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.
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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
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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
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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
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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
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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.
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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
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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
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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,
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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
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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
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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,
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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-
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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
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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
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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