HomeMy WebLinkAboutGibbs 97-09-19IN THE MATTER OF AN ARBITRATION
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(hereinafter referred to as "the Union")
- and -
FANSHAWE COLLEGE
(hereinafter referred to as "the College")
Grievance of K. Gibbs
Before:M. G. Mitchnick-Chair
S. Murray -Union Nominee
R. Hubert-College Nominee
Appearances:
For the Union:
D. Wright -Counsel
G. Fordyce -Chief Steward, Local 110
K. Gibbs -Grievor
For the College:
R. Atkinson -Counsel
G. Rozell -Manager, Human Resources
Hearing held in London on March 19th, 1997
A W A R D
This matter involves the lay-off of Kathy Gibbs from the faculty of the College's Health
Sciences Division. To the point of her lay-off notice issued April 1996, Ms. Gibbs was a full-
time professor in the Registered Nursing program. With the "re-training" period her lay-off
ultimately was effective August 4th, 1996, and the grievor is pressing no claim that her "lay-off"
for the four weeks prior to the commencement of the fall semester in September was improper.
She does, however, assert that the College should have maintained her in full-time employment
with the start of the new school year, based on the partial-load and part-time course loads that
then were available. In the week prior to the hearing of this matter the Union for the first time
indicated to the College that it intended to rely on the provisions of Article 27.09B ("Recall").
The College raises more than one preliminary objection in this matter, but the one that has been
placed before the board for determination at this point is that the claim as now described above
represents not a "lay-off" grievance (as originally filed) but an entirely new "recall" grievance
that has never been filed or discussed with the College, and that is now out of time and ought not
to proceed. The Union responds that this is not a "new" grievance at all, that it is the grievance
that the parties have been talking about throughout, and that it has simply added a reference to a
further section of the collective agreement in its argument.
By way of background, the present local parties had a "no lay-off" agreement running
from April 1, 1993, to March 31, 1996. Reflecting announced transfer cuts throughout the
system, however, the College in November 1995 declared an "extraordinary financial exigency"
under Article 29 of the collective agreement, with a view to effecting widespread lay-offs in the
coming year. Article 29 provides:
29.01
When a College plans to reduce the number of full-time regular employees
who have completed the probationary period of lay-off of five percent or 20
employees whichever is less because of an extraordinary financial exigency the
following provisions shall apply prior to the application of the procedures set out
in 27.05 (vii) and 27.06.
29.02
In the above circumstances the College shall give written notification to
the Union Local President and the College Employment Stability Committee
(CESC) of the College's plan to reduce the number of full-time regular employees
who have completed the probationary period by lay-off of five percent or 20
employees whichever is less and indicate the courses, programs, and services to be
reduced or eliminated and provide the Union Local and the CESC with the
budgetary data used by the College in reaching its tentative decision for a planned
staff reduction.
29.03
During the 30 calendar day period following such notification, the CESC
shall be given an opportunity to present its recommendations or advise on
measures to deal with the extraordinary financial exigency that may include:
(i)the budgetary measures other than, or in addition to, reduction
in the full-time academic salary budget, which might be resorted
to in order to prevent or minimize such salary budget reduction;
(ii)whether the utilization of other means such as normal
retirement, voluntary early retirements, leaves or transfers can
postpone or alleviate the need to discontinue appointments;
(iii) the size of the required reduction, if any, in the full-time
academic salary budget;
(iv)a set of priorities for meeting the exigency and a proposal on
how any required reductions in the full-time academic salary
budget could be accommodated within such priorities;
(iv)whether or not, and to what extent, any required reductions
could be accommodated, in whole or in part by:
(a)adjusting faculty instructional assignments;
(b)curtailing certain academic programs.
29.04
The College shall not proceed with its plan to reduce the number of full-
time employees referred to in 29.01 until the expiry of the 30 calendar day period
referred to in 29.03 or receipt of the CESC's recommendations or advice,
whichever should first occur...
That "CESC" process in fact was gone through from November to March, and at the end of it 83
notices of lay-off were issued by the College (and out of these, 55 staff members have since been
laid off, with 18 of them being in the Nursing Program, including persons with greater seniority
than the grievor). It might be added that the CESC as well plays a role in considering the
placement options for individual employees targeted for potential lay-off, as set out in Article
27.05 of the collective agreement:
27.05
When a College plans to lay-off or reduce the number of full-time
employees who have completed the probationary period, or plans the involuntary
transfer of such employees to other positions than those previously held as a result
of such planned lay-off or reduction of employees the following procedure shall
apply:
(i)The College will notify the Union Local President and the
College Employment Stability Committee (CESC) of the
planned staff reduction and the course, programs or services
affected.
(ii)Within several calendar days of the receipt of such notification,
the CESC shall meet for the purpose of the College advising of
the circumstances giving rise to the planned staff reduction and
the employees affected.
(iii)If requested by a member of the CESC within three calendar
days following the meeting under 27.05 (ii), the CESC shall
meet within seven calendar days of receipt of such request for
the purpose of discussing the planned staff reduction, the
circumstances giving rise to the reduction, the basis for the
selection of the employees affected and the availability of
alternative assignments. It being understood that the College
reserves the right to determine the number and composition of
full-time, partial-load and part-time or sessional teaching
positions, the College shall give preference to continuation of
full-time positions over partial-load, part-time or sessional
positions subject to such operational requirements as the quality
of the programs, their economic viability, attainment of program
objectives, the need for special qualifications and the market
acceptability of the programs to employers, students and the
community. The CESC may require that further meetings be
held.
(iv)The CESC and the parties shall maintain the confidentiality of
the meetings and the identity of all employees discussed except
as specifically waived by mutual consent of the Union Local
and the College.
(v)Additional representatives of the College and the Union in equal
numbers may attend CESC meetings under 27.05(ii) and
27.05(iii) where requested by the CESC to assist the committee.
However, the attendance of additional persons pursuant to this
paragraph shall not cause any delay in the meetings or the notice
to individuals affected by the staff reduction.
(vi)When a College decides, following such meetings, to proceed
with a lay-off of one or more employees who have completed
the probationary period written notice of lay-off of not less than
90 calendar days shall be given to employees being laid off. If
requested by the employee a College representative will be
available to meet with the employee within three calendar days
to discuss the basis of the College selection of the employees
affected.
Employees subject to lay-off under this collective agreement are entitled to, in particular,
the following rights:
27.06
When the College decides to lay off or to reduce the number of full-time
employees who have completed the probationary period or transfer involuntary
full-time employees who have completed the probationary period to another
position from that previously held as a result of such lay-off or reduction of
employees, the following placement and displacement provisions shall apply to
full-time employees so affected. Where an employee has the competence, skill
and experience to fulfil the requirements of the full-time position concerned,
seniority shall apply consistent with the following ...
A series of options for displacement, in descending order, are then laid out. Failing placement
under any of these options, Article 27.06 stipulates in the next subparagraph (viii):
(viii)(a)Failing placement under 27.06 (vii) (a) [to displace a
"sessional"], or where the employee has waived in writing the
right in 27.06 (vii), such employee shall be reassigned to
displace a part-time employee upon acceptance of the identical
employment conditions as the part-time employee concerned
provided that:
(i) the displacing employee has the competence, skill and
experience to fulfill the requirements of the position
concerned; and
(ii) the part-time employee being displaced has lesser months
of service with the College as determined in Appendix IX
than such displacing employee's months of seniority.
(viii)(c)Failing placement under 27.06 (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.
(viii)(d)At the termination of the period referred to in 27.06 (viii)(c),
such employee shall be reassigned to a vacant full-time position,
if the employee has the competence, skill and experience to
perform the requirements of a vacant full-time position.
(viii)(e)Failing placement under 27.06 (viii)(d), such employee shall be
laid off without further notice.
The grievor, Kathy Gibbs, was one of those for whom no position was seen to be
available beyond the then-current winter/spring term. Hence she received the following 90-day
notice of lay-off on April 1, 1996 -- at the same time releasing her for "retraining activities"
effective May 2nd (subsequently adjusted to a "lay-off" date of August 4th, and a release date of
May 6th, 1996):
Dear Ms. Gibbs,
Confirming your discussion with Edith Davis, I very much regret to inform you
that it will be necessary to lay you off effective 31st July, 1996. You will be
granted release as of 2nd May, 1996 from all assigned duties for the purpose of
engaging in retraining activities.
The College will continue to investigate the possibility of alternative assignments
for you. I would encourage you to contact the Human Resources department to
discuss your qualifications and experience and your rights under the Collective
Agreement.
We wish you every success in your future endeavours and regret that
circumstances have caused us to take this action.
Yours sincerely,
H.W. Rundle
President.
Ms Gibbs grieved that notice of her pending lay-off as follows:
To:Pat Kirkby
From:Kathy Gibbs
Date:April 15, 1996
Regarding:Grievance - Improper Layoff
I grieve that my layoff is improper, issued in bad faith and is contrary to the
provisions of the Collective Agreement.
I am entitled to displace full-time and non full-time positions within the following
divisions:
Health Science Division
Nursing Education
Continuing Education Division-RN
-RPN
-Health Care Aide
I contend that I have the competence, skill and experience to fulfil the
requirements of these positions and that my seniority is greater than any persons
occupying the above.
I also contend that I have the competence, skill and experience to perform the
requirements of the vacant positions in:
Health Science Division
Nursing Education
Continuing Education Division-RN
-RPN
-Health Care Aide
As remedy, I request that the College rescind my layoff notice immediately and
provide me with details of my workload assignment as outlined in Article 11 of
the Collective Agreement. If this layoff notice creates any break in employment
between now and the time that this grievance is resolved, then I also seek a
retroactive payment for all salary plus interest, benefits, seniority, etc. that I
should have been entitled to.
The College on May 31st responded to that grievance (amongst others of Ms. Gibbs) as follows:
FANSHAWE COLLEGE
LONDON, ONTARIO
MEMO TO:Kathryn Gibbs
cc: Local 110
FROM:Gail Rozell
DATE:May 31, 1996
SUBJECT: Your Grievances
We are in receipt of your memo, dated May 22, 1996, referring the following
grievances to Step 2:
Our Ref#Subject
A96-153Improper Training Period (Non Teaching Week)
A96-154Improper Training Period (PD Days)
A96-155Statutory Holidays
A96-156Bad Faith
A96-157Improper Layoff.
Would you please provide Linda Watson (extension 4656) in our office with dates
and times that you would be available so that she can schedule a Step 2 meeting.
With regard to your grievance referring to improper layoff, your grievance does
not state the positions occupied by full-time and non-full-time employees whom
you feel you are entitled to displace, per Article 27.08A of the Collective
Agreement. Would you please provide Human Resources, in writing, with the
positions before the Step 2 meeting.
Gail Rozell, Manager
Human Resources
Article 27.08 provides:
27.08A
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 32.02 for presenting complaints shall apply from the date
written notice of lay-off is given to the employee.
27.08B
If the grievance is processed through Step 2, the written referral to
arbitration in 32.03 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
grievor shall be entitled to arbitrate the grievance thereafter under only one of (i),
(ii), (iii), (iv), (v), (vi), (vii), or (viii) of 27.06.
There is, however, no indication of any further clarification by the grievor of her position at that
stage (the persons carrying the various less-than-full-time assignments to which she was looking
in the fall not having yet been determined by the College), and a Step 2 meeting presumably took
place in the normal course. The particular grievance here in question is A96-157, and the
College responded to the grievor's series of grievances sparked by her lay-off as follows:
TO:K. Gibbscc: OPSEU, Local 110
Terry Boyd
Human Resources
FROM:John Smith
DATE:96 07 18
SUBJECT:Your layoff grievances (our ref.#s A96-153-157
inclusive) - Step II responses
The College responses are as follows:
A96-153-156 (inclusive)
The College position remains in that these grievances do not raise any issues
which could be the subject matter of a grievance under the Collective Agreement.
In any event, the College has followed the provisions of the Collective
Agreement. The grievances are denied.
A96-157
You have challenged that several full-time faculty positions should be created
from work assignments in various divisions to which the College responses are as
follows:
Simcoe
Principal, Andy Newbery advises that your skill, competence and experience do
not allow you to displace L. Purgret or to do the field placement.
Woodstock
Attached is an interoffice memorandum from Principal, Sheri Knott in which she
notes that you are unable to deliver the courses identified.
Human Services
Attached is a copy of an interoffice memo from Chairperson, Michael Hoare,
which outlines the teaching requirements for various programs within Human
Services. He advises that you are unable to deliver the courses identified.
Health Sciences
Please find attached a memo outlining why full-time faculty positions will not be
created concerning the courses identified.
Manufacturing Sciences
The Chairperson, Carl Zajc, advises you would be unable to displace the full-time
staff assigned to the courses identified.
General Studies
See attached memo in which Chairperson, Terry Boyd, indicates you are unable to
deliver the courses identified.
Information Technology
Attached is an interoffice memorandum from Chairperson, Dennis Dowker, which
indicates you would be unable to deliver the courses identified.
Tourism and Hospitality
Chairperson, Mike Hanwell, advises that NUTR203 is a course designed for
hospitality students dealing mainly with menu planning for the industry and
therefore experience both in the hospitality industry and some nutrition
background are required. You would, therefore, be unable to deliver this course.
St. Thomas
Principal, Tom Pickard, advises that there is only a 5-hour part-time assignment in
the HCA program, therefore there is no full-time position to be filled.
Continuing Education Programs and Courses
It is the position of the College that CE courses are excluded from the application
of Article 17 for all purposes (Article 27.16).
In summary, there does not appear to be a full-time faculty position available for
which your skills, competence and experience would allow you to fill, therefore
the grievances are denied.
John Sunseth
Vice-President, Academic
Attachments
The memo relating to the Health Sciences Division in particular provided:
TO:Linda Watson
Subject:Lay-off response
Health Sciences
- Nurs 179-13 sections-12 hours
- Nurs 422/479/480- 3 sections-12 hours
- Nurs 171- 4 sections- 10 hours
The above-mentioned courses will be covered by Instructors not Professors.
However, the College will give consideration to laid off professors when
filling.
Due to the changing admissions the theory courses are currently under
review and may be assigned to FT faculty.
(emphasis added)
To those Step II responses Ms. Gibbs reacted as follows:
Memo
To:Howard Rundle
From:Kathryn Gibbs
Date:July 31, 1996
Regarding:Referral to Arbitration
I am in receipt of the College's response to my Step II meeting. I do not accept
your position on any of my grievances.
Please consider this memo to be a referral of A96-157. In accordance with Article
27.08 B, I refer under Article 27.06(iv). There are several combinations of
partial-load assignments in the Health Sciences division. I am not able to name
individuals because this work has not been assigned.
Article 27.06(iv), as the ensuing sentence indicates, refers only to the combining of two "partial-
load" positions. However, the grievor continued her response in that memo as follows:
I would like to put the College on notice that I may change my election under
Article 27.08 B, due to the failure of the College to give full and adequate
information to the Union or me regarding the availability of teaching positions for
the upcoming academic year and other information as required to be given to the
Union under Article 27.05 of the Collective Agreement. The Union and I are not
in possession of all information required to make an informed election under
Article 27.08 B with respect to the positions being claimed by me.
In addition, I refer A96-153 to A96-156.
I am willing and would prefer to have all grievances consolidated and heard
before the same arbitrator.
I hope that I shall be returning to the College soon.
"Kathryn Gibbs"
c.c. OPSEU Local 110
It is against that background of facts, therefore, that the parties have argued the present objection.
In assessing this matter, we agree with arbitrator Jane Devlin when she observes in York
University (1985), 20 L.A.C. (3d) 187, at 191:
The purpose of the written grievance is to put the other party on notice of
the nature of the complaint and to provide sufficient details so that the issue raised
may be dealt with intelligently by the parties during the grievance procedure and
at arbitration, in the event that this becomes necessary.
This is made particularly clear, as the College notes, under the grievance and arbitration
provisions of the instant collective agreement. Article 32.03, for example, stipulates at "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 issue remains, however, as the Union suggests, whether notwithstanding the subsequent
identification of any additional articles to buttress the argument, the grievance or dispute remains
in essence what the parties thought it was in the first place, and have been addressing in the
discussions and consideration that have taken place in the grievance procedure. As arbitrator
Devlin continued:
In these circumstances, much clearer language would be required in the collective
agreement to support a finding that the written grievance was intended to operate
as a straight-jacket, which is the effect of the university's contention in this case.
It is also of note that the university's position would result in there being greater
rigidity in the grievance form than is the case with pleadings in civil actions.
Grievances are generally possibility of this occurring,
prepared at the local level however, is not sufficient to
with counsel being involved support the technical position
only as the matter is being advanced with regard
processed to arbitration. At to the information to be
that time, however, it may contained on the written
become apparent that there grievance. It is, of course, in
are articles not specifically the interests of both parties to
referred to in the grievance provide as much detail and
which could assist the specificity as possible in
arbitration board in order that there is no
determining the issue raised misunderstanding with
in the grievance. Absent respect to the issue raised and
clear language, neither party in order that the grievance
ought to be precluded from procedure may be used to its
referring to such articles in fullest advantage.
order to ensure a considered
and fully informed With that perspective in mind, we have
determination on the merits. difficulty sustaining the College's objection,
In the event that the or at least do not come to the conclusion that
university is genuinely the grievance as filed and currently
surprised by a position being understood by us must be dismissed. The
advanced by the union, this grievor's claim, as the foregoing
can be dealt with by the board documentation makes clear, had always
or the arbitrator, as the case included an assertion of her right to displace
may be, at the hearing. The"non full-time positions within ... Health
Services Division". As the Union notes, it is to decide for the issue that has been raised
now limited to that. Her grievance of course before us, and is all that we do decide. We
talks about "rescinding any layoff notice" should add for completeness that at the end
because it was filed in April, prior to the of the College's closing argument suggestion
date when the lay-off was going to come was made that, with the Union now trying to
into effect. That particular statement of the recast this as a "recall" grievance, the
grievance is likely to be outdated by the time College may have been "lulled" by engaging
any of these College lay-off grievances get in the kinds of discussions that it did. In
to a hearing (i.e., the lay-off date will have response the board asked counsel whether,
arrived, and the grievor will already have on the contrary, from the face of the
been laid off). But more importantly in the documentation the College might not be said
present case, it appears abundantly clear to have "waived" the kind of preliminary
from the grievance correspondence that the objection it was now seeking to make, in
College knew exactly what the nature of the calling for a fresh grievance to have to be
grievor's concerns were, and investigated filed. After conferring with his advisors
and gave its reply in full detail on that basis. counsel advised the board that there had in
That included an awareness on the College's fact been a letter to the Union making it
part that the grievor was claiming "that clear that the College did not feel that under
several full-time faculty positions should be the instant grievance it had to consider the
created from work assignments in various question of work opportunities for the
divisions" [College Reply, dated July 18th, grievor in September. At that point counsel
1996], and the College proceeded to outline for the Union noted that it had already been
all of the various ways in which the grievor's agreed that the board had before it all of the
qualifications failed to support her in any evidence that the parties thought was
event. It appears obvious that that detailed relevant, and the Chair indicated that since
investigation and reply by the College did the Union itself was not advancing the
not relate to the final four weeks of the argument of "waiver" in any event, that line
summer (and if it did, we would have of inquiry (the effect of which would be to
needed evidence of that surprising prevent the employer from even raising the
circumstance); rather, with the grievor present form of objection) need not be
gainfully employed in the spring of 1996, pursued.
and (including training) on through most of For the reasons given, however, the
the summer, the focus of everyone (right board does not find that the present
from the point of her lay-off notice) appears grievance must be dismissed. In saying that,
to have been on the availability of a position however, the board would note two further
for her, or not, for the next school year points. The first is that it is the nature of the
commencing in September. That was the College sector (and a large part of the
practical issue for the grievor raised by this difficulty in dealing with the application of
particular grievance, and all parties, from the its lay-off/ recall provisions) that the
evidence that we have, appear to have dealt situation with respect to a College's needs is
with it in that way. That is all that we need fluid, and constantly being altered, by
enrolment circumstances in particular. The matter, we do view this, as we have said, as
critical point to our finding here is that the essentially the same grievance as initially
grievor in the present grievance from the filed (as the Union has urged), and the
outset was challenging the decisions that the obligations of the grievor to comply with
College appears to have made regarding the Article 27.08B are no different whether one
availability of suitable work for her as of the puts the cast on it now of a "lay-off"
beginning of the coming term in September. grievance, or technically (being after the
The second point to note is that under this August 4th lay-off date) a "recall to work"
collective agreement it is the specific grievance. That is, the claim of the grievor
intention of the parties, as set out in Article remains one properly made out through the
27.08, that all complaints of "improper lay- vehicle of the enumerated heads under
off" be clearly and narrowly focused, in Article 27.06; not through the vehicle of
particular by the point of the parties Article 27.09B. And Article 27.08B must be
proceeding to arbitration on the "merits" of complied with. In that latter regard the
the grievance. Article 27.09B, dealing board would only add that the Union advised
specifically with "Recall", provides: at the previous hearing that it intends to call
evidence to support a "waiver" argument,
27.09 B and that it also will be advancing an
Before hiring full-
argument on the applicability of Article
time employees, an individual who
27.O6(i) here (i.e., reassignment to a "full-
has been laid off under 27.06 will be
time" position, on the basis that there ought
recalled to that individual's former or
to have been one created by the College).
another full-time position, provided
The parties appear to be in agreement that
that the individual has the
that is to be left to be dealt with in
competence, skill and experience to
conjunction with the hearing on the "merits",
fulfill the requirements of the
however, and the case may now be
position concerned. Such recall
scheduled to be heard in accordance with the
entitlement shall apply during the
ruling of the board rendered above.
period of two years from the date of
lay-off.
Dated at Toronto this l9th day of September,
It is not entirely clear why counsel for the
Union felt it appropriate to now cast the
1997\
grievance of Ms. Gibbs technically as a
"recall" grievance, but we presume it was
____________________G. Mitchnick
simply out of an abundance of caution, in
light of the lack of any dispute over the
"S. Murray" S. Murray
period between the grievor's "effective date"
of lay-off (August 4th), and the
"R. Hubert" R. Hubert (see
commencement of the real term in question
here, September 1996. But we would
Addendum)
simply note that in proceeding with the