HomeMy WebLinkAboutSammon 15-09-21
IN THE MATTER OF AN ARBITRATION
BETWEEN:
St. Lawrence College
(“the College”)
and
Ontario Public Service Employees Union
(“the Union”)
Grievance of Melissa Sammon
ARBITRATOR: Mary Lou Tims
APPEARANCES:
FOR THE COLLEGE: Dan Michaluk, Counsel
FOR THE UNION: Val Patrick, Representative (April 7, 2015)
Natalie De Haney-Stewart, Grievance Officer
(written submissions)
Hearing held on April 7, 2015 in Kingston, Ontario.
Written submissions concluded August 28, 2015.
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INTERIM AWARD
1. I have before me the grievance of Melissa Sammon, dated March 18, 2014. There were
initially no objections regarding my jurisdiction or the arbitrability of the grievance.
2. During Opening Statements, however, the parties identified two issues that they agreed
should be determined on a preliminary basis. They chose to argue such matters in writing, and
written submissions were completed on August 28, 2015. This Interim Award addresses such
preliminary matters only.
3. Ms. Sammon‟s grievance states as follows:
Statement of Grievance
Job Posting 17.1.1
Appendix D #8
Appendix D #10
Settlement Desired
Grievor be given position. Grievor be made whole. Any other remedy deemed
appropriate by an arbitrator.
4. The parties referred to the following provisions of their collective agreement:
Article 17 – Job Postings/Promotions
. . .
17.1.1 Consideration – Bargaining Unit Employees
When a vacancy occurs and employees within the bargaining unit at the College apply,
the College shall determine the successful candidate based on the qualifications,
experience and seniority of the applicants in relation to the requirements of the vacant
position. Where the qualifications and experience are relatively equal, seniority shall
govern, provided the applicant has the necessary qualifications and experience to fulfil
the requirements of the position.
The College need not consider probationary employees.
. . .
Article 18 – Complaints/Grievances
. . .
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18.5.1.1 – Step 1
An employee shall present a signed grievance in writing to the Department Head of the
Department in which he/she is employed stating the nature of the grievance, the remedy
sought and shall be sufficiently specific to identify the alleged violation(s) of the
Collective Agreement.
. . .
Appendix D – Temporary Employees
1. The terms of this Appendix apply to persons employed on a casual or temporary basis
to replace bargaining unit employees absent due to vacation, sick leave or leaves of
absence.
2. The rate to be paid to such an employee shall be the appropriate wage rate applicable
to the position of the replaced employee, subject to progression steps applicable to the
replacing employee, where appropriate.
3. The replacing employee shall be subject to the deduction and remittance of Union
dues, as provided in Article 5.4 of the Agreement.
4. The Union shall be notified at the commencement of employment, and upon the
expiry of the term of employment.
5. In addition to the hourly rate of pay, the employee shall receive an additional eight per
cent (8%) in lieu of all fringe benefits, including vacation.
6. The employee shall be entitled to the provisions of Articles 6.2, 7.5 and 10 of the
Agreement.
7. The employee may be released by the College before the termination date of any term
of employment, for replacement need changes or operational requirements.
8. Employees covered by this Appendix are entitled to utilize the grievance procedure to
enforce the rights contained in this Appendix.
9. If an employee is appointed to a regular bargaining unit position after September 23,
1997, he/she shall be credited with full seniority, after completion of the probationary
period, based on full credit for Appendix D service calculated at a day‟s seniority for
each day worked (261 days of work equals one (1) year). When an Appendix D
employee is appointed to a regular bargaining unit position and has previous service as a
part-time Support Staff employee, seniority shall also be credited in accordance with
Article 14.3.
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10. For the purposes of job competitions, in addition to any other factor that the College
considers relevant, consideration will be given to service with the College.
11. No other provision of the Collective Agreement shall apply to Appendix D employees
unless otherwise stated in this Appendix.
5. While no viva voce evidence has yet been called in this matter, Counsel stipulated a number
of agreed upon facts and filed on consent certain documentary evidence. Such evidence can be
briefly summarized. At all times relevant to the grievance, the grievor was an Appendix D,
temporary employee. She submitted an application in response to a March 5, 2014 posting for
the position of School Receptionist/Clerk for the Schools of Applied Science & Computing, and
Skilled Trades & Tourism (“the position”). On March 18, 2014, the grievor was advised by Ms.
Belinda Doyle, Manager of Academic Operations, Faculty of Applied Science, that she would
not be granted an interview. The grievance before me was filed the same day. Late in the day on
March 19, 2014, a voicemail was left for the grievor advising that she would be interviewed.
Such voicemail was received late that evening. The grievor was interviewed for the position in
issue on March 20, 2014. Within approximately one week, the grievor was informed that she
would not be awarded the position.
6. The position was awarded to Ms. Ashley Stebbins who the parties agree was also an
Appendix D employee at the relevant time. The parties agree as well that the grievor‟s Appendix
D service with the College was at that time greater than that of Ms. Stebbins. Counsel advised
that Ms. Stebbins was given notice of these proceedings. She did not attend the hearing.
Application of Article 17
7. The parties seek a ruling on the following question:
Did article 17 of the collective agreement apply when the College considered the
grievor‟s application for the position in issue or was Appendix D the only applicable
contractual language?
8. The College takes the position that the only applicable contractual language here is that
contained in Appendix D. In its submission, whether the College breached article 17.1.1 is not
arbitrable because the grievor had at the relevant time the status of an Appendix D employee.
9. The College relies on paragraph 11 of Appendix D. In Counsel‟s submission, that language is
clear and unambiguous in providing that the grievor, as an Appendix D employee, has rights
under Appendix D and no other provision of the collective agreement unless otherwise stated in
the Appendix. The College argues that no exception to the paragraph 11 rule applies here in that
there is no statement in the Appendix that grants Appendix D employees rights under article
17.1.1. While paragraph 6 of the Appendix clearly gives Appendix D employees rights under
articles 6.2, 7.5 and 10, notably, it makes no reference to article 17.1.1.
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10. The College submits that a contextual reading of the collective agreement further supports its
position that Appendix D sets out the only right the grievor enjoys, relevant for present purposes.
Counsel urges me to read the collective agreement as a whole, suggesting that paragraph 10,
Appendix D is in effect meaningless if the greater protection granted by article 17.1.1 applies to
Appendix D employees.
11. The College notes as well that article 17.1.1 refers to “seniority,” something that it suggests
neither the grievor nor any Appendix D employee enjoys. Counsel refers to paragraph 9 of the
Appendix in this regard which provides that an Appendix D employee appointed to a regular
bargaining unit position is credited with seniority “after completion of the probationary period.”
In the College‟s submission, paragraph 9 is clear that an Appendix D employee prior to this point
in time only has “service.” This is consistent, the College asserts, with the language of
paragraph 10 which refers to “service” and not “seniority” and with what Counsel suggests is the
“recognized distinction” between service and seniority under the collective agreement. The
College relies in this regard on the decision in Re OPSEU and College Compensation and
Appointment Council, unreported, February 22, 2008, (MacDowell).
12. In opening statements in the hearing, the Union took the position that Appendix D “qualifies”
article 17.1.1. In written submissions, it argues that “both Appendix D and Article 17.1.1 apply
in the circumstances,” and that I have jurisdiction to determine whether the College breached
article 17.1.1 as alleged. It argues that “inherent in Appendix D, paragraph 10, is the Employer‟s
mandate to consider the job competition factors as set out in article 17.1.1.” The Union disputes
the College‟s claim that the contractual interpretation which it urges me to accept would render
paragraph 10 of Appendix D meaningless. Rather, it argues, “the College has already made clear
the factors it „considers relevant,‟” through article 17.1.1. In its submission, Appendix D,
paragraph 10 “concretizes the College‟s considerations” as those it “has already covenanted to
consider” through article 17.1.1 along with a temporary employee‟s service.
13. The Union also asks that I apply a “holistic approach” in construing the relevant contractual
language, so as to give effect “to the entire spirit” of the agreement and “not solely to part that,
when read in isolation, supports the absurd position of one party.” The Union‟s representative
commends to me the decision in Re U.A.W., Local 439 and Massey-Harris Co., (1947), 1 L.A.C.
68 (Roach). The Union suggests that the contract holistically construed is clear that “article
17.1.1 will be considered in addition to an Appendix D employee‟s service.” In the Union‟s
submission, “while Appendix D, paragraph 11 does exclude the application of other provisions
to Appendix D employees,” the job competition process “must be reconciled.” The Union takes
the position that “not recognizing the application of article 17.1.1 to all applicants in the job
competition would amount to an inconsistency in the process” that would be absurd.
14. The Union urges me as well to construe the collective agreement in a purposive manner. In
its submission, “it is axiomatic that when a literal reading of a part of the Collective Agreement
would create a conclusion that is clearly contrary to the parties‟ purpose and intent of the whole,
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then a purposive approach is appropriate.” The question that I must ask, according to the
Union‟s representative, is “did the parties intend to reinforce the precariousness of temporary
workers” or did they intend “to bolster their competitiveness in the job competition process by
outlining that service would also be considered?” The Union‟s representative relies on the
decision of the Ontario Court of Appeal in Re Hydro Ottawa Ltd. and IBEW, Local 636 (2007),
161 L.A.C. (4th) 312 in support of the proposition that a collective agreement must be construed
“in the context of the labour relations environment in which it was negotiated.” The Union
argues that to accept the College‟s position here would be “antithetical to the labour relations
environment cultivated by trade unionism,” and it urges me to prefer the contractual
interpretation which it suggests is appropriate.
15. In Reply, the College submits that the Union‟s position has evolved over the course of these
proceedings, suggesting that it no longer argues that article 17 applies directly to the grievor.
Given what Counsel suggests is the Union‟s “apparent acceptance of the College‟s position,” he
asks me to answer “no” to the question put to me by the parties for determination.
16. Counsel addresses as well that which he characterizes as the Union‟s “new” argument. The
College disputes that it is bound to consider the factors set out in article 17.1.1 in exercising its
discretion under paragraph 10 of Appendix D. It contests the Union‟s assertion that the words
“any other factor that the College considers relevant” as found in Appendix D, paragraph 10,
bind it to consider the factors set out in article 17.1.1. The College denies that the parties‟
agreement as reflected in article 17.1.1 can be regarded as synonymous with that which the
College “considers relevant” pursuant to paragraph 10 of Appendix D. Further, the College
notes that article 17.1.1 speaks of three factors. One of these is seniority which the College
argues does not apply to Appendix D employees. The College suggests as well that the parties‟
agreement in paragraph 10 of Appendix D that the College will consider “any” relevant factor
cannot be construed as agreement that the three factors specifically referenced in article 17.1.1
apply.
17. The parties ask me to determine whether article 17 of the collective agreement applied when
the grievor sought the Receptionist/Clerk position posted on March 5, 2014. The grievor was an
Appendix D employee at the relevant time. Paragraph 6 of the Appendix provides that an
Appendix D employee is “entitled to” the provisions of articles 6.2, 7.5, and 10 of the collective
agreement, none of which is in issue here. Paragraph 11 is clear in unambiguously stating that
“no other provisions of the collective agreement shall apply to Appendix D employees unless
otherwise stated in this Appendix.” The Union acknowledges the plain meaning of that
language. There is no provision in the Appendix that expressly and directly states that article 17
of the collective agreement applies to Appendix D employees, and the Union does not suggest
otherwise.
18. The Union submits, however, that article 17.1.1 applies here as it is “inherent” in Appendix
D, paragraph 10, that the factors set out in article 17.1.1, along with service, are to be considered
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by the College in the exercise of its paragraph 10 discretion. The Union‟s position merits careful
consideration.
19. The parties agree that a holistic reading of the contractual language is appropriate. In Re
Massey-Harris Company Ltd., supra, relied upon by the Union, the board of arbitration speaks to
the need to read the agreement as a “harmonious whole” with “effect [to] be given to every part
of it.” (para 13) I accept that the language in issue before me should be construed accordingly.
20. In so considering the relevant language, I agree with the College that the parties‟ agreement
in article 17.1.1 that qualifications, experience and seniority govern determinations thereunder
cannot be read as synonymous with their agreement in paragraph 10 of Appendix D that the
College will consider service “in addition to any other factor that the College considers
relevant.” Notably as well, as emphasized by the College, article 17.1.1 references three specific
factors that govern the College‟s decisions under that provision. Paragraph 10 of Appendix D
refers to “any” other factor considered relevant by the College. I agree with the College that the
plain meaning of such language does not support the interpretation suggested by the Union.
21. Further, the College asserts that the language of paragraph 9 of Appendix D is clear that
“seniority,” one of the three factors enumerated in article 17.1.1, is not “enjoyed” by Appendix D
employees, and that seniority and service are distinct concepts under this collective agreement.
The Union does not address those assertions here, and does not comment on the language of
paragraph 9, but argues that paragraph 10 “concretizes” that qualifications, experience and
seniority, the factors referenced in article 17.1.1, are to be the College‟s considerations, along
with an Appendix D employee‟s service. A holistic reading of the pertinent language, and
particularly that of paragraphs 6, and 9 – 11 of Appendix D and article 17.1.1 leads me to prefer
the College‟s position here.
22. The Union asks me to “purposively” construe the relevant language here, suggestin g that in
doing so I must favour the contractual interpretation that would “bolster” the “competitiveness”
of Appendix D employees in the job competition process. It further suggests that a
determination that article 17.1.1 has no application here produces an absurdity. I do not agree
that this is so, particularly given the parties‟ agreement in paragraph 11 of Appendix D. In my
view, the plain meaning of the contractual language before me, considered holistically, favours
the interpretation urged upon me by the College, and it is not open to me to ignore or distort that
clear language to which the parties have agreed. Paragraph 11 of Appendix D provides that “no
other provision of the Collective Agreement shall apply to Appendix D employees unless
otherwise stated in this Appendix.” The language of the Appendix does not expressly and
directly state that article 17.1.1 applies to Appendix D employees, and despite the Union‟s able
argument, I do not accept that it is nonetheless “inherent” in Appendix D, paragraph 10 that
article 17.1.1 applies in the circumstances.
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23. The parties seek a ruling on the following question: Did article 17 apply when the College
considered the grievor‟s application for the position in issue or was Appendix D the only
applicable contractual language? The focus of the parties‟ argument was on article 17.1.1. I find
that article 17.1.1 had no application and that the language of Appendix D governed the
College‟s decision.
Scope of the Grievance
24. The parties also pose the following question for determination on a preliminary basis:
Does the grievance dated March 18, 2014 contest only the College‟s initial failure to
interview the grievor for the position in issue or does it more broadly contest the
College‟s failure to award the grievor such position as communicated to her in late March
2014 after interviewing her?
25. The Union seeks to challenge the College‟s decision denying the grievor the disputed
position, and not merely the initial denial of an interview. The College argues that the grievance
before me pertains only to its initial decision not to interview the grievor when she applied for
the School Receptionist/Clerk position. It suggests that its subsequent decision to grant the
grievor an interview was, in all of the circumstances, a “complete and adequate remedy” to the
grievance and that nothing more than declaratory relief can thus issue even if the grievance is
upheld. In the College‟s view, the Union seeks to expand the scope of the grievance in
challenging what it suggests is a distinct post-grievance decision made by a selection panel. The
College argues that it is not open to the Union to do so.
26. The College accepts that grievances are to be liberally construed so that the “real complaint”
is dealt with at arbitration. It argues, however, that arbitrators should not, under the guise of a
liberal reading of the grievance, permit a party to raise issues at arbitration not encompassed in
the grievance. The policy underlying this, Counsel suggests, is to support the meaningful
discussion of the issues in dispute during the grievance procedure. He asserts that the parties
have “adopted this policy” through the language of article 18.5.1.1 of their collective agreement.
27. The College emphasizes timing here, noting that the grievance before me was filed after Ms.
Doyle advised the grievor that she would not be interviewed for the posted School
Receptionist/Clerk position, but before the selection panel interviewed her and decided not to
award her the position. The College suggests that, in these circumstances, the grievance could
have challenged nothing more than the denial of an interview as that was the only decision made
by that point in time.
28. In asking me to find that the Union seeks to improperly expand the scope of the grievance,
the College relies on what Arbitrator Burkett characterized as the “acid test” in Re Fanshawe
College and OPSEU, Local 110 (2002), 113 L.A.C. (4th) 328. The question to be posed
according to the arbitrator is “whether an issue not encompassed within the grievance that
requires the calling of evidence and the making of legal submissions has been raised.” (at p. 334)
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Counsel comments on the evidence that the College would likely lead with respect to its initial
decision not to interview the grievor and Ms. Doyle‟s reasons at the time for determining that the
grievor‟s application would not “make it through.” He states that Ms. Doyle was not a member
of the selection panel that later interviewed the grievor and notes that the evidence relevant to the
more broadly construed grievance would differ from that pertinent to the narrower issue which
he suggests is before me. In the College‟s submission, there were two decisions made here and
they were distinct both in time and in substance. The grievance, in its view, challenges the first
decision but did not and could not have addressed what the College characterizes as a later and
distinct decision. It submits that the so-called “acid test” is satisfied here, and that I must find
that the Union improperly seeks to expand the scope of the grievance.
29. The limited scope of the grievance, in the College‟s submission, is reflected as well in the
parties‟ discussions during the grievance procedure. Counsel asserts that Step 1 and 2 grievance
meetings took place after the selection panel made its decision not to award the grievor the
position in issue. Although there was some dispute between the parties on the initial hearing day
in this matter as to whether grievance procedure responses which the Union sought to enter in
evidence were properly admitted, the College filed its Step 1 and 2 responses in written
submissions, with no objection by the Union. In Counsel‟s submission, the “real concern” and
the focus of the parties‟ discussions as addressed in such responses was the Union‟s assertion
that the grievor ought to have been treated as an “internal applicant” subject to article 17.1.1.
Counsel points out as well that the College initially took the position that the grievance was not
arbitrable, and that the parties talked at “cross purposes.” Notably, in the College‟s submission,
the grievance responses reflect no discussion regarding the selection panel‟s decision, its process
or the merits of the grievor‟s presentation to the selection panel. The College suggests that the
parties‟ discussions during the grievance procedure underscore that the grievance did not
encompass the “expanded” issues which the Union now seeks to litigate.
30. The College asks me to conclude that the grievance before me challenges only the initial
decision to deny the grievor an interview. It argues that it is not open to the Union to contest
through the March 18, 2014 grievance what it characterizes as a later and distinct decision by the
selection panel to deny the grievor the position for which she applied. In support of its position
that the Union seeks to improperly expand the scope of the grievance here, the College relies
upon the decisions in Re Fanshawe College, supra, Re Electrohome Ltd. and I.B.E.W., Local
2345 (1984), 16 L.A.C. (3d) 78 (Rayner) and Re Greater Sudbury Hydro Plus Inc. and CUPE,
Loc. 4705 (2003), 121 L.A.C. (4th) 193 (Dissanayake).
31. The Union, in response, submits that even on a plain reading of the grievance, it challenges
the College‟s failure to award the grievor the position for which she applied, and not merely the
initial failure to grant her an interview. It notes that the grievance alleges a breach of article
17.1.1 and Appendix D, paras 8 and 10, and that it seeks in part an order that the grievor be
awarded the position in issue. The Union urges a liberal reading of the grievance in any event,
and suggests that when it is so construed, it clearly encompasses the College‟s decision not to
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award the grievor the posted Receptionist/Clerk position. In the Union‟s submission, it does not
seek to expand the grievance here but rather seeks to advance only that which was grieved.
32. While the Union acknowledges that the College reversed its initial decision not to interview
the grievor, it submits that the grievance challenges the failure to award the grievor the posted
position for which she applied. In the Union‟s submission, it is not for the College in these
circumstances to unilaterally declare that the grievance has been resolved through the granting of
an interview.
33. The Union asserts that it maintained its position set out in the grievance throughout the
grievance procedure. It does not dispute that the application of article 17.1.1 to the grievor
formed an “integral part” of the parties‟ discussions during the grievance procedure and that it
took the position, as it does now, that the College violated article 17.1.1 in not treating the
grievor as an “internal” candidate. In its submission, however, regardless of which issues
“captured the majority of the parties‟ discussions,” its position was not “one dimensional” and it
does not seek to expand the grievance beyond the scope of that initially filed. In any event, the
Union asserts that “all alleged breaches” were discussed between the parties, including its view
that the grievor should have been awarded the disputed position. The Union argues that it met
with Mr. Don Young, then Dean, Faculty of Applied Science, on March 27, 2014 and
unsuccessfully “attempted to have a fulsome and meaningful discussion about its position by
posing a number of questions about the competition process.”
34. In the Union‟s submission, it should be open to it in these proceedings to challenge the
College‟s failure to award the grievor the position in issue, and it denies that it thereby seeks to
argue matters not encompassed in the grievance. It relies upon Re Blouin Drywall Contractors
Ltd. and United Brotherhood of Carpenters & Joiners of America, Local 2486 (1975) 8 O.R.
(2d) 103 (C.A.) [leave to appeal to S.C.C. refused November 17, 1975] and Re Manitoba and
M.G.E.A. (1991), 20 L.A.C. (4th) 269 (J. Chapman).
35. In Reply, the College acknowledges that arbitrators properly consider the violation alleged
and the remedy requested in determining the “real issue” raised by a grievance. It emphasizes,
however, that one cannot read the grievor‟s claim to the position set out in the grievance before
me as a suggestion that she took issue with the decision of the selection committee, as such
decision had not been made as of the time that the grievance was filed. In such circumstances,
the College argues that the requested remedy does not speak to the proper construction of the
grievance.
36. The College denies as well what it characterizes as a “vaguely defined allegation” by the
Union with respect to March 27, 2014 discussions with Mr. Young.
37. While the parties are at odds as to the proper construction of the grievance before me, the
principles to be applied are not in dispute. These are well articulated in the authorities upon
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which they rely. The following statement of the Ontario Court of Appeal in Re Blouin Drywall,
supra, is a helpful starting point. The Court commented there as follows:
No doubt it is the practice that grievances be submitted in writing and that the dispute be
clearly stated, but these cases should not be won or lost on the technicality of form, rather
on the merits and as provided in the contract and so the dispute may be finally and fairly
resolved with simplicity and dispatch.
. . .
Certainly, the board is bound by the grievance before it but the grievance should be
liberally construed so that the real complaint is dealt with and the appropriate remedy
provided to give effect to the agreement provisions. . . . (paras 10 and 11)
38. In Re Electrohome, supra, Arbitrator Rayner outlined what he suggested are the applicable
guidelines:
Thus, one sees that there are two basic guidelines for a board of arbitration in determining
whether the matter raised by one party at the hearing is part of the grievance. First, the
board is bound by the grievance before it but within the confines of that boundary, the
board is to interpret the grievance liberally so as to come to grips with the real dispute
between the parties….
Although the value in maintaining a flexible approach to grievances filed before a board
of arbitration is readily apparent in so far as the parties are not operating under the same
rules of practice that would guide counsel in normal litigation, there is another value that
must be kept in mind. The whole process of grievance arbitration, and grievance
procedure, is designed to permit the parties at the earlier stages to resolve the dispute
between themselves. Hence, collective agreements invariably contain grievance
procedure provisions so that grievances are funnelled to an arbitration board only after
the parties have had a chance to resolve the matter. It is our view that the comments of
Professor Laskin and the decision in the Re Blouin Drywall case attempt to accommodate
both values. If the issue raised at the arbitration hearing is in fact part of the original
grievance, a board of arbitration should not deny itself jurisdiction based on a technical
objection as to the scope of the original grievance. To do so would be to deny the value
of flexibility and would be to compel the parties to draft their grievances with a nicety of
pleadings. On the other hand if the issues raised by one of the parties is not inherent in
the original grievance for the board to permit the party to raise that issue as part of the
original grievance would be to deny the parties the benefit of the grievance procedure in
an attempt to resolve the issue between themselves. In fact it would be to permit one
party to substitute a new grievance for the original grievance. (paras 13 and 14)
39. Arbitrator Burkett‟s decision in Re Fanshawe College, referenced above, sets out the
applicable principles as follows:
In deciding whether the issue that is framed at arbitration is the same issue raised in the
grievance as filed, an arbitrator must compare the grievance as written, including the
remedy sought, to the issue as raised at arbitration, including the remedy sought…. The
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acid test is whether an issue not encompassed within the grievance that requires the
calling of evidence and the making of legal submissions has been raised. Without
restricting the authority of an arbitrator to fashion an appropriate remedy at the
conclusion of a case,…it is the statement of grievance read in conjunction with the
remedy sought that defines the essential nature of the grievance and the issues that have
been raised by the grievance, thereby allowing an arbitrator to decide if a grievance has
been improperly expanded. (pp. 333-334)
40. An arbitrator is, of course, bound by the grievance before him or her. While grievances are
to be liberally construed so that the “real complaint” is heard and resolved at arbitration, this
does not mean that it is open to either party to unilaterally substitute at arbitration what is in
essence a new grievance. Arbitrators are mindful that the grievance process as delineated in a
collective agreement is intended to provide the parties with an opportunity for meaningful and
constructive discussion of the issues raised by the grievance. If an issue raised at arbitration is
encompassed in the grievance when appropriately construed, it should be heard and determined.
If however, either party seeks to litigate at arbitration a matter that was not raised in the
grievance that the arbitrator was appointed to decide, it is not open to the arbitrator to permit
such unilateral expansion of the issues properly determined.
41. The parties differ in how they characterize the “real issue” raised by the grievance here.
Despite the language of article 18.5.1.1., the grievance identifies the alleged contractual violation
only by referencing the provisions which the Union asserts are relevant and by setting out the
requested remedy. The plain language of the grievance alleges a violation of the job posting
language of article 17.1.1. and paragraph 10 of Appendix D pertaining to job competitions. By
way of remedy, it seeks in part that the “grievor be given position.” I accept that the grievance
on its face, and particularly when read liberally, supports the broader construction urged upon me
by the Union.
42. The College, however, emphasizes the timing of relevant events here, and argues that when
the grievance is construed accordingly, its position must prevail. The March 18, 2014 grievance
followed Ms. Doyle‟s initial advice to the grievor that same day that she would not be
interviewed for the Receptionist/Clerk position. The grievance preceded the grievor‟s March 20
interview and the College‟s post-interview communication to her that she would not be awarded
the position. It does not, in my view, follow from this, however, that the March 18 grievance
challenges only the denial of an interview. There can be no mistaking that when Ms. Doyle
advised the grievor on March 18 that she would not be interviewed, the grievor was in effect
denied the position to which she claims she was entitled. Her application had not made the “first
cut” in the selection process. The fact that the grievance followed the denial of an interview,
does not in in these circumstances support the College‟s position that it can and should be
construed as challenging only that. The grievance asserts a breach of the contractual job posting
provisions and seeks an order that the grievor be awarded the position. I accept that it thereby
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challenges the College‟s failure to award the grievor the Receptionist/Clerk position posted
March 5, 2014.
43. The evidence establishes of course that the College reversed its initial decision not to
interview the grievor, and that she was in fact interviewed on March 20, 2014. Within
approximately one week, the grievor was informed that she would not be awarded the position.
The March 18, 2014 grievance before me had already asserted a breach of the contractual job
posting provisions and had already asserted the grievor‟s entitlement to the position through a
remedial request that she be awarded the position. After the grievance was filed, the College
took further steps to consider her application. The outcome, however, remained unchanged for
the grievor with the selection panel‟s decision not to award her the position. The March 18
grievance already asserted entitlement to the position. The fact that the College, through its
selection panel, further considered the grievor‟s application after the filing of the grievance, with
no change in the ultimate outcome, did not, in my view, necessitate the filing of a second
grievance reiterating the grievor‟s claim to the position. That claim was already encompassed in
the grievance before me.
44. In so finding, I acknowledge that the evidence required to address the more broadly
construed grievance will differ from that pertaining to the narrower grievance which the College
argues is before me. While that may be, I am satisfied that the matter which the Union seeks to
grieve, that being the College‟s failure to award the grievor the posted position, is in fact
encompassed in the grievance as filed and is properly before me for determination. On the facts
before me, therefore, the “acid test” described by Arbitrator Burkett and relied upon by the
College is not met.
45. I have considered as well the evidence regarding the parties‟ discussions during the grievance
procedure, at least as gleaned from the College‟s responses at Steps 1 and 2. For present
purposes, I assume that both the Step 1 and 2 meetings were held only after the College advised
the grievor that she would not be awarded the position following her interview, although it is not
entirely clear if this was so as of the March 27, 2014 Step 1 meeting given the parties‟ agreement
that the grievor was informed “within approximately one week” that she would not be awarded
the position, having been interviewed on March 20. I note as well that despite the parties‟
agreement to argue preliminary matters in writing without having called viva voce evidence, the
Union sought to rely on disputed facts set out in its written submissions. I do not consider it
necessary or appropriate to refer to or rely upon such contested evidence at this time.
46. The Step 1 and 2 grievance responses indeed focus on the Union‟s assertion that the grievor
ought to have been treated as an “internal applicant” subject to article 17.1.1, with the College
initially taking the position that the grievance was inarbitrable. As emphasized by the College,
there is no indication in its Step 1 and 2 responses that the Union specifically raised or that the
parties specifically addressed during the grievance procedure the selection panel‟s decision or
process. As noted, however, I am satisfied that the grievance encompasses the Union‟s
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challenge to the College‟s decision not to award the grievor the posted position. While I accept
that grievance procedure discussions, at least as reflected in the College‟s responses, were
narrow in focus and in some sense at “cross purposes,” I am not convinced that this in itself
justifies the conclusion here that the grievance challenges only the initial failure to interview the
grievor.
47. The question posed by the parties for determination at this time is as follows: Does the
grievance contest only the College‟s initial failure to interview the grievor for the position in
issue or does it more broadly contest the College‟s failure to award the grievor such position as
communicated to her in late March 2014 after interviewing her? I conclude that the grievance is
properly construed as more broadly contesting the College‟s failure to award the grievor the
position in issue as communicated to her in late March 2014 after her interview.
48. My jurisdiction is retained in this matter, and the hearing will proceed as scheduled.
DATED at TORONTO this 21st day of September, 2015.
“M. Tims”
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Mary Lou Tims, Arbitrator