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HomeMy WebLinkAboutBooth 93-02-01IN THE MATTER OF AN ARBITRATION BETWEEN: NIAGARA COLLEGE (The College) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The Union) AND IN THE MATTER OF THE GRIEVANCES OF K. BOOTH AND M. MANJOS - #90C084 BOARD OF ARBITRATION: Kenneth P. Swan, Chairman A.S. Merritt, College Nominee Jane Grimwood, Union Nominee APPEARANCES: For the College: C.G. Riggs, Counsel H. Van der Slagt G. Pevere D. Schleich I. Moren G. Rowbottom J. Balasak G. Giorno For the Union: D. Wright, Counsel M. Doyle N. Lacroix AWARD This arbitration concerns the grievances of Mr. K. Booth and Ms. A. Manjos, both dated February 22, 1990, and both alleging that the grievors were improperly terminated from employment by the application of the College's mandatory retirement policy. While the grievances include an allegation that this constitutes a breach of section 15 of the Charter of Rights and Freedoms, as well as past practice, both of those allegations were abandoned at the hearing. The only issue before us is whether the requirement that these two individuals retire was contrary to the collective agreement. The history of this matter may be briefly stated. In May, 1988, the College announced a new mandatory retirement policy to be effective August 31, 1989. Until that time, there existed no such policy, and some employees had from time to time worked past age 65. The policy, as promulgated, is as follows: RETIREMENT POLICY 1. Effective 1989-08-31, the normal retirement age for all College employees is 65 years. 2. Faculty may continue to work to the end of the Term in which the 65th birthday occurs. 3. All other employees may continue to work to the end of the month in which the birthday occurs. 4. This Policy also applies to all employees who are presently over age 65. - 2 - PROCEDURE 5. Employees will be notified, one year in advance, by the Personnel Department of the anticipated retire- ment date. 6. Employees may submit a written request, within thirty (30) calendar days to the Director of Per- sonnel stating that they wish a time extension of up to one (1) year. 7. A committee consisting of the President, the Vice- President, Administration, the Vice-President, Academic, and the Supervisor will meet to consider the application. (a) The committee may interview the employee to obtain clarification or additional informa- tion. (b) In considering each application on its own merits, the committee will consider relevant circumstances including, for example: - the operational needs of the College including the timing of the request, program needs, enrolment, funding, re- cruitment requirements, market condi- tions, College planning and financial considerations; - succession planning and career planning; - impact on layoff, redundancies and attri- tion; and - the situation of the applicant, including ~i~ reasons for the request and performance, skills and ability. (c) If the request is accepted, the President will recommend approval to the Board of Governors. (d) The employee will be advised of the decision not later than four (4) months in advance of the retirement date. Mr. Kenneth Booth, who had been a full-time Professor at the College, teaching machine shop skills and retraining., since - 3 - October 1979, would have been required to retire under the policy on August 31, 1989. Mr. Booth testified that, when he had been asked to come to the College to teach, leaving behind his indus- trial employment, he had been told that it would be possible to work beyond age 65. Because the new policy seemed to preclude that, he decided to apply for an extension of one year, based upon advice that such extensions could only be considered and granted on a year-to-year basis. His application was considered by the committee established under the policy, which also met with him to discuss his reasons for the application. An extension was ultimately granted, but only for one more term, until December 31, 1989. Because of an intervening strike, this was subsequently extended to January 30, 1990 to finish out the term. A further application from Mr. Booth to extend his retirement by another academic year was denied without any further interview between him and the committee. From all the evidence, it appears that the extension was granted to Mr. Booth because it would permit him to complete ten years of service before retirement, with the effect that he could cash out a portion of his sick leave credit accumulation. This was apparently a very valuable concession, which allowed Mr. Booth to receive some $19,000 in the cash-out to which he would not have been entitled without the extension. There is no question that Mr. Booth remained fit in body and spirit to continue to teach his courSes. Indeed, he has been teaching since his retirement on a partial-load basis, and there is - 4 - no suggestion that his performance of those duties is in any way less than commendable. Ms. N. Manjos was a full-time Professor at Niagara College from 1970, teaching in the Office Administration division in the areas of typing, bookkeeping, math and English, as well as computer skills and shorthand. Under the new policy, she would have been required to retire on December 31, 1989. She filed an application for an extension under the policy, and met with the committee established to consider that application. The reasons which she advanced for the extension were generally economic in nature, although not of such a dramatic import as the entitlement to sick leave pay-out in Mr. Booth's case. She also passed on the desire of her students for her to remain with them until the end of the academic year in June. She was subsequently informed by letter that her application had not been accepted, and apart from a brief extension of the teaching term due to the strike, she was required to retire. In her case, it appears that it was decided that her teaching assignments could easily be taken over by a replacement without any harm being done to the interests of the students, and the financial considerations were judged to be of insufficient to gravity to effect the decision. Once again, however, there is no question about her continuing abilit to teach at a high level of performance. Based on these facts, the Union advances three arguments. First, the Union asserts that the College cannot unilaterally - 5 - impose a mandatory retirement policy. Second, and in the alterna- tive, the Union asserts that even if the College can impose such a policy, the present policy does not meet the standards required by the collective agreement. Finally, and in the further alternative, the Union argues that the application of the policy in these two cases was unfair and contrary to the collective agreement. We shall assess these arguments in turn. The following provisions of the collective agreement are relevant to this consideration: MANAGEMENT FUNCTIONS 7.01 It is the exclusive function of the Colleges to: (a) maintain order, discipline and efficiency; (b) hire, discharge, transfer, classify, assign, appoint, promote, demote, lay off, recall and suspend or otherwise discipline employees subject to the right to lodge a grievance in the manner and to the extent provided in this Agreement; (c) to manage the College and, without restricting the generality of the foregoing, the right to plan, direct and control operations, facil- ities, programs, courses, systems and pro- cedures, direct its personnel, determine complement, organization, methods and the number, location and classification of person- nel required from time to time, the number and location of campuses and facilities, services to be performed, the scheduling of assignments and work, the extension, limitation, curtail- ment, or cessation of operations and all other rights and responsibilities not specifically modified elsewhere in this Agreement. 7.02 The Colleges agree that these functions will be exercised in a manner consistent with the provisions of this Agreement. SENIORITY - 6 - 8.02(a) It being understood that the release of an employee during the probationary period shall not be the subject of a grievance under the Grievance Procedure but may be subject to the internal complaint process as referred to in Article 14.02(iv), an employee who has completed the probationary period and is discharged for cause may lodge a grievance in the manner and to the extent provided in the Grievance Procedure. 8.02(b) An employee being discharged who has completed the probationary period shall be notified in writing by the College President or the person(s) the College President designates for that purpose. When the reasons for discharge of the employee are not such as to warrant immediate discharge, the College will give ninety (90) calendar days' written notification. Any vacation entitlement of an employee shall be paid in addition to the ninety (90) days' notice period or to any payment in lieu thereof. $.10(a) Seniority shall be lost and employment deemed terminated if: (a) an employee is discharged and is not rein- stated through the grievance or arbitration procedure; (b) a person is laid off for more than twenty-four (24) months; (c) an employee resigns or leaves the employ of the College; (d) a person on lay-off fails to return to the College's employ in accordance with the notice of recall; (e) a person utilizes a leave of absence for other than the reason for which the leave of absence is given; or (f) a person fails to return upon the completion of any leave of absence except for reasons satisfactory to the College 8.10(b) Notwithstanding clause (d) of Article 8.10(a), a person on lay-off shall not lose seniority and shall not be deemed to be terminated where the person is unable to return to the College's employ, on one (1) occasion only during the lay-off, where a notice of recall is of one (1) month's duration or less. It is u~derstood that in such circumstances, the College and the employee may mutually agree to adjust the period of the notice of recall where educational and operational objectives so require. - 7 - 8.11 A full-time employee shall continue to accumu- late seniority for the purpose of this Article while: (a) in the College's active employ; (b) absent through verified illness or injury and/or leave of absence for up to twenty-four (24) months; (c) on a College-approved leave of absence on an exchange program; (d) on a College-approved professional development leave of absence; (e) on a College-approved secondment for up to twenty-four (24) months. The Union argues that the scheme of the collective agreement is to confer certain specified rights on management, including a limited number of rights in relation to the termination of faculty members. In that list of rights, there is no reference to a right to compel retirement, although retirement is referred to elsewhere in the collective agreement in relation to certain benefit plan provisions. When the absence of a right to compel retirement in Article 7 is compared with the importance placed upon seniority in Article 8 and elsewhere, the Union argues that the obvious inference is that the parties have not bargained to allow the College to impose a unilateral mandatory retirement scheme. Moreover, the Union argues that clauses 8.10 and 8.11 set out, between them, a complete code as to acquisition and loss of seniority, and that absent any reference in those sections to retirement, the argument is significantly strengthened. The difficulty with the Union's primary position is that it has been much litigated in the past, and the authorities are overwhelmingly against the Union's position. Since the decision in Bell Canada v. Office and Professional Employees' International - 8 - Union. Local 131 (1973), 37 D.L.R. (3d) 561 (SJC.C.), it has been well-established that the concept of retirement is one quite separate from disciplinary, non-disciplinary or other terminations of employment. Similarly, in an earlier case, Canadian Car & Foundry Co. Ltd. v. Dinham (1959), 21 D.L.R. (2d) 273 (S.C.C.), the Supreme Court of Canada also found that a mandatory requirement to retire did not constitute an interference with seniority rights. The present chair has summarized the effect of these decisions in the following terms in Re United Steelworkers of America. Local 6500 and Office and Professional Employees' International Union, Local 343 (1982), 8 L.A.C. (3d) 71 (Swan), at page 76: Since the decision of the Supreme Court of Canada in Bell Canada v. Office & Professional Employees' Int'l Union, Local 131 (1973), 3i7 D.L.R. (3d) 561, 73 C.L.L.C. para. 14,170 [1974] S.C.R. 335, it has been accepted that retirement is a different concept from dismissal, and that an employer is not required to justify retirement by reference to any concept of just cause. Indeed, while arbitrators have often asserted jurisdiction to review retirement decisions, the general position is that management has the right to impose compulsory retirement so long as that right is not restricted by the language of the collective agreement: see Re Electrical Power ~stems Construction Assoc. and Ontario Hydro & Ontario Allied Construction Trades Council (1978), 18 L.A.C. (2d) 205 at p. 211 [1978] 2 Can. L.R.B.R. 109 (Carter), and the cases cited there. This general right, of course, is subject to a number of qualifications. First, there are restrictions in the general law relating to discrimina- tion on' the basis of age which may affect a particular exercise of the managerial authority: see Human Rights Code, 1981 (Ont.), c. 53, s. 9(a). Second, there may be restrictions expressly or impliedly spelled out in the collective agreement itself. Third, a number of arbitra- tion awards have asserted that management's right to retire cannot be exercised in an arbitrary, discrimina- tory or unreasonable manner: see the Electrical Power Systems case, supra, at pp. 211-2, and the cases cited - 9 - therein. Finally, a number of the cases assert that, for a retirement policy to be effective, the employer must have given notice in adequate terms to the employees to be affected by that policy: see Re Oshawa Times and Toronto Newspaper Guild. Local 87 (1977), 14 L.A.C. (2d) 375 (McLaren). We agree with the employer's assertion that, subject to these qualifications, it had the right to set a retirement policy and to apply it compulsorily to the grievor; we therefore propose to assess the exceptions to this argument to see whether there are any sound reasons to prevent the employer in this case from exercising its general authority to establish and implement a compulsory retirement policy. Other cases to the same effect are Re Electrical Power Systems Construction Association, cited in the quotation immediate- ly above, Re Ontario Institute for Studies in Education and Ontario Confederation of University Faculty Associations (1987), 28 L.A.C. (3d) 161 (Burkett), and Re Oueensway General Hospital and Canadian Union of Public Employees, Local 1106 (1981), L.A.C. (2d) 177 and (1982) 4 L.A.C. (3d) 354 (P.C. Picher). As to the qualifications discussed in the Re United Steelworkers case, we shall turn to the third of these in discussing the Union's alternate argument, and it is agreed that the first and final qualifications do not apply here. The only other issue is whether there are "restrictions expressly or impliedly spelled out in the collective agreement itself", apart from the arguments based on the management rights clause and the seniority provisions. The fact is, however, that this collective agreement with more or less the same relevant language has been interpreted on at least three occasions over the years to the effect that it does not prohibit an mandatory retirement policy. In Re Algonquin College and Ontario Public Service Employees Union (Stafford), November 16, - 10 - 1981 (Weatherill), the board of arbitration came to the don¢lusion that the question of mandatory retirement was an aspect of "superannuation", a matter which is either not negotiable, or need not be negotiated, under section 3 of the Colleges Collective Bargaining Act. In the alternative, the majority of the board of arbitration finds that it was open to the College to establish a retirement policy unilaterally, based on the reasoning in the Bell Canada and Canadian Car line of cases. To the same effect is Re Cambrian College of Applied Arts and Technology and Ontario Public Service Employees Union (1981), I L.A.C. (3d) 46 (Brunner), although that case involves itself in a somewhat more technical interpretation of section 3 of the Colleges Collective Bargaining Act. A similar interpretation appears to have been reached by a board of arbitration in an arbitration involving Fanshawe College and the Union, involving interim awards dated January 19, 1992 and November 18, 1992. We have not been provided with copies of the award, but the reasoning of the board of arbitration, to the effect that the collective agreement does not prevent the establishment of a mandatory retirement policy, is set out in detail and approved of by the Ontario Divisional Court in Re Board of Governors of Fanshawe College of Applied Arts and Technology and Ontario Public Service Employees Union et al. (1984), 44 O.R. (2d) 545 (Ont. Div. Ct.). While we recognize that arbitration awards between the Union and one College under this collective agreement are not - 11 - formally binding on the Union in respect of all other Colleges, the fact of the matter is that the collective agreement has been interpreted on a number of occasions by arbitrators to permit a mandatory retirement policy of the type involved here, and the collective agreement has been renegotiated without any fundamental changes, or at least any to which we were referred by counsel, to those aspects of its provisions which might bear upon the propriety of such a policy. We are therefore of the view that the Union's first argument must fail. The collective agreement does not prevent the College from implementing a mandatory retirement policy, and the retirement of the two grievors here cannot be challenged on that ground. Before turning to the alternative grounds, we note in passing that there is a further arbitration award on the subject of the mandatory retirement policy in effect at another College, Re Ontario Council of Regents for Colleges of Applied Arts and Technology (St. Lawrence College) and Ontario Public Service Employees Union (Blair) (1986), 24 L.A.C. (3d) 144 (Teplitsky). Arbitrator Teplitsky challenges, with some justification in our view, the interpretation in the earlier cases of the word "superan- nuation'' in section 3 of the Colleges Collective Bargaining Act which is advanced in the Algonquin College and Cambrian College cases, supra. Mr. Teplitsky concluded that the College was exercising its management rights in imposing a mandatory retirement policy. In essence, we agree with him, but we also agree with the alternative reasoning in the Algonquin College case, supra, in - 12 - which Mr. Weatherill found that such an exercise of management rights was in no way contrary to the collective agreement. Mr. Teplitskywent on to find that the exercise of management rights in this way was a breach of section 15 of the Canadian Charter of Rights and Freedoms; for reasons which need not be set out at great length here, that argument is no longer tenable in light of subsequent decisions of the Supreme Court of Canada, and was, as stated above, abandoned by counsel for the Union at the hearing. The Union's alternative argument is that no policy may be imposed which is arbitrary, unreasonable or discriminatory, a proposition for which it advances comments in arbitrator Weatherill's decision in the Algonquin College case, and comments by the present chair in the United Steelworkers case. The unreasonableness in the present case, in the Union's submission, comes from the virtually unlimited discretion which the College has kept for itself to permit extensions. The Union argues that this could permit selective extensions which could be based entirely on favouritism, and could also have the effect of producing a deleterious impact on rights of other employees on lay-off and recall if the effect of retaining an employee otherwise required to resign was to keep other employees from returning to work. It is ..generally accepted by arbitrators that the implementation of a mandatory retirement policy by an employer pursuant to the exercise of its management rights is something which must be done in good faith and not unreasonably: see Re Oueensway General Hospital and Canadian Union of Public Employees, - 13 - Local 1106 (1981), 30 L.A.C. (2d) 177 (P.C. Picher). But there is nothing in the policy which, on its face, renders the policy inherently unreasonable, discriminatory, arbitrary or in bad faith. The mere fact that discretionary extensions are permitted in individual cases did not, for example, lead the majority of the board of arbitration in the AlGonquin College case, supra, to find that the policy was not reasonable. At least implicitly, the same decision appears to have been reached in the Re Cambrian College case, supra. Finally, the same conclusion was reached in Re Oueensway General Hospital and Canadian Union of Public Employees. Local 1107 (1982), 4 L.A.C. (3d) 354 (P.C. Picher). At page 365, the majority makes the following observations: Some retirement policies establish an age at which all employees, regardless of their capabilities, are automatically retired. The mandatory retirement policy adopted by the hospital in the instant case, however, is flexible and anticipates exceptions to retirement at age 65 when certain conditions are met. It is clear on the face of the hospital's retirement policy, however, that even where the conditions are met, an employee does not have an automatic right to continue working. Rather, in those circumstances, a head nurse "may recommend" and the executive director "may approve" that employment be continued for a further period. The authority to extend the period of employment is discretionary. Subject to arguments of discrimination, the estab- lishment of the flexible policy of compulsory retirement raises a general presumption that a person will retire at the established age of 65. If the employee requests to continue working after age 65 the hospital's discretion- ary response becomes more like a decision to hire than a decision to discharge. The onus rests with the employee to persuade the employer to continue his employment rather than with the employer to justify the severance of the employment. In the result, we also reject the Union's first alterna- - 14 - rive argument. The Union's final alternative argument is that, in these two particular cases, the decisions in relation to non-extension were arbitrary, unreasonable, discriminatory or in bad faith. In fact, there is no evidence of bad faith here, and the Union's argument really boils down to an allegation that the College exercised its discretion in an arbitrary way. We have looked at the evidence which is before us, and we are hard-pressed to see any impropriety in the way in which these employees were treated. In both cases, the employees were permitted to make submissions in writing, and subsequently orally before the committee. In both cases, the College concluded that on the one criterion which most affected its own interests, whether it would be able to staff its course offerings properly without the services of one or the other of the grievors, it could dispense with their services as full-time faculty. In the case of Mr. Booth, it was thought desirable to re-hire him on a partial-load basis to continue to teach some of his offerings; in the case of Ms. Manjos~.~t was found possible to replace her with another full- time employee. While Ms. Manjos raised the concern about the impact on the students, the College seems to have considered that the impact would not be deleterious in the circumstances. As to the other issue raised by both of them, financial considerations, there is nothing to lead us to the conclusion that the College did not give careful consideration to this factor as well. What must be recalled, however, is that this will be a - 15 - factor in virtually every case of an employee requesting an extension. While there may be some employees, under some pension plans, for whom continued employment would not result in increased pension benefits, for the vast majority of retiring employees even a short period of further employment will enhance pension benefits, without speaking of the value of a further period on full salary. While the procedure for considering applications for extension at least implicitly permits such financial considerations to be raised, it can probably be expected that it will only be extraordinary circumstances that will move the College to base a decision solely upon such considerations. That appears to be what happened in Mr. Booth's case, since he would have lost a very valuable benefit had he not been permitted to put in the full ten years' service required to avail himself of the sick leave pay-out. Recognizing the extraordinary cost of a strict application of this policy, the College permitted him sufficient further service as a full-time employee to avoid that loss. In our view, the financial considerations in Mr. Booth's case and those in Ms. Manjos' case, or for that matter those in relation to Mr. Booth's further application, are quite different, sufficiently so to justify the differential treatment applied by the College. There is a suggestion that the College's failure to grant Mr. Booth an audience in relation to his second application somehow constitutes a procedural flaw in the way in which his case was handled. We think, however, that on all of the evidence the College had already rejected an application to continue any farther - 16 - beyond the end of the autumn term of 1990 when it r~fused his earlier application for a one year extension in part by granting him only an extension for a single term. This was therefore not a situation of a fresh application, but rather of a request for reconsideration of a decision that had already been made. In the circumstances, given that Mr. Booth did not suggest in his letter that his request was based on any material change in circumstances, we think that it was reasonable for the College to proceed as it did. In the result, therefore, we are of the view that the grievances must fail on all three of the grounds advanced by the Union. We appreciate that mandatory retirement is a matter of considerable concern to the employees affected, but we are constrained by the absence of any controls in the collective agreement on the way in which the College can exercise its management right to invoke a policy of mandatory retirement, and by the absence of any demonstrable flaws in the way in which that policy was applied in the present cases. DATED AT TORONTO this 1st day of February, 1993. ~e~an I concur "A.S. Merritt" A.S. Merritt, College Nominee I concur; see attached "Jane Grimwood" addendum Jane Grimwood, Union Nominee JANE C. GRIMWOOD 111 Richmond Street West Suite 500 Toronto, Ontario /I5H 2H5 Tel: (416) 287-6372 Re: Niagara College & Ontario Public Service Employees Union Griex~ances of K. Booth and M. Manjos OPSEU 90C084 Addendum to the Decision of the Majority While I concur with the decision of the majority, I feel it incumbent upon me to express certain concerns which place this case in~-a proper context. Canada's population is aging. "Grey Power" is a concept that did not exist 20 years ago. Concurrently, there are numerous statistics confirming that better fitness, diet, and conditioning, combined with improvements in. drugs and health care, have rendered the decades-old concept of "retirement at 65", obsolete. Amendments to various Provincial and Federal Statutes in this country, and similar statutes in the United States, allowing 65year-olds to maintain their employment status, also confirm what everyone already knows. Moreover, with the ravages of recession, and deflation, continued employment is the key to maintaining one's dignity. This case is not about the GRIEVORS· ability to do their jobs effectively-- that issue is conceded. It is about whether or not society as a .whole, and Niagara College as an educational institution supposedly reflecting societal values, ought to enforce mandatory retirement¥ at any age. "Youth will be served" is a well-worn cliche. But let us not trample on their predecessors' dignity while doing it. Grimwood, Union Nominee