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HomeMy WebLinkAboutUnion 89-06-14BETWEEN: ST. CLAIR COLLEGE OF APPLIED ARTS AND TECHNOLOGY (The College) AND: O.P.S.E.U. (The Union) AND IN THE MATTER OF A UNION GRIEVANCE RE LAYOFF, OPSEU NUMBER 88C899 BOARD OF ARBITRATION: H.D. BROWN, CHAIRMAN RON COCHRANE, UNION NOMINEE DAVID W. GUPTILL, COLLEGE NOMINEE APPEARNCES FOR THE COLLEGE: ANN E. BURKE, COUNSEL GERI ZUBYK, DIR. OF PERSONNEL SER. APPEARANCES FOR THE UNION: LAURA TRACHUK, COUNSEL W. STAMMLER, CHIEF STEWARD A HEARING IN THIS MATTER WAS HELD AT WINDSOR ON MAY 2, 1989. AWARD - 1 - On November 1, 1988 the Union filed a grievance alleging a breach of Article 8.02(b) of the collective agreement and Sections 10 and 12 of The Employment Standards Act "and all other Articles relating to vacation entitlement and notice period". The grievance was filed under Article ll.lO of the collective agreement in effect as of September 15, 1988. It was agreed by the parties that the grievance related solely to the following post secondary teachers: K. Barei, M. Ferrar, L. Flanagan, R. Hicks, M. Schouten. The Union claims in the grievance that those persons who have been terminated by a layoff since September 15, 1988 be reimbursed for two months vacation pay in lieu of wrongful notice period. The Union also seeks a declaration that the College shall not include vacation time as part of notice of termination by layoff in the future. The parties agreed that the Board was properly constituted and that it had jurisdiction in this matter. The parties provided an Agreed Statement of Facts at the hearing on - 2 - which the parties' submissions were based. The facts are as follows. In accordance with Section 40 of The Employment Standards Act, Berei, Ferrar, Flanagan and Schouten were entitled to 8 weeks notice of termination as of June 15, 1988 and Hicks was entitled to 3 weeks notice of termination as of that date. All $ were actually laid off as of September 16, 1988. Ferrar and Schouten did not report for work following June 24, 1988 as they accepted employment elsewhere prior to September 16, 1988. By memo dated April 15, 1988~ faculty vacations were scheduled for the period between June 27 to August 26, 1988, inclusive, as set out below. This memo was issued in the normal course pursuant to Articles 5.01 and 5.03 of the collective - 3 - agreement. Similar memos were issued in 1987, 1986, 1985 and 1984. ST. CLAIR COLLEGE 1988 O~ IS TO: Brook Gardner, Dean, ¢onttnuinB Education Jim Gretna, Doan, General Education Larry Eirk, Doan, Applied Arts, Buo~nnas & Consorts J~, #artin. Dean.' Health Sciences Bob Vooda, Doan, TechnoloaY and Trades Dan White, General annalnr, Xnduatrial lasourco Centre Nike Erakana, Director, Employer i Ga-nrnmonC Relations FION: Geston J. Prnnklyn REs FACULTY V&C&TZOIISt 1988 oooo$ooeoooeeeaeeaeeoeaoeoeeaeoeoeeeeeeloeeeoeoeoeooeeoeoe$o$ooo$ Tho norunl vacation period for facul=y for 1988 viii bo Juno 27- Autust 26 inclun~vs. Thin allows faculty to belin their vacation on a #onday and recurs' prior co the first scheduled day of clIIIII. Exceptions to the above any be entertained, if mutually acceptable to the chairpersons and faculty Bombers. Faculty · embers hired after September 1, 1987 will receive a pro rated portion of tvs months' vacation, and Personnel Services rill be pleased to advise them of their vacation entitlement. Please ensure thac ~ faculty and chairpersons are in£oraed of th~s vacation period, aa yell es the process for addresaina exceptlonaJ Tlmaks for your cooperation. Geston J. Franklyn Vice President, Academic cc. Personnel Services Bob Price D~ck Einl B~ll S~nnlnr /nd - 4 - Following the scheduling of the summer vacation pursuant to Exhibit 3, no employee grieved that the College scheduled thi~ vacation period for any improper purpose or without regard to employee requests with respect to the scheduling of their vacation contrary to Article 5.03 of the collective agreement. Sometime in or about the month of May 1988 it was decided by the College that a number of employees would have to be laid off. From about mid-May, meetings were held with the Union almost daily, pursuant to Article 8.04 of the collective agreement, as a result of which layoff notices were issued on June 15, 1988 to employees. NS, ~ATHRYN BA~I Dlir Ns. ~st~ ~ ~r I~ ~ ~ ~11~, ~ ~ of ~ will ~rully. I ~ ~iry ~ or ~ l~r ~r~tve FINM ~ass~ ~t ~ls ~1~ ~ ~ in 4~ ~ ~ ~1~. Slncermly y~rs, fl. I. lk:dmlMd - 5 - Pursuant to these notices 13 employees were actually laid off September l$, 1988, one was laid off September 23, 1988, one was laid off October 4, 1988, one was laid off November 25, 1988 and one was laid off December 31, 1988. The remaining employees given notice of layoff June 15, 1988 have continued to perform their regular duties and have not actually been laid off. The College advised all of those employees actually laid off of their right to elect to receive severance and waive recall rights pursuant to Article 8.16. Of those employees who have actually been .laid off, 8 have elected to forfeit their recall rights and accept their severance pay pursuant to Article 8.16 of the collective agreement. In accorUance with the vacation notice (above) all of those employees who received notice of layoff June 15, 1988 took vacation, pursuant to Article 5.01 of the collective agreement, between June 27, lg88 and August 26, 1988, inclusive. As a result, their vacation period, in part, overlapped their period of notice of layoff. - 6 - In the period between 1983 and 1988 the College has laid off 8 employees in the academic unit by way of notice of layoff and on each of those occasions where the summer vacation occurred during the notice period, employees on notice of layoff took their vacation during the notice period and were neither given additional notice due to the overlap nor were they paid any additional pay as is claimed in this grievance. In the period between 1983 and 1988 only 2 post secondary teachers were given notice of layoff. Gary Glatter was given notice on May ll, 1984 of his layoff effective August 10, 1984. Michael Balsdon was given notice on April 16, 1984 for a layoff effective July 16, 1984. Both of these employees were scheduled to be on vacation in accordance with Exhibit 7 from June 23, 1984 to August 26, 1984 and they were in fact on vacation during that period. Neither employee was given any additional notice due to the overlap nor were they paid any additional pay as is claimed in this grievance. Employees who were given notice of layoff June 15, 1988 had accrued vacation entitlement in excess of the two months between June 27, 1988 and August 26, 1988 and were paid the - 7 - value of any remaining entitlement at the time of their actual layoff. It is the submission for the Union that those teachers covered by the Union's grievance as indicated, although having been paid to September 15, 1988, which period included two months vacation, should receive 90 days notice plus two months vacation and therefore upon their layoff, it is the Union's claim that these teachers should have received an additional two months salary. Reference in its submission was made to the following Articles of the. collective agreement: 8.02 ~ ?l,.Oe no., .~1~ mn v~_'ting by ~e ~ll~e Pr~t or ~ ~(s) ~e ~m~e ~ent ~~ for ~at pu~. ~en ~e re~ ~ d~a~e of ~e ~yfl ~e ~ ~,~ ~ wi~int~mm~iate di~e, ~e'Col~e nm~ (~).~4r ~.~ ~t~ no~fi=~on. Any v~o~ en~t o~an ~ in I~ ~f. 8.04 off of one or more_eml~oyees who have competed the Im)bitk)nlry I)aciad written notice of lay-off of not less than ninety (gO) calendar days duration shall be given to employees being laid off. If requested by the emDIoya~, · College re~xesen~tive _.will.be avai. la. lde to meet with the emldoyee within three (3) calendar clays to discuss me oasis ot the College selection of the employees affected. .. NOTE: The I)rovisions of Articles 8.05 and 8.06, Appendix IX, remain in effect until August 31, 1988. On September 1, 1988 ArtidesS.0S and 8.06 are tel)laced - 8 - The Union submitted that The Employment Standards Act applies pursuant to Section 2(2}{a} of the Act and that Regulation 286(11) supports its claim and determines the issue. This section is: "The length of notice of termination of employment shall not include any week of vacation unless the person after receiving notice agrees to take his vacation during the period of the notice." It was submitted that the Board has a duty and authority to apply the terms of the Act and the interpretation of the collective agreement. Re McLeod et al v. Egan, 46 D.L.R. (3d) 150. It was submitted that the Act precludes the weeks of vacation to be included in the. notice of period of layoff. In this case the College unilaterally scheduled vacation before giving notice of layoff and improperly included vacation period in the notice. In its submission the terms of the collective agreement entitled the employees to 90 days notice of layoff plus two months of vacation. Reference was made to Re Cambrian College, a decision of the Public Service Grievance Board (Presgrave - June 1974). In that case the complainant was in the second year of his two year probation when he received notice of his severance from the College with three months notice. The grievance claimed a pro-rated holiday settlement which the College - 9 - scheduled as part of the three months notice and denied the grievance. The Board found: "In the opinion of the Board the Colleges come under The Employment Standards Act in certain stated areas; Section l0 of the regulations under the Act makes it clear that the overlapping of vacation credits with a period of notice of release from employment is not permitted unless agreed to by the person affected thereby." The Board directed a pro-rated holiday settlement. It is the submission for the College that the meetings required under Article 8.04 concerning plans for layoffs were held by the parties and the notice required under 8.04(f) applies. In its submission the Board should not apply a limitation to the notice period pursuant to The Employment Standards Act that the notice of layoff shall not include any weeks of vacation unless the employee agreed to do so. A layoff does not sever the employment relationship, but affects the extent of the act of -10- employment; however, seniority is retained and continued for up to twelve months and in the event of a layoff under Article 8.16, an employee may elect to receive severance pay by waiving recall rights. There is a difference in the agreement between a discharge under Article 8.02(b) and a layoff, Re Ottawa Civic Hospital and ONA, 17 L.A.C. (2d) 59 (Brent). See also Re George Brown College of Applied Arts and Technology and OPSEU (Weatherill - February 1978); Re Conestoga Collge and OPSEU (O'Shea - November 1976) in support of the submission that the collective agreement has not been breached where the employee, who has been laid off, has been obliged to take vacation during the notice period. It was submitted that the parties intentionally omitted the limitation to vacation scheduling rights in Article 8.04(f} a~ had been included in 8.02(b). Article 5 of the collective agreement provides for vacations and those faculty who have completed one full academic service with the College "shall be entitled to vacation of two months as scheduled by the College..." which is a vaction period and not vacation with pay, Re St. Clair College (.Brandt - February lg7g). The employee is entitled to 100 percent of his - ll - annual salary and as a matter of practice that sum is paid over a period of twelve months, which includes the vacation period, which is without pay. It was argued, therefore, that the terms of The Employment Standards Act are not applicable in that the jurisdiction to apply the Statute arises only where the provision of the contract in dispute conflicts with the provision of the Statute relied on, Re Denison Mines Ltd. and U.S.W.A., 5 L.A.C. (3d) 19 (Adams); Re Algonquin College and OPSEU, 19 L.A.C. (3d) 81 (Brent). It was argued that where the collective agreement was silent, there was no jurisdiction in the Board to apply statutory provisions in its interpretation of the agreement. In the present circumstances it was submitted that there is no provision in the collective agreement specifically dealing with the overlapping of vacations and notice of layoff. The Employment Standards Act cannot be used to decide an issue which arises by actions of the employer, and not under language of the collective agreement; therefore, in its submission, the ratio of McLeod v. E~an does not apply. It was further submitted for the College that The Employment Standards Act could not apply as the notice of thirteen weeks exceeds the requirement of the Act and grants a greater benefit to the employees. By Section 4{2) of the Act where a - 12 - greater right or benefit is given to employees than required by the Act, that greater right applies. Reference was made to a reference under The Employment Standards Act in Re Algonquin College (Kates, 1983) in which case it was stated: "Needless to say, the 90 day notice period provided under the complainant's terms and conditions of employment represented a superior benefit in comparison with the minimum standard required by part XII of the Act..." See also Re Fanaken v. Bell, Temple 46 O.R. (2d) 255. In its submission, if the Act applied, there would be an eight week notice requirement plus two weeks vacation which is less than the thirteen weeks of notice given to these employees by the College. There is no provision in the agreement to permit an employee to take vacation after notice of layoff. The employees were paid their regular pay to August 1988 and given notice in the usual course as required by the collective agreement and all of them proceeded on vacation on June 27 and remained on vacation until - 13 - August 26 and are deemed to have agreed to have taken vacation subsequent to the termination notice and therefore there was no violation of the Act. There is no requirement by the agreement or under the Act to extend the notice period to, in this case, five months including a two months vacation period, which would be the result in allowing an additional 90 days notice. In its submission the employees are not entitled to the remedy claimed. The College set the vacation period for faculty from June 27 to Augut 26, inclusive, in accordance with the memo set out above which was consistent with prior years scheduling of vacations at or about the same period of time. The employees involved in this dispute were subsequently on June 15, 1988 advised of their layoff effective September 15. The facts indicate that these employees did take their vacation period as scheduled and were paid their regular salary for that period of time. These employees were entitled to 90 days notice of layoff pursuant to Article 8.04(f) and were given that notice as the layoffs commenced in September. The vacation period for these employees overlapped the period of notice of layoff. The Union submits that in effect the vacation period should be exclusive of the period of notice and therefore claims an additional two months salary for the employees. We find that this claim is not supported by the terms of the collective agreement. We find that the employees were not discharged but were laid off in accordance with the provisions of Article 8.04 and therefore the provision of Article 8.02(b} does not apply to the facts of this case. The parties have included in that section, provision for an additional notice period to vacation entitlement, but significantly have not included a similiar provision when employees are laid off. In our view, this fact is consistent with the College's submission that employees have a period of vacation entitlement and are not given paid vacation. They are entitled to 100 percent of their regular salaries spread over twelve months. Therefore, it follows that when the College gave notice of vacation in the regular course of its scheduling, that was independent of the notice of layoff which was subsequently imposed. There is no term in the collective agreement which requires an employee who has been given notice of layoff, that the vacation period must be dealt with separately and in addition to the 9D days notice requirement so as to entitle such employees to additional compensation. As set out in the Conestoga award, "Article 5.01 does not contemplate a paid vacation. Article 5.01 only provides for a vacation period." - 15 - AS the collective agreement does not contain any specific provision for the requirement of a layoff notice to be exclusive of a vacation period under Article 5.01, the provisions of The Employment Standards Act cannot be in conflict and therefore it is not necessary for the Board to deal with the Statute as the interpretation is dependent on the provision of the collective agreement being in conflict with the Act as found in Re Denison Mines and Re Algonquin College (supra). Even ~in the alternative, if we consider the application of The Employment Standards Act to the facts of this case following the direct formula found in the George Brown award, the Board would find that the notice of layoff provided by the College in these circumstances exceeds the requirements of the Act and therefore, under Section 4(2) of the Act, the greater benefit would apply. In the George Brown case the Union argued, as here, a period of vacation time was improperly included within the period of notice of termination and the vacation time should be excluded from the notice provision under The Employment Standards Act. It was noted in that award that "even if the vacation periods which the grievors enjoyed were deducted from the period of notice, the length of notice would in each case exceed the statutory requirement...". The Board found that the provisions of The Employment Standards Act did not apply. The Presgrove decision deals with termination of employment and not layoff, with a claim for a pro-rated holiday settlement. The facts are distinguishable.from the present case and the conclusion reached in that matter is not persuasive in this issue. The Board prefers the reasoning and results in the Conestoga and George Brown awards which have direct relevance to the issue in the present grievance. We find that the employees in this case have been given a greater benefit than provided by the Act which pursuant to Section 4(2) does not therefore apply and the College was not in breach thereof. The Board further finds that the collective agreement does not provide the right to the employees claimed in this grievance to a vacation period exclusive of the notice of layoff. The parties did not impose that condition in Article 8.04(f) and the Board cannot alter or amend the collective agreement as set out in Article ll.03(d) which would be necessary to connect the rights given by the parties under Article 8.04(f) with the terms of Article 8.02(b). We find those terms, which includes a separate provision for vacation entitlement, cannot be imputed in the terms of Article 8.04 which deals with a separate and distinct issue of layoff from that of discharge. Having regard to the submissio~ of the parties and for the foregoing reasons, the Board finds that the College has not violated the provisions of the collective agreement by requiring the employees to take vacation for the period as directed by it in its memo dated April 15, 1988 during the period of notice of layoff. As there has not been a violation of the collective agreement established by the Union, it follows that the grievance must be dismissed and we so award. DATED AT OAKVILLE THIS i~( DAY OF JUNE, 1989. H.D. BROWN, CHAIRMAN RON COCHRANE, UNION NOMINEE D... GU IL , C LLEGE NOMINEE -2- The outstanding issue relating to the grievance is the Grievor's entitlement to interest. The Grievor claims an interest entitlement from April 1, 1991 to July 18, 1991, the date that he received payment. He also makes a claims for interest from July 19, 1991 to the date of this award, being interest on the interest. The parties agreed that the Board was to remain seized of the method of calculating interest. The College asserts a different interpretation of the Letter of Understanding. It also asserts that the activity of the Joint Task Force amounts to an estoppel. It called evidence from Maureen Callahan who is employed '~."';~Seneca College where she is currently Dean of Communication Arts. She was one of the Management members of the Joint Task Force. Ms. Callahan testified that the Task Force was not given a specific date, as part of their mandate, as to when payments were to be made to eligible candidates for the Buyout. Programme. The Task Force was not prepared to issue any monies until the various payment options were fully investigated. Part of this investigation involved the requisition of tas advice so the recipients of the monies would be fully aware of the tax implications associated with Buyout options. Finally, the Union representative of the Task Force Mr. Montgomery, suggested that the whole question of buyouts not be raised until after the end of the academic year, that being April 30, 1991. The Task Force, in carrying out its mandate, did not contemplate the accrual of interest, or payment of interest on the funds payable to eligible candidates of the programme. It was argued on behalf of the Union that interest is capable of