and expenses of the Chair of the arbitration board and shall each pay the remuneration and expenses of the person it appoints as arbitrator. General 32.05A If the grievor fails to act within the time limits set out at any Complaint or Grievance Step, the grievance will be considered abandoned. 32.05 B If an official fails to reply to a grievance within the time limits set out at any Complaint or Grievance Step, the grievor may submit the grievance to the next step of the grievance procedure. 32.05 C At any Complaint or Grievance Step of the grievance procedure, the time limits imposed upon either party may be extended by mutual agreement. 32.05 D The time limits set out at the Complaint or Grievance Steps including referral to arbitration shall be calculated by excluding the period from Christmas Day to New Year's Day inclusive. 32.05E At a meeting at any Step of the grievance procedure, the employee may be represented by a Union Steward if the employee desires such assistance. 32.05 F The arbitration board may dispose of a grievance without further notice to any person who is notified of the hearing and fails to appear. 32.05 G Where the arbitration board determines that a disciplinary penalty or discharge is excessive, it may substitute such other penalty for the discipline or discharge as it considers just and reasonable in all the circumstances. 32.05 H It is understood that nothing contained in this Article shall prevent an employee from presenting personally a grievance up to and including a hearing by the arbitration board without reference to any other person. However, a Union Steward may be present as an observer, commencing at Step One, if the steward so requests. 32.05 The College and the Union Local shall each keep the other advised in writing of the names of its respective representatives authorized to act on its behalf under the Grievance Procedure. The general statement on retirement policy found in the College's manual, and filed as Exhibit 6 in these proceedings reads in part as follows: GENERAL STATEMENT The normal retirement age for all College employees is age 65. Listed below are the conditions or procedures relating to retirement. PROCEDURE 1. Normal Retirement a) Academic Staff An academic staff member has the option of retiring at the end of the month, end of the semester or end of the contract year in which his/her birthday occurs. (Exhibit 6) The "Early Retirement Assistance Plan" { "Plan" } utilized by the College was filed as Exhibit 7. Under its provisions, only those who were age 63 or less could use the Plan. At the point when the Grievor retired, he was still 63 years of age. However, the Grievor was within 24 days of becoming 64 years of age and ineligible under the Plan. The Grievor made application and was accepted by the College to participate in the Plan. The purpose of the misrepresentation, which is assumed in this analysis, would relate to the Grievor's valuing of the incentives proffered under the Plan in contrast to the continuing benefits of employment for the time remaining for him to work if he did not take up the Plan. The document which explains the Plan provides at page 2 in Section 3(b) entitled "Definitions" as follows: b) Date of Retirement Administrative, Support Staff, and Faculty: _ Anniversary of the birthdate; or _ End of the month of the anniversary of the birthdate; or _ In the case of faculty, end of the semester or end of the academic year in which age 65 is reached. (Exhibit 7) In both the College's general policy manual and in its Plan, the information as to the operation of the normal retirement date is available and is explicitly set out to be read by those desiring to utilize the Plan. In the policy manual the particular retirement date is at the option of the employee. The Plan is not as specific on the point of having an option. The Grievor made an application under the Plan. Therefore, he must be taken to have read the Plan. He had in the Plan and other documents all of the information as to the possible termination dates for his normal retirement. Even on the assumption that the College misrepresented when the Grievor would cease working following reaching age 65 all any College representative would be telling the Grievor was one of the possible dates upon which he would likely be retired given the information in the manual and the Plan. As he would become 65 in December 1994, which also coincides with the end of the semester, he was being told that when the autumn of 1994 rolled around he would likely be retired as of the month in which he turned 65. It is a statement centring upon the normal retirement. That statement or representation must be as to a fact in the future by some two years at the time it is assumed to have been made. What the representative of the College was doing was indicating a likely scenario of several possibilities for the actual normal retirement date. All of these possibilities are summarised in the very documents the Grievor would have had to have read in order to make the application for the Plan. In order for a misrepresentations to occur in contractual matters, it requires a misstatement of an existing legal relationship as to a present fact not as to future intentions, opinions or other future matters. Therefore, this Board does not find the circumstances which could give rise to a misrepresentation existed in this case. Therefore, there is no legal basis upon which to found a promissory estoppel. The presumed misrepresentation, even if it occurred, relates to future events and can not be said to be one which is an eligible operative misrepresentation on which an estoppel might be found. Without a representation which is an operative misrepresentation to found any estoppel arising from it, there can be no vested rights theory by which to circumvent the time limits of the Collective Agreement. The Board makes that determination without finding that if there was an operative eligible misrepresentation, it would have provided the basis for a vested right. There is no need to make such a determination in this Award because there is no eligible operative misrepresentation to found the estoppel. There was no eligible misrepresentation which could affect this matter. Should the Board be wrong in its finding that there is no eligible representation which is an operative misrepresentation to found the estoppel it would further find as follows. Misrepresentation is a concept in contracts law which gives some contractual effect to statements said outside of the documentation or contractual arrangement, and which can possibly give rise to the estopping of that documentation or contractual arrangement on the basis of the principles of fairness when it is equitable and reasonable to do so. It must be equitable to apply it. Here it is nine months later when a desire to rely on the misrepresentation becomes manifest. That is too long a time frame in which to use principles of equity to upset legal positions established by both the Retiree and the College. Furthermore, the tardiness of filing the grievance suggests that there was little reliance on the misrepresentation.For, if it were to be said that it was not known that the provisions of the Collective Agreement had been improperly stated as to their effect on the Grievor, then the Grievor would have not relied on them in making the early retirement application decision, and subsequently signing the document which put it into effect. The Grievor had all the correct information before him on which he could place his own reliance. Thus the equitable concept of a misrepresentation by the College, even when it is presumed to exist, does not give rise to the vested right of a contractual nature in respect of this grievance. At best it is something which should be addressed in the equities and fairness of the circumstances. That does not amount to a vested right which the employee had while an employee. The College made a future statement as to how it was thought the administration of the contract would apply to the mandatory retirement when it arose. On that basis, there can be no vested rights pursuant to the theories found in the cases supplied by the Union Counsel. The vested rights argument within the cases cited by Counsel for the Union often arose in a situation in which the collective agreement had expired and the new collective agreement was yet to come into force. In those situations, it was the intention of both parties for vested rights to exist within the interim period. Such intention was not evident here, as it was the intention of the parties for the employee to be terminated from his employ upon acceptance of the Plan. In the absence of any vested rights, there is no ability to look to an earlier time frame than the date of filing of the grievance. In the absence of any misrepresentations giving rise to vested rights in the Grievor, the Board may focus on the explicit provisions of the Collective Agreement and their application to this grievance. Article 32.01, which incorporates by reference Article 32.02 through to 32.05 applies to an employee, and not to former or retired employees Furthermore, it only applies to employees who have been "employed continuously for at least the preceding four months". The Grievor applied for and was accepted for the Plan. At page 2 of the Plan, at Section 3(d) entitled "Definitions", it is stated that "Employees accessing the Early Retirement Plan will be considered as having terminated their employment with the College." (Exhibit #7). By signing Exhibit # 8, the Grievor accepted this condition of his early retirement package. Therefore, he was no longer an employee of the College as of November 30, 1993. Article 27.03 E(iii) strips an employee of their seniority who resigns or leaves the employ of the College. At the point when the early retirement took effect on November 30, 1993, this provision applied and the employee was no longer an employee of the College, but a former or retired one. Therefore, this individual is a former employee, who is now retired. As a retiree, and not an employee within the meaning and requirements of Article 32.01, he is ineligible to launch a grievance under the Collective Agreement. Therefore, this Board is without jurisdiction to hear this grievance. In the further alternative, the equivalent predecessor provisions to Article 32.01 through 32.05 have been held to be mandatory, and a Board of Arbitration has no jurisdiction under the Colleges Collective Bargaining Act to relieve against the effect of the time limits contained therein. Despite the submissions of the Union Counsel that Article 32.01 could be considered to be directory because of the absence of any compulsory language or penalties, the determination of whether terms are mandatory or directory will turn on the construction of the agreement and the parties' prior interpretation of its terms in the absence of any change in the language. The Board agrees with the submissions of the College that these provisions have been well known between the parties and understood to be mandatory provisions, as was cited in a decision involving this College in a Board of Arbitration chaired by Arbitrator Swan, involving the grievance of a Mr. Glen E. Bailey in an unanimous decision dated October 18, 1994. Therefore, the Board concludes that Mr. Chakravarty is not an employee and, therefore, not able to activate the grievance procedure. Even if he were an employee, he has not been so in the four months preceding the grievance, which is required in Article 32.01, and could not file a grievance. Nevertheless, even if the Grievor was considered to be an employee and fit within Article 32.01 and a grievance could be filed, there is the issue of the mandatory time limits. In this case Mr. Chakravarty retired on November 30, 1993. The grievance was filed on August 24, 1994, more than nine months after the retirement date. There is a grievance on August 24, 1994 relating to events which preceded the retirement which occurred on November 30, 1993. Therefore, the grievance is filed far too late to be considered one which is timely even if the time limits were merely directory which they are not. The grievance must be deemed to be void and not arbitrable before this Board. Furthermore, in accepting the early retirement, the Grievor signed a document filed as Exhibit 8 in which it is stated: "As part of this agreement, you will immediately advise in writing the OPSEU Local Union and the Director of Human Resources that you are formerly withdrawing from any grievances filed under your name. Your signature at the bottom of this letter will constitute acceptance of the foregoing terms and conditions of your early retirement package." That statement is in effect waiving any grievances or right to grieve in accepting the early retirement. These provisions, coupled with the nine month delay in filing the grievance which almost placed it on the date on which the Grievor would have reached the age of 65, makes the grievance too late in the same sense as found in this Award in the absence of any misrepresentations. This is notwithstanding that the possible misrepresentations might, at best, affect the equity surrounding the entering into of the early retirement. For all of the foregoing reasons it is found that this Board is without the jurisdiction to hear the matter in that the grievance was not launched by someone who was entitled to utilize the grievance procedure. It is further found that the grievance was launched too late for it to meet the mandatory requirements of the grievance procedure found in Article 32 and this makes the grievance void and not arbitrable before this Board. For all of the foregoing reasons the preliminary objection of the College is upheld and the grievance is found to be not arbitrable. DATED AT LONDON, ONTARIO THIS 10TH DAY OF JANUARY 1996. Richard H. McLaren, C.Arb. I concur Jon McManus, Union Nominee I concur PatriciaHennessy, College Nominee