HomeMy WebLinkAboutVan Slack 04-03-30 IN THE MATTER OF AN ARBITRATION
BETWEEN'
"SAULT'COLLEGEOF'APPLIED'~TS AND TECHNOLOGY. -':.' '.'-' - ,. ': .. : ':'
(THE COLLEGE)
AND'
ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND ITS LOCAL 613
UNION)
AND IN THE MATTER OF THE GKIEVANCES OF JASON VAN SLACK
BOARD OF AKBITRATION:
HOWARD D. BROWN, CHALK
MA.KTHA B. YOUNG, COLLEGE NOMINEE .... . . - ....
EDWARD E. SEYMOUR, UNION NOMINEE -
APPEARANCES FOR THE COLLEGE:
AMANDA J. HUNTER, COUNSEL, AND OTHERS
APPEARANCES FOR THE UNION: ·
CAROLINE V. (NINI) JONES, AND OTHERS
A HEARING IN THIS MATTER WAS HELD AT SAULT STE. MARIE ON
DECEMBER 16, 2003.
AWARD-
The Grievor is a Professor in the Natural Resource Department teaching in the
... '::--" :.... Outdo0r'Park'and Recreation Program when he was in receipt ora notice oflayoffdated
April 10, 2003 Which in part is:
"We regret that due to the financial position of the College,
the position you occupy as a Professor in the Natural
Resources Program is being eliminated from complement.
In accordance with Article 27.06(viii) of the collective
agreement for Academic Employees, please .consider this
your notice of layoff. You are required to work until
May 9, 2003. Your vacation is scheduled for Monday,
May 12, 2003 to Friday, July 11, 2003 and, unless extended
through your participation in retraining activities, your
layoffwill become effective at the close of business on
Friday, July 11, 2003.'
Article 27.06 (viii)(c) of the collective agreement carries a -
provision permitting retraining, of laid off employees.
Should you decide to engage in retraining activities, your
layoff date .will be extended to the close of business on
Friday, October 10, 2003. 'You shall maintain your current
salary and benefits for the duration of the notice, scheduled
vacation, and retraining periods. 'In order to access the
retraining provision, it is necessary to submit an application
to the College Employment Stability Committee.
Application forms are available in Human Resources
Services. You will be paid for any carry-over of vacation
and time off in lieu of overtime if any, which has
· ' · accumUlated as of your layoff date..."
The Board was advised that the layoffwas caused by the declaration of the
College of an Extraordinary Financial Exigency under Article 29 of the collective
agreement and that the application of those procedures applicable in that provision is not
in dispute. The College decided as a result to suspend the Aboriginal Resource Technician
Program and made other adjustments to reduce contact hours which left surplus staff'
including the. Grievor .... ..
A grievance dated April 30, 2003 was filed under the provisions of the collective
agreement in which the Grievor claims wrongful dismissal, violation of Articles 6.01, 6.02
with a request for reinstatement. The response 0fthe College at Step 1 of the grievance
procedure is in part:
"I find that there are no grounds for your grievance because
you have not been dismissed from Sault College. You have
in fact been laid off.in accordance with Articles 27.05 to
27.10 (inclusive) of the collective agreement and retain all
of the rights ora laid off employee. Your grievance is ·
therefore denied.'' '
On October 8, 2003, a second grievance was filed in which the Grievor alleges a
violation of Article 27 as to, contracting out, overtime and part-time, with a request for
reinstatement. The response of the College on October 28t~ is in part:
"'You have alleged that there has been a violation °fArticle -~: '"
27 of the cOllective agreement for Academic Employees -
related to part-time teaching, contracting out and overtime.
Firstly, from time to time work becomes available on a part-
time basis, i.e. six hours per week or less and in keeping
with the terms of Article 1 of the collective agreement, it is
not included in the Academic Bargaining Unit. In this
particular case, the part-time employee hired was also a
Support Staff employee. The employee was contracted
separately and this teaching was not carded out as a part of
his duties as a Technologist.
Secondly, you have alleged contracting out of the work
.' ':'.~ .:"-.' .'-::'.'.".".. '"'i. associated withField. Carnp.. The Academicinstructionat.: .... . :: :...:.. ,.:.~ .,..: ..
. . · . .: ..~ :.. field, camp ihis 'fall: was assigned to Professor Harvey-... ' '.: .: ' .... " ' ' '.'
..... " "Robins."AlthOughthe'i°c~ition Was changed'tO'Seari3hmont,'' '.. ": · - "- : :- '.
the method of providing work in support of field camp was
no different than in the past year except for location.
Although some of the professors in Natural Resources may
have an overtime projection for this semester, it is with the
provisions of the collective agreement.
Based on the above, there is not sufficient work available to
recall you to a full-time position. I find no breach of the
collective agreement for academic employees and your
grievance is therefore denied."
The parties agree that the board should deal with both grievances together as the
issues are interrelatedl At the heating, the Board was advised of the College's preliminary
objection as to the arbitrability of these grievances which on agreement, was the issue
dealt with at the hearing. The Board received the submissions of Counsel on this matter
and reserved its decision without consideration of the merits of the grievances.
The submission for the College is that the Grievor's employment was not
terminated by.the College but rather he was laid offwith retention of recall rights. The
C_n'ievor failed to identify any full-time positions that he could displace and therefore did
not properly comply with the mandatory process in layoffs of employees in the collective
agreement and did not set out a prima facie case for the remedy he has requested as he did
not demonstrate he was dismissed from employment. The collective agreement allows the
College to layoff employees and provides the mechanism in the process under Article 29
by which Academic Programs were curtailed pursuant to Article 29.03(v)(b). When that
.....- ...- ..processis completed, the terms of Article 27.06(a)..apply....There is no:. entitlement for an. :.......... .... .
" ' 'emPl°Y%'t° put i°gether fun,time assi~ents fromw6rkassignod't0'other faculty. '~ i ' ' .: .... · . ": ..:
members in order to establish that there was full-time work available. There are
mandatory time limits to assert a placement in the process under Article 27 with which the
Grievor did not comply nor follow the requirements of Article 27(viii)(d). The grievance
is not arbitrable regardless of when the issue was raised. There was no waiver by the
College of these terms of the collective agreement.
The second grievance is beyond the time limit to identify a position that the
Griev0r sought to'displace for which he had 20 daYs after.receipt of the. notice of layoff in
April. As a laid off employee, he had placement options under Article 27 which existed at
the time of receipt of his notice of layoff and his failure to comply with those terms
blocked his challenge to his layoff.. In the fall term, students in this course go on field trips
which the Professor attends to conduct a program for a week. The Grievor claims this
work still exists as does his teaching at the College which has been improperly given to
part-time employees and persons in the Support StaffBargaining Unit as well as to a -'
Faculty member working overtime on his assignments. As well, part of the field trip was
contracted out. The Grievor did not object to the SWlF's of other faculty members. 'The
Grievor was entitled to and did obtain the 90-day training period after his layoff.
Reference in its submission was made to the following awards: Re Fanshawe College and
O.P.S.E.U. (Simmonds, August 12, 1997); Re Seneca College and O.P.S.E.U.
(I-I.D. Brown, February 6, 1998); Re Canador College and O.P.S.E.U. 0VlcDowell,
December 12, 1996); Re Fanshawe College and O.P.S.E.U.(Kaplan, December 13, 1999);
. . . ': .Re"Fanshawe College and O.P:S:E:I,I (Burkett, June25;.1998); Re.Cambrian College and. -... ,.... : .
O.P.S:E.U.'(H.D. Brown, September 11; 2002); Re'MOhawk'College'and O'.P'~S:E.U.' '"" '"' '-":' ·
(Thome, March 4, 2003).
It is the submission of the Union that whether the Board has the power to consider
the grievances is argument following the presentation of facts which are in dispute
between the parties. Therefore, the Board should hear all of the evidence in the whole
case. The Union alleges that the College violated obligations under the collective
agreement with its interpretation of those terms for the performance of certain activities
such as cobbling a full-time job together'which the Grievor could perform requires
significant evidence. The Grievor alleges that because the layoffwas improper, it was a
wrongful severance of his employment.. The Uniofi did not accept that there was not work
available in April. The issue is the improper exercise of the power to layoffby the College
contrary to the rights of management in violation of the collective agreement. The
grievance is nOt directed to the application of Article 27.08 but to the Grievor's
terminatiOn and the parties knew when these grievances.were filed what the real .issue was
and shOuld be dealt with as a wrongful termination issue as alleged by the Griev°rl
As to the second grievance, the facts crystallized after the Grievor's initial layoff'
because the Grievor's job in its submission, continued to exist and the Union would
provide evidence on which that submission is based. That evidence would include the
7
courses which had been taught by the Grievor and that they were continued to be taught in
the Fall by part-time employees. As well, the Technician Program had not been cancelled
.... '. '"but continued'and the 'Camp Program in.which the.Cn-ievor had been involved had been .-... -. · ·..... .. ......
layoffthe Grievor on April 10 , the Coll~ge 'adied ' '"- '-
unreasonably and in violation ofAxticle 6 because there was a workload for the Grievor's
position, which continued to exist.
It was also submitted that Article 27.08 was waived by the College in any event
that Article has no application to the grievances because on April 30ta the Union alleged
that the layoff.was improper and did not refer to the Grievor's right to bump some other
employee because it was not the Union's position that he could do so as his job remained
and that he was dismissed and should not have been laid off. It is not whether the
provisions under Article 27.06(a) apply to allow the Gdevor to displace persons in certain
positions which is not the claim of the C_n'ievor. The second grievance was not untimely
beCaUse the facts crystallized on that grievance in September when the lists were provided
by the College giving the information which underlies the grievance. Reference was made
to: Re Fanshawe College and O.P.S.E.U. (Mitchnick, September 19, 1997); Re George
BroTM College and .O.P.S.E.U. (I.G. Thorne, November 5, 1999); Re St. 'Clair College '
and O.P.S.E.U. 65 L.A.C.(4t~)219 (McLaren).
The agreed facts are clear that the College declared an Extraordinary Financial
Exigency (EFE) pursuant to.the recognition of its right to do so in Article 29 of the
collective agreement. In those circumstances, the parties have agreed that certain
procedures would thereafter follow insofar as to the plan of the College to:
' e'the'numbei/ ~"fUii im regulai: empl 'y es'whO'' " .......
'.- "..'" '~Reduc o -t e' o e ..... ' .......
have completed the probationary period by lay off'..."
Those procedures outlined in that Article were completed and no objection was
raised to any aspect of the application of the terms of that Article which we note includes
in Article 29.03(v) whether reductions could be accommodated by:
"curtailing certain academic programs"
or
"adjusting Faculty instructional assignments"
The second part of this section has relevance to the Grievor's claim in his second
~rievance.
However.that maybe, what oCCurred under the'application of Article 29 remained
in effect without change to the decision of the College to layoff employees. It is that.
consequence which follows the declaration of an EFE, i.e. full-time employees are laid off
and the Union is advised of "the courses, programs and services to be reduced or
eliminated".
It does not follow from these terms that the affected employees through the
'exercise of an EFE haxte'had their employment terminatedor that they halve been· : ..., ............ : .... . ....
dis~harge'd'pursuant t0'the'figh(6fthe'College in ~iele 610 l(ii)i"There isin this Case do "' '"'
suggestion of disciplinary action leading to the Grievor's dismissal without just cause. If
that was the real cause of the Grievor's complaint, then he had 20 days of the date of
"receipt of the written notification of the dismissal" to present a grievance pursuant to
Article 32.07. The Grievor was not subject to or in receipt of a notification of dismissal
but rather notice of his layoff under Article 27.06(viii) "due to the financial position of the
College" which is based on the EFE declaration pursuant to Article 29.
The scheme of the collective agreement provides for.a complaint ~proeedure where ........
an employee has been given a notice of layoff under Article 27.06(viii) in the terms of
Article 27.08(a) which have been consistentlY held by Arbitrators to be both written, in - .............
substantive and mandatory language and therefore requires strict observance by the -
affected employee. The Union submits that the Grievor is not claiming an improper layoff
but that his termination of empl0yment was wrongful in that he alleged his position
· remained and the courses which he.taught had been improperly parcelled out to Others in
the Fall term. Whatever factually occurred to the Grievor's teaching position, the Board
must infer from the terms of Article 29 which are not in dispute was included within the
examination of the College Employment Stability Committee pursuant to Article 29.
Under the terms of that Article which allows the College to layoff employees as a result of
an EFE declaration, the affected employee cannot be found when in receipt of a notice of
layoff under Article 27.06 (vii) to have any claim as a wrongly dismissed employee. That
form of relief is in these circumstances clearly not available to the Grievor. Once the
· .-'.. :-". '.: · '~ declaration of EFE~has been made, layoffs folloTM with notices under Article 27.06(vii)..--.
ASa. i:eSUlt,'the relief Which must' be Claimed if at all is that which arises under'Article' '" '~"
27.08 (a) of an improper layoff. In so doing, the affected employee must state the
Employees and Positions that he claims entitlement to displace.
We find it is not open to the Union under the specific and clear detailed terms of
the collective agreement applicable to an EFE to disregard this contractual procedure in
order to have the case heard as to the facts on which it would base the allegation in the
grievance of wrongful dismissal. Even should the Board allow the reception of such
evidence, its conclusion would be' bound by the strict terms' of the collective agreement
which we have noted above and therefore the proposed evidence would have no relevance
and would not lead to any other conclusion than the Board is constrained to find in the
apPlication of the above-referenced provisions of the collective agreement which cannot
be bypassed through the Grievor's claim in his first grievance.
We further find that the secOnd grievance alleging a violation of Article 27 is'
clearly beYond'the time limits for the presentation of his complaint pursuant t° ArtiCle
27.08(a) and 32.02. Whatever has been stated in arbitration decisions prior to the
Zurowski grievance determined by the Simmons Board, that decision has been upheld by a
judicial review and in our view is determinative on the basis of the findings in that award
that failing to name vacant positions is a fatal flaw to the grievance. Furthermore, that
11
Board found that the time limit referred to in Article 32.02 applies from the date of the
notice oflayoffreceived by the employee from which date the Gfievor had 20 days to
...... lodge a complaint.of an improper layoff,. The Simmon~s Board's award deals with the
same c011%ti'Ve agreement betV, ieen thesame'parties and there isn° reas0nable basis to
consider that it was wrongly decided so as to not follow that result by this Board.
We also note that while obiter, the Board stated its opinion as to the combination
of lesser than full-time assignments to a regular full-time position or as set out in the
Lambton College award (Swan) referred to at p. 19 of the Simmon's award:
"In this instance, the intention of the grievance is that the
Grievor would take certain teaching assignments away fi-om
each of the three employees who ·teach less than full-time, in
the process pUtting together a full-time job made up of
pieces of teaching previously done by others..."
The Board found that while the situatiOn fell under Article 27.08 and in (b), the Grievor is
able only to arbitrate on a specific provisions of Article 27.06(a) and not under Article
27.06(iv) but under 27.06(1) does not allow, the Grievor to search and cobble a number of
.Partial or part-time positions to make a full-time position. In the'Kaplan award (Supra),
that issue is revisited and is found clearly that:
"It now seems well established that the vacant position must
be identified when the grievance is referred to arbitration
and that the later attempted cobbling of courses from other
employees to make a full-time complement for one
employee is inconsistent with the scheme set out in the
collective agreement. Put another way, there is nothing in
the collective agreement that requkes the Employer to take
away courses belonging to other employees, partial load,
part-time and particularly full-time or senior employees and
..' '..~ :. : .' ..'... :'-. :.. ': -:..!hen. give them.to..theGriex(grin order to.pro¥ide the .....:.. :....:....; .,: ...(.....:: ..: ;....: ,... .....
- · '..,. i'Gfievor with fulMime.employment... To'be sure, there~'may ;' · ~
........ be, as argued'by the union, a Preference'in'the.collective - .-.: ..... "i:.. -:": ..... ' : . .
agreement for full-time employment. But there is also a
detailed scheme for asserting claims to vacant positions
whether full-time or otherwise and a position means an
existing job, whether full-time or otherwise not a collection
of courses that could when combined create full-time
employment..."
In that case, there was also a declaration of en EFE and it was there found that the
procedures in that regard were followed and that no grievance was filed by the Union and
at p. 8, the Board stated:
"Again, even accepting the Union's submission that there is
a preference in the collective agreement for full-time jobs,-
the collective agreement also evidences the shared '
recognition that financial exigendes can occur and that job
losses may result. A highly detailed processes provided to
ameliorate as much as possible the impact of layoffs by
providing employees with a succession of opportunities on
displacement..." ..
In the Seneca College award (supra), it was found that the terms of Article 27.08 are.
substantial, and mandatory:
'. ".i.' .'.' .".. '"ari'd the. failure t° meet those terms as a matter Of.substance :'.':.
..... is"fatal to 'the '~rievance.' That is the Poski0n which this '"
Board follows and adopts. Therefore, the doctrine of
waiver as described and applied in the George Brown
award does not apply to waive substantial and mandatory
requirements of the collective agreement".
We find the same result must apply in the circumstances of these grievances and therefore,
it cannot be found that the College did not intend to exercise its legal fights under the
collective agreement in responding to these grievances. This is not a matter of allowing
the Grievor to proceed on the alleged real issue of his grievance regardless °fthe wording .....
as the only issue which could arise following the receipt of the notice of layoff under
Article 27.06(vii) is as stated above and cannot be converted or considered by the Board
under the terms of this collective agreement in any other manner.
14
Having regard to the submissions of Counsel and for all of the foregoing reasons,
-the Board finds that the preliminary objection of the College to both grievances.is allowed ,. -.
"'"' "'-ih~'""" rana ereto e mtD n';~a:.'ot" the gn ceaat a ' 'evan-~"' 'e~,qpm~" """~0, 2003 and th~ gnev ce""an::" d~ited'" ':'" "' : ""
October 8, 2003 are not arbitrable. It is therefore this Board's award that these
proceedings are terminated.
DATED AT OAKVILLE THIS 30TM DAY OF MARCH, 2004.
HOW~HAIR
MARTHA B. YOUNG, (IOLLEGE NOMINEE'
EDWAI~ E.. SEYMOUR, UNION NOMINEE