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HomeMy WebLinkAboutMaier 00-09-28IN THE MATTER OF AN ARBITRATION BETWEEN: HUMBER COLLEGE AND: ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND IN THE MATTER OF A CERTAIN GRIEVANCE OF R. MAIER O.B. SHIME, Q.C. CHAIRPERSON J. CAMPBELL NOMINEE FOR THE COLLEGE E. SEYMOUR NOMINEE FOR THE UNION APPEARANCES: C.G. RIGGS COUNSEL, and others for the College G.A. RICHARDS REPRESENTATIVE, and others for the Union A hearing was held in this matter on April 28, 2000, at Toronto, Ontario AWARD On March 13th, 1996, the grievor was informed, that as a result of provincial funding cuts and the resultant academic restructuring, the College did not have a full-time position for him for the 1996-97 academic year. The grievor was given a notice in writing which provided him with 90 calendar days written notice of layoff commencing March 13th, 1996 to June 10t", 1996. The notice period was provided in accordance with Article 27.05 (viii) of the collective agreement. The College on April 17, 1996 made further arrangements for the grievor to continue teaching until July 5th, 1996, and his notice of layoff was extended to that date; it was expected that he would be released for retraining as of July 5% 1996. The grievor was notified and the Chair, Ken Simon, met with him and remained available to discuss the details of the notice extension and any other matters related to his work assignment. On June 28, 1996, the College confirmed that it was unable to determine an alternative teaching assignment for the grievor, but provided him with a number of options, including retraining, that he was to consider. On July 8% 1996, the grievor filed two grievances. The first (referred to as the displacement grievance) claimed that he had been improperly laid off because the College failed to displace an employee with less seniority in a position for which he had the required competence. The grievor claimed that was a violation of Article 27.06(ii) of the collective agreement and requested that he be pl~ced in a position currently held by a person with less seniority than he had. The second grievance (referred to as the bad faith grievance) claimed that his layoff was improper, was issued in bad faith and was contrary to the provisions of the collective agreement and, more particularly, that the College had not given preference to the continuation of a full time position in violation of Article 27.05(iii) and Article 2 of the collective agreement. In that grievance, the grievor requested that he be placed in a full time position made up of the work available in the -2- College which he had the competence, skill and' experience to perform. On August 8th, 1996, the College replied to the two grievances. As to the first grievance (the displacement grievance) alleging an improper layoff, the College confirmed that the grievor had named Ken McKay and Marijan Fuchs as the employees to be displaced under Article 27.06(ii). The College also took the position that the grievor did not have the skill, competence or experience to replace Mr. McKay. The College took the same position with Marijan Fuchs and also claimed that he was appointed as a professor on May 2"d, 1994, and has had no teaching assignments but performs program co-ordinator duties. As to the second grievance (the bad faith grievance), the College denied it had violated Article 27.05(iii) and Article 2 and claimed that.it had met its obligation under those articles. The College also took the position that the procedures under Article 27.05(iii) and the issues under Article 2 were not subject to grievance by an individual employee, and further, that the grievance was untimely under the provisions of the collective agreement. Because the timing of the grievance is significant, it is important to note that while the College took the position that the bad faith grievance was untimely, it did not take the same position with respect to the other grievance. On November 7th, 1996, the Union submitted a third grievance on behalf of the grievor and suggested that the grievance process commence at Step 2 and requested that the College contact the Union to make arrangements for a meeting to discuss the grievance. That grievance claimed that the College had violated Article 27.06 (viii)(d) of the collective agreement and requested the College reassign the grievor to a full time position. On August 13, 1996, the Union advised the College that it was referring the displacement -3- grievance to arbitration. However, on November 27th, 1996, the Union advised the College that its reply to the grievances dated July 8th, 1996, were not satisfactory and stated that they were referring both grievances to a board of arbitration. This referral is a duplication with respect to the displacement grievance which had been referred earlier. Also on January 6th, 1997, the Union advised the College that it was referring the grievance dated November 7t~, 1996, to a board of arbitration. The College, as a preliminary objection, maintained that the Union and the grievor had not proceeded in accordance with the grievance provisions of the collective agreement. Both the College and the Union are agreed that the requirements of the grievance procedure are mandatory. At this juncture it is useful to set out the relevant provi.sions of the collective agreement which are as follows: Article 2 STAFFING 2.01 The Colleges shall not reclassify professors as instructors except through the application of Article 27, Job Security. 2.02 The College will give preference to the designation of full-time positions as regular rather than partial-load teaching positions subject to such operational requirements as the quality of the programs, attainment of the program objectives, the need for special qualifications and the market acceptability of the programs to employers, students, and the community. 2.03A The College will give preference to the designation of full-time positions as regular continuing teaching positions rather than sessional teaching positions including, in particular, positions arising as a result of new post-secondary programs subject to such operational requirements as the quality of the programs, enrolment patterns and expectations, attainment of program objectives, the need for special qualifications and the market acceptability of the programs to employers, students, and the community. The College will not abuse sessional appointments by failing to fill ongoing positions as soon as possible subject to such operational requirements as the quality of the programs, attainment of program objectives, the -4- need for special qualifications, and enrolment patterns and expectations. 2.03B The College will not abuse the usage of sessional appointments by combining sessional with partial-load service and thereby maintaining an employment relationship with the College in order to circumvent the completion of the minimum 12 .months sessional employment in a 24 month, period. 2.03C If the College continues a full-time position beyond one full academic year of staffing the position with sessional appointments, the College shall designate the position as a regular full-time bargaining unit position and shall fill the position with a member of the bargaining unit as soon as a person capable of performing the work is available for hiring on this basis. Lay-off and Involuntary Transfer 27.05 When a College plans to lay-off or to 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 a planned lay-off or reduction of employees the following procedure shall apply-'.'- (iii) If requested by a member of 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. (vii) 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. 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 involuntarily 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 -5- following placement and displacement provisions shall apply to full-time employees so affected. Where an employee has the competence, skill and experience to fulfill the requirements of the full-time position concerned, seniority shall apply consistent with the following: (i) An employee will be reassigned within the College to a vacant full- time position in lieu of being laid off if the employee has the competence, skill and experience to perform the requirements of a vacant position. (ii) Failing placement under 27.06(i), such employee shall be reassigned to displace another full-time employee in the same classification provided that: (a) the displacing employee has the competence, skill and experience to fulfill the requirements of the position concerned; (b) the employee being displaced has lesser seniority with the College. - ~ (iii) Failing placement under 27.06(ii),.such employee shall be reassigned to displace a full-time employee in another classification upon acceptance of the identical employment conditions as the classification concerned provided that: (a) the displacing employee has the competence, skill and experience to fulfill the requirements of the position concerned; (b) the employee being displaced has lesser seniority with the College. (iv) Failing placement under paragraph 27.06(iii), such employee shall be reassigned to displace two partial-load employees provided that: (a) the displacing employee has the competence, skill and experience to fulfill the requirements of the position concerned; and (b) each of the partial-load employees being displaced has lesser months of service with the College as determined in Article 26, Partial-Load Employees, than such displacing employee's months of seniority; and (c) it is understood that the College retains the right to assign additional work to the employee, where warranted, subject to the limits prescribed by Article 11, Workload. -6- (v) (a) Failing placement under 27.06(iv) or where the employee has waived in writing the right in 27.06(iv) such employee shall be reassigned to displace one partial-load employee and one or more part-time employees whose assigned courses are as described in 27.06(v)(b),. provided that: (i) the displacing employee has the competence, skill and experience to fulfill the requirements of the position concerned, and (ii) each of the employees being displaced has lesser months of service with the College (as determined in Article 26, Partial-Load Employees, or Appendix 1X, as appropriate) than such displacing employee's months of seniority; and (iii) it is understood that the College retains the right to assign additional work to the employee where required so that the work assignment so created constitutes a full-load assignment in accordancewith the limits prescribed by Article 11, Workload. (b) The courses taught by the part-time employees displaced must be: (i) The same as, or (ii) Essentially the same as, or (iii) Pre-requisite courses to those taught by the partial- load employee concerned. (c) Such employee shall have the lay-off notice extended until completion of the assignment so created and shall maintain current salary and benefits for the duration of that assignment. (d) Upon completion of the assignment so created, or as mutually agreed between the College and the employee, 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. (e) Failing placement under 27.06(v)(d), such employee shall be laid off without further notice upon completion of the partial- load assignment. (vi) (a) Failing placement under 27.06(v) or where the employee has waived in writing the right in 27.06(v), such employee shall be reassigned to displace one partial-load employee and engage in approved retraining activities such that the employee retains current salary and benefits for the duration of the partial-load assignment provided that: (i) the displacing employee has the competence, skill and experience to fulfill the requirements of the position concerned; and (ii) the partial-load employee being displaced has lesser months of service with the College (as determined in Article 26, Partial-Load Employees) than such displacing employees months of seniority. (b) Such employee shall have the lay-off notice extended until completion of the partial-load employee's assignment and shall maintain current salary and benefits for the duration of the partial-load assignment. (c) Upon completion of the partial-load assignment, or as - mutually agreed between the College and the employee, 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. (d) Failing placement under 27.06(vi)(c), such employee shall be laid off without further notice upon completion of the partial-load assignment. (vii) (a) Failing placement under 27.06(vi)(a), or where the employee has waived in writing the right in 27.06(vi)(a), such employee shall be reassigned to displace a sessional employee (who has more than 90 days remaining on the sessional employee's term appointment) provided that the displacing employee has the competence, skill and experience to fulfill the requirements of the position concerned. (b) Such employee shall have the lay-off notice period extended until completion of the sessional employee's assignment and shall maintain current salary and benefits for the duration of the sessional assignment. (c) Upon completion of the sessional assignment or as mutually agreed between the College and the employee, such employee shall be reassigned to a vacant full-time position -8- if the employee has the competence, skill and experience to perform the requirements of a vacant full-time position. (d) Failing placement under 27.06(vii)(c), such employee shall be laid off without further notice. (viii) (a) Failing placement under 27.06(vii)(a), orwhere 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 -~ (b) Such a reassigned person shall be.deemed to be laid off and eligible for recall in accordance with 27.09B and 27.09C, 27.03E and the rights under 27.09A. (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. (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. (e) Failing placement under 27.06(viii)(d), such employee shall be laid off without further notice. -9- Lay-Off Grievances 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 27.08A, two full-time positions, or positions occupied by two or more partial-load or part-time employees (the sum of whose duties will from 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. Article 32 GRIEVANCE PROCEDURES 32.01 Article 32.02 to 32.05 inclusive apply to an employee who has been employed continuously for at least the'preceding four months. Complaints 32.02 It is the mutual desire of the parties that complaints of employees be adjusted as quickly as possible and it is understood that if an employee has a complaint, the employee shall discuss it with the employee's immediate supervisor within 20 days after the circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the employee in order to give the immediate supervisor an opportunity of adjusting the complaint. The discussion shall be between the employee and the immediate supervisor unless mutually agreed to have other persons in attendance. The immediate supervisor's response to the complaint shall be given within seven days after discussion with the employee. Grievances 32.03 Failing settlement of a complaint, it shall be taken up as a grievance (if it falls within the definition under 32.12 C) in the following manner and sequence provided it is presented within seven days of the immediate supervisor's reply to the complaint. It is the intention of the parties that reasons supporting the grievance and for its referral to a succeeding Step be set out in the grievance and on the document referring it to the next Step. Similarly, the College's written decisions at each step shall contain reasons supporting the decision. Step One An employee shall present a signed grievance in writing to the employee's -10- immediate supervisor setting forth the nature of the grievance, the surrounding circumstances and the remedy sought. The immediate supervisor shall arrange a meeting within seven days of the receipt of the grievance at which the employee, a Union Steward designated by the Union Local, if the Union Local so requests, the Dean of the Division and the immediate supervisor shall attend and discuss the grievance. The immediate supervisor and Dean will give the grievor and the Union Steward their decision in writing within seven days following the meeting. If the grievor is not satisfied with the decision of the immediate supervisor and Dean, the grievor shall present the grievance in writing at Step Two within 15 days of the day the grievor received such decision. The College submitted that the relevant date for determining the time for commencing the grievance procedure is under Article 27.08(a) and pursuant to that article, the grievor was given notice of layoff on April 17t~' and had twenty days from April 17th to initiate a complaint; since both grievances were filed on July 8th the College claimed they were out of time. The College also submitted that the grievor had twenty days from April 17th, 1996 to discuss the matter with his supervisor which was not done, and it was a precondition to the filing of a written grievance that these discussions take place. The College further submitted that the grievor had fifteen days after Step Two of the grievance procedure to refer the matter to arbitration and that Step Two had occurred on August 8% 1996, but the matter had not been referred to arbitration until November 27% 1996;accordingly, the reference to arbitration was out of time. Insofar as the third grievance was concerned, the College maintained that it was referred to arbitration on January 6% 1997, and again this grievance failed because of the absence of a discussion with a supervisor and also, at that time, the grievor had ceased to be an employee and could no longer file a g'rievance as he was not employed by the College. The Union submitted that it was not the letter of April 17, 1996, but rather the letter to the grievor on June 28th, 1996, that started the clock running, and upon receipt of that letter -11- the grievor became certain he would be laid off and filed a grievance and accordingly, the grievances dated July 8th, 1996, were not out of time. The Union further argued, in its reply to the grievance dated August 8th, 1996, that the College took the position the bad faith grievance was untimely, but did not take a similar position with respect to the displacement grievance under Article 27.06(ii) and therefore waived its right to object to timeliness with respect to the displacement grievance. Moreover, the Union maintains that the College in its Memorandum dated August 8th, 1996 did not object to the failure of the grievor to meet with his supervisor and accordingly waived that provision of the Collective Agreement. The Union further maintains that the referral to arbitration on August 13, 1996, of the displacement grievance was within the time limits. With respect to the third grievance the Union maintained that the reply to that grievance dated January 10th, 1997, also did not iake issue with the timeliness provisions in the grievance procedure, and, accordingly, the College waived any right to object to that matter. The Union also maintained, with respect to the third grievance, that the grievor Was, at all material times, an employee entitled to file a grievance since he retained his rights as an employee as long as he had recall rights. The Union further argued that the grievor could not file a grievance under Article 27.06 until he had completed his retraining, and that is when the right arose; therefore the third grievance was filed in a timely fashion because it was filed when the grievor became aware that his retraining would not produce a job for him. By way of reply, the College maintained that the Union was unable to waive the mandatory time limits of the Collective Agreement. The College also maintains that the referral to arbitration -12- on August 13, 1996, was with respect to one of the grievances only, and not the other. The grievor was originally given notice of layoff on March 13th, 1996, but on April 17% 1996, notice of layoff was extended to July 5th, 1996. The letter of March 13% 1996, provides as follows: Dear Mr. Maier: This letter confirms our conversation today, Wednesday, March 13, 1996, with Ken Simon, Chair, School of Manufacturing & Design during which you were informed that primarily as a result of the provincial funding cuts and the resultant academic restructuring, the College, at this time, does not have a full-time position for you for the 1996/97 academic year. This letter also serves to provide you with at least ninety (90) calendar days written notice of layoff, commencing March 13, 1996 to June 10, 1996. This notice period is provided in accordance with Article 27.05 (vii)(page 62).of the Academic Collective Agreement. The actual date of layoff will be determined in the context of the notice period, retraining period and vacation time. The College Employment Stability Committee will continue, to explore ways to maintain your full-time employment; however, it was felt that issuing this notice would ensure you are aware of the seriousness of this situation and provide you with time to plan your future. You are entitled to meet with a Human Resources Consultant, Hyacinth James (extension 4225) to discuss your layoff, explore alternative teaching assignments available under the process described in Article 27.06 of the Academic Collective Agreement, benefit, salary and severance pay issues. Should the College not be able to maintain your full-time employment under Article 27.05 or as provided for under Article 27.06, you will be released on or about May 10, 1996, from all or part of your normally assigned duties for the purpose of engaging in retraining activities. For such retraining the College will extend your notice of layoff by up to ninety (90) calendar days from the date of release from your duties. In order to be granted release for this retraining period, the College will expect to receive a retraining plan with the timeframe required no later than April 15, 1996. Under certain circumstances, the College is extending the early leave option to faculty facing layoff. Should you prefer to elect an early leaving package as opposed to layoff, you must have elected early leaving prior to the commencement of the retraining period. Details regarding both situations will be available from the Human Resources...Department after March 20, 1996. -13- The President of the Academic Union (OPSUE, Local 562) Maureen Wall, has been notified of your pending layoff and has met with the College Employment Stability Committee on a number of occasions regarding this situation. The College truly regrets the necessity of this course of action and I assure you that we will attempt to assist you in every way possible. Sincerely, Robert A. Gordon President The letter of April 17, 1946, provides as follows: Dear Mr. Maier: Further to your notice of layoff dated March 13, 1996, this letter confirms that the College has made arrangements for you to teach until July 5 1996. As a result your notice of layoff is extended to July 5, 1996 and it is expected that you will be released for retraining on that date. Your Chair, Ken Simon has met with you on this matter and remains available to discuss the details of the extension of your notice and any other matters related to your work assignments. Your Salary, benefits and seniority remain unchanged. Should you have questions on this process, please contact me at extension 4225. Sincerely, Hyacinth James Human Resources Consultant On June 28th, 1996, a further letter was sent to the grievor which provides as follows: -14- Dear Mr. Maier: Further to your written notice of layoff dated March 13, 1996 and subsequent related communications and discussions, including the letter of April 17, 1996, this letter serves to confirm that, the College has been unable to determine an alternative teaching assignment for you within the College. As a result, we would now normally notify you of the usual practice followed by the College in the layoff process. Recently, however, the College and the Academic Union reached an agreement regarding an alternate process which you may elect to follow. Both of these processes are outlined below for your consideration. These processes are complex and each faculty member's circumstances are different. Therefore, you are encouraged to ask Hyacinth James for any clarification you need. The Usual Process Since the College has been unable to determine an alternative teaching assignment for you within the College, you are released from all of your normal assigned duties at the end of the day on July 19, 1996. This date takes into consideration your ten -,- (10) days of Professional Development credited to you for the 1995/1996 academic year to be used during the period July 5 - 19, 1996. Normally, you would be released to engaged in retraining activities for a period of up to 90 days. However ' retraining is approved upon submission of a retraining plan to cover the period of up to 90 days. To date we have not received your retraining plan, although you advised me verbally today that you will submit it by noon on July 2, 1996. The remainder of the details in this letter are contingent upon your submission of a retraining plan, satisfactory to the College and the College reserves the right to adjust your retraining period and date of layoff in response to your provision of an appropriate plan. Therefore, your notice peri.od has been tentatively extended to cover a 90 day retraining period during which time you will continue to receive full salary and benefits. At the end of the retraining period, the College will implement the following: a) Reassign you to a vacant full-time position if such a vacancy-is available and subject to determining that you have the competence, skill and experience to perform the requirements of such a full-time position (Article 27.06 viii(d) refers). Should this occur, a letter will be issued to you providing details of the appointment. b) Failing replacement in a full-time position as at (a) above, you shall be laid off at the end of the retraining period, or in any event not later than October 17, 1996. Your vacation credit, estimated at 30 days as of May 31, 1996 will be paid out by the October 31, 1996 pay together with the balance of your final monies owed. The calculation of your vacation is based on service from September to July 5, 1996 which is the end of your notice period. -15- c) As a laid off employee you are entitled to'a two year period of recall from the date of layoff and have the following opportunity: i) you may be recalled to your former or another full-time position, provided that you meet the skill, competence and experience to fulfill the requirements of the position concerned; ii) you may be offered a sessional appointment during your recall period providing you have the competence, skill and experience to fulfill the requirements of the sessional position concerned; Should you fill a sessional"'Position, you shall be deemed to be still on layoff and be paid the current salary rate at the step level in effect at the time of layoff for the duration of the sessional contract as outlined in Article 27.09 A(ii): You may elect to take an estimated severance payment of $10,506.72 calculated pursuant to Article 27.10 A and Article 27.10 B of the Collective Agreement (21% of your annual salary) and waive all your recall rights under the Collective Agreement by providing me with a written request within 3 months after termination of your notice period. If you decide to elect severance, you may sign the enclosed form (Appendix A) which is prepared for your convenience or you may prepare and submit your own document. It is important to note that by electing severance, you Will be terminating your recall rights and any employment relationship you have with Humber College. Please note that should you not elect severance pay within the three month period specified above, severance 'pay will be calculated in accordance with the provisions of .the Employment Standards Act, that is, one week of pay (at your current salary) for each completed year of service. Specifically, your severance payment under these circumstances will be $8,341.84. Your service with the College from 1988 01 25 to 1996 10.17 represents 8 years and 8 months of completed service or 8.67 weeks of severance. As you do not have the requisite ten years of service for your sick leave credits to become vested, there is no payment to be made in this regard. An election of severance pay and any payment of vacation credit may affect the date on which you are eligible to receive unemployment insurance benefits and you are advised to explore your eligibility for this benefit with an unemployment insurance officer. Should you wish to pursue these pay outs and R.R.S.P. rollover, please contact Ron Newman in the College's Benefit Office at extension 4425. A record of Employment will be issued as of your layoff date. This document is required for application for unemployment insurance benefits. Alternative Process Please note that the process described above is the usual practice the College has followed in the layoff process. The Academic Union and the College recently came to an agreement with regards to a process for dealing with retraining, vacation and professional development. This agreement is attached as Appendix B. You may choose to engage in this process in lieu of the format described in the paragraphs above by signing the statement enclosed as Appendix C and returning it to Hyacinth James as soon as possible but in any event not later than July 10, 1996. Should you elect to engage in this process, your release date for retraining will be changed to July 5, 1996 and at this point, the effective date of your layoff is determined to be November 28, 1996. This date is subject to adjustment based on your retraining plan and outstanding professional development and vacation days. It must be noted also that by electing the process outlined in the agreement, you will, among other things, remain on the payroll for the period of your vacation which will extend your service with the College. You may wish to speak to Paul Michaud or Eleanor O'Connor from the Academic Union and Hyacinth James (Human Resources) to clarify any questions you may have about this process. As an employee on layoff/recall you may also elect to take, tuition free, one (1) program or course offered by the College, for which you meet the normal entrance and admissions requirements. Should you have any questions or comments concerning the items raised in this letter, please contact Hyacinth James at extension 4225. Sincerely, Nancy Hood, Director Human Resources We now turn to consider the evidence in light of the arguments presented. It is important to note that, pursuant to Article 32.02, where an employee has a complaint, the employee shall discuss it with the employee's immediate supervisor within twenty days after the circumstances giving rise to the complaint have occurred or might reasonably have come to the attention of the employee, in order to give the immediate supervisor an opportunity of adjusting the complaint. The supervisor's response is to be given within seven days after discussion with the employee. The requirements under Article 32 are further refined by Article 27.08A which provides that the time limit referred to in 32.02 for presenting complaints shall apply under Article 27.08A from the -17- date written notice of layoff is given to the employee. Originally, notice was given to the grievor on March 13th, 1996, and that notice was extended by a further notice on April 17th, 1996. There appears to be no dispute about those notices. In our view, the letter dated June 28th, 1996, is a further notice of layoff to the grievor. It is apparent that the letter of June 28% 1996, did a number of things. First, it extended the grievor's period of employment until July 19% 1996, which was beyond the time contained in the letter of April 17th, 1996. Second, it notified the grievor of an alternative practice including the possibility of retraining while extending the notice period to cover a ninety day retraining period, during which time the grievor'was to continue to receive full.salary and benefits. Third, the letter of June 28th, 1996, held out the possibility that the grievor might be reassigned to a vacant full time position if such vacancy became available, and further indicated that failing placement in a full time position, that the grievor would be laid off at the end'of the retraining period or, in any event, not later than October 17th, 1996. Fourth, the grievor was also advised that he could elect to take an estimated severance payment and waive recall rights under the Collective Agreement provided that he provide a written request within three months after termination of his notice period. Fifth, the grievor was informed as to certain other benefits such as sick leave credits and his responsibility to restore eligibility for unemployment insurance benefits with an unemployment insurance officer. Sixth, the letter describes an alternative process and informed the grievor, should he elect to engage in this process, his release date for retraining would be changed to July 5th, 1996, and at this point the effective date of his layoff was determined to be November 28th, 1996. That date was also subject to adjustment based on a retraining plan and any outstanding professional development and vacation days. Seventh, the grievor was also notified that if he was to elect the -18- process outlined in the agreement, he would remain on the payroll for the period of his vacation which would extend his service with the College. What is apparent is that the' letter of June'28th, 1996, provides the grievor with a number of options and fleshes out the original notices including the notice of April 17th, 1996. Indeed, it was not until June 28th, 1996 that the grievor became fully aware of all the circumstances surrounding his layoff, including the possibilities that were available to him. Also, the letter of June 28th, 1996, suggests that "each faculty member's circumstances are different." The acknowledgement by the College that each member's "circumstances" are different suggests that the circumstances that were referable to the grievor were contained, and finally consolidated, in the letter of June 28t", 1996. Pursuant to Article 32.02, the time period commences to run within twenty days after the "circumstances" giving .rise to the complaint have occurred, and it was on June 28th, 1996, that the grievor became aware of all the "circumstances" which affected him. It was only on that date when all of the circumstances relevant to the grievor's layoff were known to him, including the possibility of dates being extended, that the gdevor was in a position to grieve and, therefore, the time did not start to run until that date. Therefore the filing of the grievances on July 8, 1996, was not out of time and well within the time limits under Article 32. Once the "circumstances" were known, then, pursuant to Article 32.02, if the grievor had a complaint, he was required to discuss it with his immediate supervisor within twenty days after the circumstances giving rise to the complaint occurred or came to his attention. There is no assertion by the Union that the grievor discussed his complaint with his immediate supervisor and the Union does not contest the mandatory nature of that requirement. In the College's letter of April 17th, 1996, there is a suggestion by the College that the Chair, Ken Simon, had met with the -19- grievor with respect to this matter, and a reasonable inference may be drawn that that obviates the need for the grievor to again discuss the issue with his immediate supervisor. In any event, there is no evidence that the specific complaints contained in the grievances were discussed with a supervisor, particularly, the College's alleged failure to displace an employee with less seniority than the grievor and also the lack of alleged bad faith, because the College did not give preference to the continuation of a full time position. Since the Union did not submit that a discussion was held with the supervisor, in our view, there was a failure by the grievor to comply with the mandatory requirements of Article 32.02 respecting complaints. However, on August 8th, 1996, when the College responded to the grievances, the College denied the bad faith grievance and took the position that that grievance was untimely under the provisions of the Collective Agreement. However, the College did not take the position that the grievor had failed to discuss the subject matter of his two grievances with a supervisor. By only raising the issue as to the timeliness of the one grievance, and not asserting that the grievor failed to meet with his supervisor, it is our view, that the College waived the requi¢~ment that the grievor meet with his supervisor. The failure of the College to object to these matters at the first opportunity constitutes a waiver of its position with respect to both grievances, and its objection at this late stage is untimely. Additionally, by treating with the issues in the displacement grievance, the College took the next step in the process and waived its right to object to the failure of the grievor to meet with his supervisor with respect to that grievance. While time limits may be mandatory, it is our view, that they are procedural irregularities capable of being waived by either of the parties. Georqe Brown College of Applied Arts and Technoloq¥ v OPSEU, December 1995; unreported (K.M. Burkett). On August 13th, 1996, the Union advised the College that it found the College's response -20- to the displacement grievance dated July 8th, 1996, to be unacceptable and stated that it was referring that grievance to a Board of Arbitration. There is no evidence that the other grievance was referred at the same time. In our view, the requirement at Step Two of the grievance. procedure, that a matter be referred to arbitration by notice in wdting given to the other party within fifteen days of the date of receipt by the grievor of the decision, has been complied with with respect to the displacement grievance. Since there is no specific requirement as to how this notice is to be given, simply providing notice that the matter has been referred to arbitration, in our view, is sufficient compliance with the time limits under Article 32.03, Step Two. It is apparent that the letters of November 27th, 1996, referring both matters to arbitration are clearly out of time under Article 32.03, and since the time for referral is mandatory, these late referrals to arbitration are not valid. While the. displacement grievance is saved by the reference to arbitration on August 13th, 1996, the preliminary objection with respect to the Article 27.05 and Article 2 (the bad faith) grievance is allowed, because there was no reference of that grievance to arbitration within the mandatory time limits pursuant to Article 32.03. On November 7th, 1996, the Union submitted a third grievance, on behalf of the grievor, alleging that the Colieg.e had violated Article 27.06 (viii)(d) of the Collective Agreement. Briefly, Article 27.06 (viii) allows an employee, who is not placed in accordance with the provisions of the article, to engage in retraining activities. The Article also requires that failing placement, an employee shall be laid off with written notice of not less than ninety calendar days. Article 27.06 (viii)(d) also provides, that at the termination of the retraining period, the employee shall be reassigned to a vacant full time position, if the employee has the competence, skill and experience to perform the requirements of the vacant full time position. If the employee cannot be placed under that Article the employee shall be laid off without further notice. -21- The College maintained that there was no discussion of this grievance with the supervisor and further, that the grievor had ceased to be an employee and can no longer file a grievance. The College also submitted that the right to file a grievance is subject to the mandatory time limits and those time limits commenced on April 17th, 1996. The Union asserted that the grievor engaged in retraining and that the retraining lasted until October 18th, 1996. The Union further submitted that the grievor could not know if his rights under Article 27.06 (viii)(d) of the Collective Agreement were violated until the completion of his retraining and that the third grievance was filed within twenty days of the grievor becoming aware that he would not be assigned pursuant'to Article 27.06(viii)(d) and (e). It is apparent from reading Article 27, tl~at a person who engages in retraining activities still remains an employee. Article 27.06(viii)(d) states that at the termination of the retraining period "such employee shall be reassigned" and the following Article provides that failing placement "such employee shall be laid off without further notice". Faced with those explicit provisions the College's submission that the grievor was not an employee during and after the retraining period cannot be sustained. In a Memorandum, dated November 7th, 1996, the Union submitted the November 7th grievance and suggested that given the circumstances the parties begin the grievance process at Step Two. With respect to this particular grievance we simply do not have any detailed evidence as to what occurred between the time of the filing of the grievance and the referral of that grievance to arbitration on January 6, 1997. However, it does appear, from a College Memorandum dated January 10th, 1997, that there were discussions relating to this grievance. In the Memorandum, -22- the College took the position that there was no violation of the Collective Agreement and that there was no vacant full time position for which the grievor had the competence, skill and experience and denied the grievance. In the same letter, the College also noted that the Union had referred this matter to arbitration. However, there is nothing in the Memorandum to indicate when the discussions took place and what had occurred and, again, the College took no position with respect to the timeliness of the grievance or any failure by the grievor to discuss the matter with his supervisor, or the timeliness of the referral to arbitration. Clearly, the College did not object to any of these matters and more particularly to the timeliness of the referral to arbitration, although it did note that it had been referred. The College had previously objected to time limits in the earlier grievance, and was well aware of its right to object if there was a failure to comply with any of the provisions of the grievance procedure, and by failing to object on this occasion in a timely fashion, the College waived its right to object to these alleged failures by the Union in complying with the grievance procedure. In the result, the College's objection to the bad faith grievance is allowed, but its objections with respect to the remaining grievances are dismissed. This matter is to be scheduled for a hearing on the merits. -23- DATED AT TORONTO THIS 28th DAY OF SEPTEMBER, 2000. Owen B. Shime, Q.C. Chairperson Partial Dissent Attached J. Campbell Nominee for the College "1 Concu¢' E. Seymour Nominee for the Union ~ Si'~28--2000 18:22 AM CMPBELL MANAGEMENT 905 762 8246 ~'ARTIAL DISSENT While I co:acm' with the Board's determination with respect to the "bad faith grievance I respectfully dissent from the majority awaxd regarding the other two grievances. The requirement for adherence to the time limits for processing grievances under this collective agreement is supported by jurisprudence and was recognized as mandatory by the Union during thc course of thc hearing. Similarly, thc requirement under Article 32 with respect to meeting with the employee's supervisor regarding a complaint, must bc considered as obligatory given the language agreed to by the parties i.e. "the employee shall discuss it with the employee's immediate supervisor within 20 days". Counsel for ttle Employer ar/,nled that the issue here was not one of waiver and that the mandatory requirements with respect to the actions to .be taken in the grievance procedure cannot be waived unless both parties agree. Failure to comply with thc timeliness requirements and the meeting with the supervisor cannot be considered as merely" procedural irregularities". I therefore would have dismissed the other grievances.