HomeMy WebLinkAboutTremblay 92-10-09BETWEEN:
NORTHERN COLLEGE
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
GRIEVANCE OF SUZANNE TREMBLAY
BOARD OF ARBITRATION:
JANE H. DEVLIN CHAIRMAN
JOHN T. KOSKI COLLEGE NOMINEE
BRIAN SWITZMAN UNION NOMINEE
Appearances for the College:
A.E. Burke
P. MacLean
Appearances for the Union:
Alick Ryder
Richard Mason
OPSEU FILE NO.: 91F879
DATE OF HEARING: April 13, 1992
The Grievor, Suzanne Tremblay, commenced her employment
with the College as a full-time teaching master in August of
1986. Prior to the fall of 1991, she taught in the General Arts
Department at the Kapuskasing campus. The Grievor's husband is
also employed in Kapuskasing and her children attend school in
that locale.
By letter dated August 27~ 1991, the College provided
the Grievor with 90 calendar days' written notice of layoff as
required by Article 8.04(g) of the Collective Agreement. At the
same time, the College advised the Grievor that, in lieu of
laying her off, it intended to exercise its rights under Article
8.05(a) to reassign her to a vacant position in the General Arts
Department at the Timmins campus. There was no dispute that the
Grievor possessed the necessary,skill, competence and experience
to fulfill the requirements of this position. In any event, the
College also indicated that it would provide the Grievor with
assistance during the period of transition from her previous
position to her new position at the Timmins campus.
The Grievor received the College's letter of August
27th on September 3rd at which time she was advised that her
assignment to the Timmins campus would take effect on. September
9, 1991. The evidence indicates that it takes approximately 2
1/2 hours to drive from Kapuskasing to Timmins and although the
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Grievor initially attempted to arrange a shortened work week at
the Timmins campus, she was unable to do so.
Accordingly, on September 9, 1991, the Grievor
telephoned Peter MacLean, the Director of Human Resources at the
College, and advised him that due to personal and family
commitments, she was declining the reassignment to the Timmins
campus. She subsequently confirmed this conversation in writing
and indicated that she continued to be available for a full or
part-time position at the Kapuskasing campus. She also indicated
that she expected to receive 90 days' notice of layoff and
requested information concerning her layoff entitlement.
Following the telephone conversation of September 9th,
Mr. MacLean also wrote to the Grievor and advised her that, as
her reassignment to the Timmins campus was made in lieu of
layoff, it was not open to her to decline the reassignment and
elect instead to be laid off. Mr. MacLean further indicated that
if the Grievor declined the reassignment, she would be deemed to
have resigned her employment with the College. In these
circumstances, Mr. MacLean invited the Grievor to reconsider her
decision and to contact the College prior to September 16th.
On September 16th, the Grievor telephoned Mr. MacLean
and confirmed that she was declining the reassignment to the
Timmins campus. As a consequence, Mr. MacLean informed the
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Grievor that the College viewed this action as a resignation of
her employment. In the result, the Grievor filed a grievance in
which she claimed that the College had failed to provide her with
90 days' notice of layoff.
The following provisions of the Collective Agreement
are relevant to the determination of Ms. Tremblay's grievance:
8.04 . . .
(g) 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 ninety (90) calendar days
duration 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 (3) calendar days to discuss the basis of the
College selection of the employees affected.
8.05 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
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:
(a) 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;
(b) failing placement under paragraph (a) above,
such employee shall be reassigned to displace
another full-time employee in the same
classification provided that:
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(i) the displacing employee has the competence,
skill, and experience to fulfill the
requirements of the position concerned;
(ii) the employee being displaced has lesser
seniority with the College.
(c) failing placement under paragraph (b) above, such
employee shall be re-assigned to displace a full-time
employee in another classification upon acceptance of
the identical employment conditions as the
classification concerned provided that:
(i) the displacing employee has the competence,
skill, and experience to fulfill the
requirements of the position concerned;
(ii) the employee being displaced has lesser
seniority with the College.
(d) failing placement under paragraph (c) above, such
employee shall be reassigned to displace two partial-
load employees (as referred to in Appendix II) 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 partial-load employees being
displaced has lesser months of service with
the College as determined in Appendix II 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 warranted, subject to the
limits prescribed by Article 4.
(e) (i) failing placement under paragraph 8.05(d)
above or where the employee has waived in writing the
right in paragraph (d) above, such employee shall be
reassigned to displace one partial-load employee (as
referred to in Appendix II) and one or more part-time
employees whose assigned courses are as described in
paragraph 8.05 (e) (ii) below, ~provided that:
(a) the displacing employee has the competence,
skill, and experience to fulfill the
requirements of the position concerned; and
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(b) each of the employees being displaced has
lesser months of service with the College (as
determined in Appendix II or Appendix IV, as
appropriate) 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 required so that the work
assignment so created constitutes a full-load
assignment, and is in accordance with the
limits prescribed by Article 4.
(e) (ii) the courses taught by the part-time employees
displaced must be:
(a) the same as, or
(b) essentially the same as, or
(c) pre-requisite courses to those taught by the
partial-load employee concerned.
(e) (iii) such employees shall have the layoff notice
extended until completion of the assignment so created,
and shall maintain current salary and benefits for the
duration of that assignment.
(e) (iv) upon completion of the assignment so created,
or as mutually agreed between the College and the
employee, such employee shall be reassigned within the
College 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) (v) failing placement under paragraph 8.05(e) (iv)
above, such employee shall be laid off without further
notice upon completion of the partial-load assignment.
(f) (i) failing placement under paragraph 8.05(e)
above or where the employee has waived in writing the ·
right in paragraph (e) above, such employee shall be
reassigned to displace one partial-load employee (as
referred to in Appendix II) 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:
(a) the displacing employee has the competence,
skill and experience to fulfill the
requirements of the position concerned; and
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(b) the partial-load employee being displaced has
lesser months of service with the College as
determined in Appendix II than such
displacing employee's months of seniority.
(f) (ii) such employee shall have the layoff 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.
(f) (iii) upon completion of the partial-load
assignment, or as mutually agreed between the College
and the employee, such employee shall be reassigned
within the College 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.
(f) (iv) failing placement under 8.05(f) (iii) above,
such employee shall be laid off without further notice
upon completion of the partial-load assignment.
(g) (i) failing placement under paragraph 8.05(f) (i)
above or where the employee has waived in writing the
right in paragraph (f) (i) above, such employee shall
be reassigned to displace a sessional employee (who has
more than ninety (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.
(g) (ii) such employee shall have the layoff 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.
(g) (iii) upon completion of the sessional assignment,
or as mutually agreed between the College and the
employee, such employee shall be reassigned within the
College 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.
(g) (iv) failing placement under 8.05 (g) (iii) above,
such employee shall be laid off without further notice.
(h) (i) failing placement under paragraph 8.05 (g) (i)
or where the employee has waived in writing the right
in paragraph (g) above, such employee shall be
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reassigned to displace a part-time employee upon
acceptance of the identical employment conditions as
the part-time employee concerned provided that:
(a) the displacing employee has the competence,
skill and experience to fulfill the
requirements of the position concerned; and
(b) the part-time employee being displaced has
lesser months of service with the College as
determined in Appendix IV than such
displacing employee's months of seniority.
(h) (ii) such a reassigned person shall be deemed to
be laid off and eligible for recall in accordance with
Article 8.06 and 8.10.
(h) (iii) failing placement under paragraph (h) (i)
above, such employee shall be laid off with written
notice of not less than ninety (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 ninety (90) days to permit
retraining and the employee shall maintain current
salary and benefits for the duration of the notice
period.
(h) (iv) at the termination of the period referred to
in paragraph 8.05 (h) (iii) above, such employee shall
be reassigned within the College 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.
(h) (v) failing placement under 8.05 (h) (iv) above,
such employee shall be laid off without further notice.
(a) 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
Article 11.02 for presenting complaints shall apply
from the date written notice of lay-off is given to the
employee.
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(b) If the grievance is processed through Step 2, the
written referral to arbitration in Article 11.03 shall
specify, from the positions originally designed in (a)
above, two full-time positions, or positions occupied
by two or more partial-load or part-time employees (the
sum of whose duties will form 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 the sub-paragraphs (a), (b), (c), (d), (e),
(f), (g) or (h) of Article 8.05.
It was the submission of Mr. Ryder, on behalf of the
Union, that the College was required to provide the Grievor with
90 calendar days' notice prior to implementing its decision to
lay her off which, in this case, took the form of a reassignment
to the Timmins campus. Alternatively, in the event that the
College was entitled to proceed under Article 8.05(a) prior to
the expiry of the 90 daylnotice period, Mr. Ryder submitted that
the Grievor was not obliged to accept the reassignment but could
~ elect instead to be laid off or to exercise her displacement
rights. Were this not the case, Mr. Ryder contended that a
senior employee could be deprived of the displacement rights
provided for in Article 8.05(b) to (h) of the Agreement. Mr.
Ryder further submitted that the Grievor's claim to exercise her
displacement rights does not involve an expansion of the
grievance and he requested that the Board remain seized to deal
with this issue.
It was the submission of Ms. Burke, on behalf of the
College, that once the College provides an employee with 90
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calendar days' notice of layoff as required by Article 8.04(g),
it may proceed to reassign the employee in accordance with
Article 8.05. Ms. Burke contended that as such a reassignment is
made in lieu of layoff, there is no requirement to await the
expiry of the 90 day period. Moreover, Ms. Burke contended that
an employee may not decline a reassignment to a vacant position
and elect instead to be laid off. In this regard, Ms. Burke
submitted that the language of Article 8.05(a) can be contrasted
with other aspects of the layoff procedure in which an employee
may waive the right to exercise certain displacement rights. In
the result, an employee who declines a reassignment pursuant to
Article 8.05(a) is properly deemed to have voluntarily terminated
her employment with the College.
Finally, Ms. Burke took objection to the Grievor's '
claim to exercise her displacement rights and submitted that such
a claim is beyond the scope of the grievance. In this regard,'
Ms. Burke pointed out that the Grievor did not, as required by
Article 8.08 of the Collective Agreement, identify in her
grievance the employees whom she sought to displace. In these
circumstances, it was submitted that no such claim may be
advanced at the hearing.
The first issue to be determined, then, is whether the
College was required to await the expiry of the 90 calendar day
notice period referred to in Article 8.04(g) prior to reassigning
10
the Grievor to the Timmins campus. Having considered the
provisions of the Collective Agreement, it is our view that there
was no such requirement. While Article 8.04(g) provides for 90
calendar days' notice of layoff, Article 8.05(a) specifies that a
reassignment to a vacant'position pursuant to that Article is
made "in lieu of being laid off" with the result that the notice
provision does not apply to such a reassignment. Moreover,
Article 8.05(a) provides for a reassignment "within the College"
and, therefore, applies equally to a reassignment at another
campus as to a reassignment at the same campus. In the latter
case, there would be no reason to delay the effective date of the
reassignment. As well, where a number of employees are subject
to layoff, the College's operation could be severely hampered if
it were precluded, for a period of 90 days, from making
reassignments which would have the effect of avoiding a lay°ff.
In any event, in our view, the language of the layoff procedure
does not support the interpretation advanced by the Union but
instead makes it clear that the parties contemplated that
assignments pursuant to Article 8.05(a) would be made during the
notice period.
For this reason, we find that the awards in Centennial
College and Ontario Public Service Employees Union August 3, 1983
(Weatherill (unreported)) and Fanshawe College and Ontario Public
Service Employees Union May 17, 1989 (Devlin (unreported)) which
were relied upon by the Union are distinguishable. In each of
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those cases, the College notified an employee of the impact of a
planned staff reduction prior to consulting with the Union as
required by Article 8.04~ In the Centennial college award, the
majority of the Board found that the requirement for consultation
was not a mere formality but was a condition precedent to the
involuntary transfer of the Grievor. In contrast, in this case,
the expiry of the 90 calendar day notice period provided for in
Article 8.04(g) is not a condition precedent to the College
reassigning an employee to a vacant position in accordance with
Article 8.05(a) of the Agreement.
The next issue, then, is whether it was open to the
Grievor to decline such a reassignment. In this regard, Article
8.05 of the Collective Agreement sets out the procedure to be
followed when the College decides to lay off or to reduce the
number of full-time employees who have completed the probationary
period or to transfer involuntarily full-time employees to
another position from that previously held as a result of such
layoff or reduction of employees. Article 8.05(a) to (h) then
sets out the placement and displacement provisions, which are to
apply to affected employees.
Article 8.05(a) provides that an employee will be
reassigned within the College to a vacant position in lieu of
being laid off provided the employee has the skill, competence
and experience to fulfill the requirements of the vacant
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position. The balance of the Article then sets out certain
displacement rights and provides that if an employee is not
placed in accordance with these provisions, he or she may be
entitled to an extension of the notice period for purposes of
retraining. Thereafter, the employee shall be reassigned to a
vacant position, again providing the employee has the skill,
competence and experience to fulfill the requirements of the
vacant position.
In our view, it is clear from the provisions set out
that a reassignment to a vacant position pursuant to Article
8.05(a) is mandatory in the sense that it is not open to an
employee to decline the reassignment and elect instead to be laid
off or to exercise displacement rights in accordance with the
remainder of Article 8.05. In this regard, not only does Article
8.05(a) provide that an employee with the necessary skill,
competence and experience will be reassigned to a vacant position
within the College but the language of this provision is to be
contrasted with other aspects of the layoff procedure in which an
employee may waive the right to exercise displacement rights and
yet be entitled to exercise such rights under the remaining
subsections of Article 8.05. No similar proviso appears in
Article 8.05(a).
As pointed out by the Union, however, by requiring an
affected employee to accept a reassignment to a vacant position,
13
that employee could be required to transfer to another campus and
be deprived of the opportunity to exercise displacement rights.
Nevertheless, as noted previously, Article 8.05(a) provides for a
reassignment "within the College" rather than at a particular
campus and, in this respect, is consistent with the notion that,
under this Collective Agreement, employees enjoy college-wide
seniority. Moreover, the parties have clearly agreed that as an
initial step in the layoff procedure, an affected employee is to
be reassigned to vacant position for which he or she is qualified
as by this means the employee may be maintained in employment
without the attendant disruption which can accompany the exercise
of displacement rights.
The interpretation we have adopted is also consistent
with a number of awards relied on by the College in which it was
held that in the event of a layoff, an employer is entitled to
retain senior employees who have the necessary qualifications to
perform the work. Absent specific language in the Collective
Agreement, an employee cannot elect to take layoff, rather than
exercise his seniority rights: see Re William Neilson Ltd. and
Canadian Food & Allied Workers', District 15 (1972), 1 L.A.C.(2d)
190 (O'Shea); Re Northern Electric and United Automobile Workers,
Local 1535 (1972), 1 L.A.C.(2d) 275 (Simmons) and Re Day¢on
Mechanical Ltd. and Sheet Metal Workers International
~ssociation, Local 397 (1991), 19 L.A.C.(4th) 129 (Davis).
.14
While we appreciate that a reassignment to the Timmins
campus would have presented considerable difficulty for the
Grievor and her family, nevertheless, the Collective Agreement
does not entitle an employee to decline a reassignment to a
vacant position pursuant to Article 8.05(a) on the basis that the
reassignment involves a transfer to another campus within the
College. Accordingly, the Board has no alternative but to find
that the Grievor's decision not to report to the Timmins campus
amounted to a resignation of her employment.
For the reasons set out, therefore, the grievance of
Ms. Tremblay is hereby dismissed.
DATED AT TORONTO, this 9th day of October, 1992.
Chairman
"John T. Koski"
College Nominee
See Dissent Attached
Union Nominee
IN THE.MATTER OF AN ARBITRATION
NORTHERN COLLEGE
(the "Coll~ge")
~ A N D -
ONTARIO PUBLIC SERVICE EMPLOYEES' UNION
AND ITS LOCAL 417
(the "union,,)
AND THE GRIEVANCE OF S. TREMBLA¥ #91F879
On September 3, 1991, Suzanne Tremblay, the grievor,
received a notice of layoff (Exhibit #3), which was signed by the
President of the College, Mr. Gervais. In it she was advised that
she was being removed from her position at Kapuskasing Campus.
Within six days she was to report for~ work in a vacancy at the
Timmins Campus of Northern College.
The official notice of layoff under Article 8 further
informs the grievor that:
"You should appreciate that if you disagreed
with the reassignment, we see no other options
for your under Article 8.05 but lay off."
The grievor is married with three children. They had
just started their school year in Kapuskmsing. In good weather the
drive, to Timr~ins from her home is 2% hours one way. She initially
attempted to get a shortened work week for h~r new position. That
was refused by the College.
The grievor then chose to accept the College's
2
interpretation of Article 8.05 as outlined to her in Exhibit #3,
and she accepted the College's offer of layoff (Exhibit #4). The
grievor also stated she remained available for any work ak the
Eapuskasing Campus.
In response, two days later on September 11, 1991, the
grievor received a letter from the Executive Director of Human
Resources, Mr. Peter MacLean, which stated a different position to
the grievor. In it he stated:
"You indicated on September 9, 1991 that you
declined to accept the reassignment. The
College can take no other view that you no
longer wish to work for the College and wish
to resign. You must appreciate that you do
not have a choice; you must accept the
reassignment or be deemed to be resigned."
(Exhibit #5)
In a telephone conversation of the 16th of September,
1991, the grievor repeated her position to Mr. MacLean. On
September 17, 1991, but effective the previous day, Mr. MacLean
terminated the grievor.
On these facts, it is my respectful view, the College
improperly (whether intentional or not) set up a constructive
discharge. This is a violation of the Just cause provisions of the
Collective Agreement.
Furtt~er, I am in agreement' with college President,
Gervais' interpretation of Article 8.05 as found in the official
notice letter (Exhibit #3). Ail parts of Article 8.05 (a)-(h) were
open %o the grievor and in the event that she disagreed with the
reassignment she could select a lay off. This appropriate, and
correct interpretation of Article 8.05 was violated by the actions
~f Mr. MacLean only a f~w days later when the grievor, because of
her restrictive personal choices, opted to accept President
3
Gervais' offer of a layoff in lieu of a forced transfer.
Finally, it is my respectful view, that Article 8.04 was
also violated. A mandatory 90 day notice period ..."shall be given
to employees being laid off." Clearly, this notice is to cover all
employees whose position is declared redundant and "who must move
to a different position".' This'notice is not restricted only to
"put out on the streets" The notice is
employees who are being, .
required to be given to any employee who might e×erci'se any of the
rights found in section 8.05(a)~(h). This 90 day notice period
cannot be truncated'unilaterally by the College. The grievor did
not receive the full 90 day notice period. She is entitled to it
as a mandatory provision. Anyone put in such a situation (even
without the specific machinations imposed on the grievor) requires
such a notice period to rearrange their personal and professional
lives. Even if it is assumed that the grievor could be forced to
take the position at the Timmins Campus, the parties have
~egotiated a substantial right of 90 days notice. Instead, at tile
very least, the College acted prematurely in firing the grievor
effective on September 16, 1991, some thirteen days after she was
given notice to either report to the Timmins Campus or elect a
layoff. In my respectful view, my colleagues have improperly
amended Article 8.04 to now,read ..."up to 90 days notice" and they
have no such jurisdiction to amend the Collective Agreement.
I would have upheld the grievance and ordered the
reinstatement of Ms. Tremblay without loss of seniority, wages or
benefits.
DATED AT TORONTO this 7th day of October, 1992.
rian Switzman
union Nominee
CHAIRMAN'S ADDENDUM
Having read Mr. Switzman's dissent, there are two
matters to which I must respond.
1. The arguments advanced by the Union at the hearing are set
out in the award. These arguments did not include a
submission that the College made an offer of layoff which
was accepted by the Grievor. There was also no suggestion
that the Grievor was under any misapprehension as to the
College's position that she was required to accept a
reassignment to the Timmins campus and that she did not have
the right to elect layoff.
2. The requirement for 90 calendar days' notice applies to
layoff and not to a reassignment to a vacant position in
lieu of layoff under Article 8.05(a).
Chairman