HomeMy WebLinkAboutWillett 99-11-05IN TEE OF AN ARBITRATION
BETWEEN:
-and-
Thome
late May, 1996. On October 1998, he a grievance alleging that certain acts or
omissions by the College had deprived him of his right to be recalled to a regular
grievance was out of time, that the time limits specified in the collective agreement were
also argued that the grievance was continuing in nature and arbitrable in any event.
determination on the preliminary issue has unfortunately been delayed by a series
circumstances, including the need for the parties to complete their submissions in
quality of the programs, attainment of the program objectives, the need for special
2.03 A The College give preference to the designation of fbll-time positions as
operational requirements as the quality of the programs, enrolment patterns and
Such recall entitlement shah apply during the period of two
1996-97 academic year and continuing in the 1997-98 academic year, and he also sought
the issues raised by the objection. Before his layoff the grievor had been
Education Department. On October 1996, following bis layoff, he had Sled a grievance
That grievance had proceeded to arbitration before a board
The grievor had Sled the grievance which was before us, he stated, because he knew that the
of the layoff notice on February 1996 (which had advised him that he would be laid off
effective May 28th 1996, although his layoff did not actually take effect until August of that
year). He had a sessional appointment January 1997 for six months. (Before that, he had
the College would change its mind and recall him. After that appointment was he
he had
April Ms. wrote to the grievor
College retained sessional teachers to staff the Construction and Maintenance Electrician
It
That position was taken when the grievance was
raised to the timeliness of the grievance.
initial grievance October 1996, and could not do so now with respect to that period.
hand. He suggested that Article 32.02 set up objective standard, so as an employee was
the attention of the employee, so that the circumstances which might be considered were not
restricted to those actually known at the time the grievance was Sled.
The grievance was a
Turning to the theory of the grievance, counsel argued that
Articles 2.02 and 2.03 imposed a second and third set of obligations which were ongoing in
was sufficient work for a full-time appointment to be made and raised the issue immediately.
the situation was in the diicult position of either raising the issue early on, thereby
such a proposition and that the test required a more complex analysis. In this case, counsel
argued, the College did not fail to raise its objection until a late stage, but did so promptly; it
counsel submitted that the right to grieve a failure to recall at the time
The Union had not
an issue and had not done so. As it was, any attempt by the Union to grieve in respect of
1997, Kruger); and Ontario Public Emulovees Union
(unreported, July 1993, Keller); St. Lawrence College and Ontario Public Service
Service Emolovees Union (unreported, November 1995, Brent); Seneca Colleee and
Ontario Public Service Emdovees Union (unreported, April 1988, Brent); Re Reeencv
.
Towers Hotel Ltd. Hotel
1994, Bendel); Arts and Technolow and Ontario
ubhc (unreported, December 1995, Burkett); Board of
. . .
Arts and and
A&&-
Bmolovees Union (unreported, October 1983, of
and 23
Ontario Public Service Emolovees Union 29 326 (Stewart); United
Automobile Workers. Local 510 and United of Canada 21 L.A.C. 64
..
Re Mohawk College of Arts and and Ontario Public Service Emolovees
(unreported, March 1978, H.D. Brown); and Re MacMillan Bloedel Limited.
Division and Paoer and Woodworkers of Canada. Local 8 (unreported,
,
.
circumstances which had come to her attention and asked that we not make a decision on the
the current proceeding. At our invitation, counsel then made written submissions on this
Those same counsel represented the parties in connection with a grievance dated March
information now being mentioned was readily available at the time at which the preliminary
objection was raised and that in any case the grievances dealt with different subject matter.
(providing for recall to an individual’s former or another position, subject to
for a period of two years from the date of lay and 27.69 C (providing for the
1997 (Tab D in the Employer% indicates that . . . it was agreed that there was no
In the
given to the designation of full-time positions as regular rather than partial load) and 27.06
(procedure on then, at Step 2, it was agreed that Article 2.02 was not relevant to the
substituted allegations were agreed not to be part of the grievance. Then the Union raised
allegations that there had been breaches of Article 2.03 A (preference to be given to the
designation of full-time positions as regular rather than sessional positions) and 27.09 A (ii)
discussion related to available work during the fall 1996 semester. It is unclear whether the
It appears to us unlikely that that was the understanding of the parties when
than the possibility of a sessional position for the The Union is not precluded from,
quickly as possible and it is understood that if an employee has a complaint, the
the circumstances giving rise to the complaint have occurred or have come or ought
in attendance. The immediate supervisor’s response to the complaint shall be given
settlement of a complaint, it shall be taken up as a grievance . . . in
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
supervisor and Dean, the grievor shall present the grievance in writing at Step T
WO
Local the President’s decision in writing within days following the meeting. In
In the event that any difference he interpretation, application,
settled under the foregoing Grievance Procedure, the matter shall then, by notice in
Union Local President of all personnel covered by the Agreement hired or terminated
since the last notification, together with the location and Division or
to this collective agreement boards of arbitration adjudicating disputes under it have
A by one
.
exercise . of some right or advantage (Brown and
Edition most of decisions cited to us do not speak of the knowledge and
intention of the waiving party in so many words, the concept seems implicit in many of the
of Toronto and
Local 79 5 L.A.C. (2d) 311 (Carter) as quoted in (supra, H.D.
Brown) at 12.
insisted on timeliness at Step One.
The concept that waiver can be found in a technical
amendment to the collective agreement through an exchange of correspondence between the
parties no longer seems to be generally accepted, and in this respect we accept the reasoning
allowing the College President to . . . have such persons or counsel attend as the College
President deems necessary” amounts to an understanding between the parties that important
potential issue of timeliness raised in the grievance and decided nonetheless to deal with the
time. We agree that that is the character of the grievance presented by the Union. As we
exists to make up a full-time position (subject to the expressed in both of those
Again as we understand the Union’s position, such a
situation could have arisen at any time since the layoff and, whenever it did arise, it
the concept that the alleged of the College to recall the grievor gave rise to a series of
in accordance with Article 27.12 would give the Union knowledge to determine
the grievor might have given the Union the knowledge it needed to make out a case as a
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