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HomeMy WebLinkAboutHoward 91-09-27 IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO COUNCIL OF REGENTS FOR COLLEGES OF APPLIED ARTS & TECHNOLOGY (HUMBER COLLEGE) (EMPLOYER) -AND- ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR SUPPORT STAFF EMPLOYEES) (UNION) AND IN THE MATTER OF A GRIEVANCE OF MS. DOROTHY HOWARD (GRIEVOR) MEMBERS OF THE BOARD: C. Gordon Simmons, Chairperson R. Gallivan, Employer Nominee W. Walsh, Union Nominee APPEARANCES FOR THE EMPLOYER: Ms. Dale Hewat, Counsel Mr. Carl Eriksen, Dean, Applied & Creative Arts Mr. Stephen Bodsworth, Chair, Applied & Creative Arts APPEARANCES FOR THE UNION: Mr. Richard Blair, Counsel Ms. Jennifer Webster, Student at Law Mr. Don Stevens, Local President Ms. Dorothy Howard, Grievor Hearings into this matter were held on April 29 and June 11, 1991. There are two grievances before the Board for determination. They read: Unfair treatment and discrimination concering [sic] leave of absent [sic]. Settlement Desired: To be reinstated to griever's [sic] position held at time of the start of prepaid leave of absents [sic]. The first grievance is dated July 20/90. The second grievance is dated Aug.l~21/90 and reads: Wrongful dismissal under Article 15.6.3. And the settlement desired: Return to former position or of one of equal status. Senority [sic] & benifits [sic] under the collective agreement be met & restored. The grievor's services were terminated when she failed to return to work on her scheduled work date following a leave of absence. The Union claims that the termination was a violation of the Collective Agreement for reasons that will appear later in the award. The alleged discrimination grievance is intertwined with the termination grievance and they will be dealt with together. Fortunately, the facts are not seriously in dispute. The grievor's seniority spans over approximately fourteen years. There is no dispute that her service has been exemplary and there are no prior discipline matters on her file. The grievor applied for a prepaid leave of absence which was to commence August 7, 1989, and to conclude on August 7, 1990. This request was granted. This was the third such leave of absence request that had been made and had been granted and we learned that the grievor's husband is a carpenter by trade who had built a boat in the seventies. It was their custom to travel to Florida and Bahamas, etc. during these periods of leave of absence. Sometime during the month of April, 1990, the grievor and her husband entertained their son and daughter-in-law on the boat in the Bahamas for a week or so. During this period of time a discussion arose about the possibility of the four of them visiting England during the summer months in 1990. Upon the grievor's return to Toronto on June 15, 1990, further discussions about travelling to England were held. The son informed his parents that he had tentatively booked to travel on August 25 and to return September 5. The grievor indicated that that period of time was a busy one for her at the college. Nevertheless, she visited the college on June 19 where she met Mr.l~Stephen Bodsworth, Chair, Applied and Creative Arts Division. After listening to her request for a leave from August 25 to September 5 and after considering the Employer's needs, Mr.l~Bodsworth concluded that he had to decline her request because he was of the view that the Employer's needs were greater than hers. He said that August is a critical month for the college and this was especially so in 1990. During the 1989/90 academic year the college had encountered a faculty strike in the Fall of 1989 which ultimately extended the academic year one month through May, 1990. Other reasons why he felt he could not grant her request were that it was just before the start-up of a new academic year. There were also new and returning students, some with their parents, appearing at the office during August making various enquiries. In addition, there was the preparation and printing of course outlines. Also, the office received many phone calls during the month of August from the public concerning upcoming evening courses. Another reason why he had to decline the request was due to the fact that vacations had been arranged in the Spring of 1990 with the understanding that the grievor would be returning to work on August 7. Finally, the grievor's replacement, Ms. Sked, had informed him on a couple of occasions that she was looking for full-time employment and that he ought not to count on her remaining after August 7. The grievor went immediately to a telephone and phoned her son to not book the tickets for England. This was approximately 10:30 a.m. and she thought that the tickets would not have been purchased as yet. However, her son informed her that his wife had committed each one of the four individuals which required a deposit of $400 each. The grievor then saw Mr. Bodsworth again and offered to work during the month of July to get caught up and as well she would work overtime without pay to get caught up. However, Mr. Bodsworth was not receptive to this suggestion. He stated that with other employees on vacation he would be looking to the grievor, with her experience, to handle the job requirements as outlined above during August. Later, the son contacted the grievor to inform her that it would be possible to change the travel dates from August 25 to August 20. Again, however, Mr. Bodsworth was not receptive to this suggestion. So, the four would-be travellers went to the travel agency and they were successful in changing the travel dates to August 5 and returning on August 17 which would mean that the grievor would be back at work on August 20. The grievor telephoned Mr. Bodsworth on July 3 to explain the entire situation but Mr.l~Bodsworth stated that he still wanted her back on August 7. The grievor then said that she had made her decision and that she had to go. Mr. Bodsworth then asked her if she would come in to the office to sign a form that she would not be coming back on August 7. She was upset and informed Mr. Bodsworth that if he did not want her back in the Applied & Creative Arts Division she would accept a transfer to some other position but wanted to remain an employee of the college and remain on North Campus. The grievor explained that when one takes a leave of absence as she did, it is not necessarily the case that one is assured or guaranteed the same position upon return to active employment. Following this conversation, Mr. Bodsworth had a meeting with Dean Eriksen and informed the Dean what was happening. He outlined to the Dean why he was refusing her request and recommended that the Dean deny her request. Dean Eriksen concurred and told Mr. Bodsworth to inform her of the decision. On July 4, Mr. Bodsworth telephoned the grievor to inform her that he had spoken with Dean Eriksen and that the Dean had agreed with Bodsworth's recommendation and that the decision stood. It was during this phone conversation that the grievor says that she gained the impression that Bodsworth agreed to her having an extension to her leave of absence from August7 through to August 20. Following the July 4 telephone conversation, the grievor was elated and left home for a while to carry out some errands. Upon her return she found a hand-delivered letter in her mailbox from Mr. Bodsworth. Several letters followed between the grievor and Mr. Bodsworth and since we consider them to be important in this matter, they are reproduced below: July 4, 1990 Dear Dorothy, As a result of our telephone conversation of Wednesday, Julyl~4, 1990 ! would like to confirm, in writing, the following: · that the College is not prepared to grant your request to extend your leave of absence to Friday, August 17, 1990, for the reasons ! explained; · that you have elected not to return to your position in the Applied and Creative Arts Division on the date agreed to between yourself and the College; · that you are proposing to return to work on Monday, August 20, 1990; · that you do not expect your position in the Applied and Creative Arts Division to be kept open for you until your return; · that you are not prepared to formally resign (i.e. in writing) from your position at the College at this time; · that you would be prepared to accept a similar position at the College, with a start date of Monday, August 20, 1990; ! believe that ! have captured the key points in our conversation. If you feel that there are any errors or omissions in the above please advise me in writing via courier by July 9, 1990. It is important you understand, however, that by not returning to work on the date agreed, you will have abandoned your position at the College and that we cannot promise you continued employment after that date. Yours sincerely, "Stephen Bodsworth" c.c. Carl Eriksen, Dean, A.C.A. July 6, 1990 Dear Steve: received your letter of July 4, 1990. Your first point states that the College is not prepared to grant me an extended leave to August 17, 1990. ! presume you mean ACA, as you also say ! am to be prepared to start work at the College on August 20, 1990, in a similar position. By similar position, ! take that to mean at a similar salary at the North Campus. As I am still on Leave, any mail delivered to me may not be picked up until ! return home. If anyone wishes to contact me before August 4th, please telephone around 8:30 A.M. or leave a message. As you know ! will be out of the country, from Augustl~4th to August 19th, 1990. ! would appreciate your advising Personnel that ! will be h their office on August 20, 1990. Thank you. Yours sincerely, "Dorothy Howard" cc: Carl Eriksen, Dean, ACA July 6, 1990 Dear Dorothy, In response to your letter of July 6, 1990, I refer you to the last paragraph of my letter dated July 4, 1990. If you do not return to the College by no later than August 7th, you will have abandoned your position and the College will not be obligated to provide you with employment in the A.C.A. Division or anywhere else. Sincerely, "Stephen Bodsworth" c.c. Carl Eriksen, Dean - A.C.A. July 13, 1990 Dear Steve: Further to your letter of July 6th, it appears there is a misunderstanding of the 'agreed' date. ! understood that ACA would not hold my position open for an extra 9 working days, but from our conversation ! also understood that the College would place me in another position, and that ! was to report for work on August 20, 1990. Your letters and phone calls have certainly put me on a roller coaster for the sake of 9 working days (which ! agreed to work during July). ! might point out that the August 7 return date was my choice and not a request of ACA. Because of your ambiguous letter ! have already paid out a lot of money for airplane tickets, rental car, suitcases, clothes, etc. It appears things have changed at the College during the past year and unfortunately ! have been unaware of the changes, but do not feel ! deserve to be caught up in the circumstances as they are now. have placed this matter in the hands of the Union. Yours very truly, "Dorothy Howard" cc: Carl Eriksen, Dean, ACA July 18, 1990 Dear Dorothy: In response to your letter of July 13, 1990 I can only reiterate what my position has been since your initial request to extend your leave of absence was made. Summer work schedules for the A.C.A. office were set sometime ago, in part, around the expectation that you are returning to the College on August 7, 1990. There are still many preparations to be made for the upcoming Fall 1990 term, and it is imperative that staff are here to carry out the necessary tasks. As ! explained, ! am unable to guarantee a suitable temporary replacement for the requested extension to your leave (i.e. August 7-17, 1990). Therefore, ! have to stand by my decision not to grant your request. At no time was a directive given, or inferred, that you could report for work at the College on August 20, 1990 and that an alternate position would be found for you at that time. As you can appreciate, ! am not in the position to issue a directive of that magnitude. The primary purpose of my letters and telephone calls was to (a)l~advise you that you are expected to return to work on August7, 1990; and (b) to caution you that you would be placing your continued employment at the College in jeopardy, should you not return on this date. Yours sincerely, "Stephen Bodsworth" cc: Carl Eriksen, Dean, Applied and Creative Arts Carol Boettcher, Director, Human Resources Howard Payne, President Support Staff Union July 22,1990 Dear Steve: In regard to your letter of July 18 that I found in my mail box today, July 22, ! am advising the following: · The Personnel Dept. state that my one year leave does not in fact expire until Sept. 7, 1990, because of vacation entitlement. · In changing the leaving date of my trip to Aug. 7 after our telephone conversation and your letter of July 4 meant that three other people had to rearrange their schedules and further increased the cost of the fare. · The department already has a person filling my position in my absence and I would be willing to make up lost working time by working two or three evenings a week to catch up. I already have offered to work two weeks before August 4th to carry out your necessary tasks. For the loss of nine working days it would seem to be an unreasonable attitude to terminate my employment with the College as I would not be able to collect Unemployment Insurance payments, which would be a hardship. I was hired by ACA by interview only and the College and the Department have been quite satisfied with my work record, to the extent I was left in charge for two weeks before my leave. I have almost 14 years seniority at the College and I think if you check my record with other departments I have worked for, you will find I am not a frivolous person. I have explained right from the beginning that through no fault of my own I have been caught between a rock and a hard place, with my family on one side and the College on the other. I feel I have been put upon in this regard and as this situation is in the hands of the Union, please direct any further correspondence to Howard Payne. Yours very truly, "Dorothy Howard" cc:Cad Eriksen, Dean, ACA Carol Boettcher, Director, Human Resources Ms. Howard conceded that the first paragraph in her July 22 letter concerning vacation entitlements to September 7 was wrong. She had taken her entitlements when she began her leave in August, 1989. During cross-examination of the grievor she admitted that by the letter of Julyl~18, 1990, from Mr. Bodsworth she had no doubt in her mind that she was expected to be at work on Augustl~7. Indeed, her answer was, "Oh Lordy -- it was practically engraved on my forehead". Her grievance dated July 20 indicating unfair treatment and discrimination was filed during the flurry of letters that was passing between the grievor and Mr. Bodsworth. The grievor informed us that she believes she and her husband went on a boat trip on July 6 and did not return until Julyl~13 and hence the lapse in time between Exhibits 9 and 10. The Employer relies on Article 15.6.3 in the Collective Agreement the relevant portions of which read: 15.6.3 Seniority Lost Seniority shall be lost and employment deemed to be terminated if the employee: ... --overstays a leave of absence unless a reason satisfactory to the College is given; ... -- is absent without prior authorization or approval for five (5) consecutive working days unless reasons satisfactory to the College are subsequently accepted; or ... The Employer relies on the deemed termination and the overstaying of a leave of absence without reason satisfactory to the College as grounds for the termination. It adopts the position that it has not violated the Collective Agreement. The Employer relies on Re Rio Algom Ltd and United Steelworkers (1982), 6 L.A.C. (3d) 164 (O'Shea) in support of its position. In that case, the grievor sought on February 1, 1982, a vacation from February 15 through February 26. He had also requested a "floater holiday" for February 12. On February 5 the grievor in that case was told that the floater holiday was approved but there was no word on the two weeks vacation. The grievor then purchased tickets for a trip sometime between February 5 and February 9. On February 9 he was told the vacation was not approved but he went anyway. In that case, the Collective Agreement stated that if an employee is absent for fourteen consecutive calendar days without permission he would lose seniority "unless he provides a satisfactory reason to the Company". At page 171 arbitrator O'Shea found that there were no special circumstances for the Employer to consider. While the grievor had spent money on travel arrangements he did so before the vacation was approved and, therefore, did so at his own risk. The grievance in that case was dismissed. In Re Guelph Genera/Hospita/ and Canadian Union of Public Employees, Local57 (1982), 5 L.A.C. (3d) 289 (Saltman) the grievor was off ill and had given a variety of reasons for her illness to the Employer. She had initially been granted a leave of absence to attend a Union conference in Windsor in the third week but because of her prior absences the leave of absence was withdrawn. However, she attended nevertheless. She explained that she went to rest and relax and only attended a portion of the conference. The issue, as stated on page 299, to be determined in that case was ought the explanation to have been accepted by the Employer. Arbitrator Saltman stated: The issue to be determined, therefore, is whether the griever's explanation for her absence ought to have been accepted by the hospital. The issue is not whether an arbitrator would have accepted the grievor's explanation. Article l l.05(d) expressly states that the explanation must be satisfactory to the hospital. Therefore, the hospital's decision must stand unless it is found to have been arbitrary, discriminatory or in bad faith. This appears to be the standard of arbitral review which was approved by the Ontario Divisional Court in the case of 'Re United Glass & Ceramic Workers of North America et al. and Libbey-St. Clairlnc. eta? (1981), 25 D.L.R. (3d) 702, 33 O.R. (2d) 760. At page 302 it is pointed out that the griever was given an opportunity to explain the circumstances of her absence before she was terminated. The grievance was dismissed. The Employer in the instant situation advances the position that there were no special circumstances for the Employer to consider to grant the grievor an extension to her leave. It was simply a plan to travel with the family to visit relatives in England. There were no emergencies or other extenuating circumstances. We were, therefore, urged by the Employer to dismiss the grievance. The Union alleges that the leave of absence extension was improperly denied for four reasons. (1) A clear reliance on irrelevant factors; (2) a complete failure to take reasonable steps to determine whether or not the Employer's needs could have been met in the grievor's absence; (3) an over-reliance on the Employer's part to the inconvenience or disruption (of its services); and (4) there existed a reasonable and objective motive with compelling reasons why the leave should have been granted. In support of its position that the Employer considered irrelevant factors, the Union pointed out that Mr. Bodsworth admitted during the giving of his evidence that his decision was based in part on the fact that the grievor was coming off of a one year leave of absence. In Re Loyalist College and Ontario Public Service Employees' Union (1990), 9 L.A.C. (4th) 166 (Kruger) the grievor requested and received a paid leave of absence for one day to attend the birth of his child. Complications arose and his wife had a caesarean section. The shift which the grievor had been granted his paid leave was the Wednesday 10:301~p.m. to 7 a.m. shift. The birth of the child occurred at approximately 1 ll~a.m., Thursday morning. The grievor later went to his in-laws at approximately 2 p.m. or 3 p.m. and then went home. He was exhausted and went to sleep. He missed the Thursday night shift and failed to call in. He was paid for the Wednesday shift but the Employer said it would not compensate him for the Thursday shift. The Employer suggested to the grievor that he ought to have reserved vacation time at some earlier date when he knew his wife was going to be having a baby. The Employer also was influenced by the grievor's failure to report his expected absence for the Thursday shift. Finally, the Employer considered itself bound by longstanding practice of granting one day only for such occurrences. The Board in that case concluded that the Employer had made irrelevant considerations, such as reserving vacation time, in arriving at its decision and, therefore, the grievance succeeded. In the instant case, the Union asserts that Mr. Bodsworth ought not to have considered the fact that the grievor was currently on a leave of absence when she requested the extension to her leave. In our view, there is a distinction between this and the Loyalist case. In that case there were benefits granted in one article of the Collective Agreement as well as other benefits in other articles of the Collective Agreement (ie., leaves of absence and vacations). In the instant situation, we are talking about leaves of absence and what the grievor was seeking was an extension to her present leave of absence. The subject matter, therefore, and the article that is involved is one and the same in the instant situation. The second and third points in the Union's argument may be addressed together. That is, was there a complete failure to take reasonable steps to determine whether or not the Employer's needs could be met in the grievor's absence and was there an over reliance on the Employer's part to the inconvenience or disruption of its services. The evidence revealed that vacations had been scheduled sometime prior to June, 1990. Dean Eriksen testified that a Ms.l~Brown who normally works in the Applied and Creative Arts Division had been off work on a lengthy illness and it was his understanding that she would not be available for August either. Ms. Sked, the grievor's temporary replacement, had informed Mr. Bodsworth that when her contract expired on August 7 he could not count on her to continue working there. As it turned out, Ms. Sked was able to continue replacing the grievor during the month of August. Additionally, Mr.15,Bodsworth's and Dean Eriksen's evidence that the month of August is a critical month in service requirements in the Division was not contradicted. Mr. Eriksen testified that while they got through the month of August they did so but with having received a number of complaints. When mid-July arrived and it was fairly obvious that the grievor was becoming firmer in her resolve to take the extra time off, Messrs. Bodsworth and Eriksen kept hoping that she would change her mind and not place her employment in jeopardy. Furthermore, at this time, Ms. Sked had clearly indicated to Mr.15,Bodsworth that he ought not to rely on her being at work after August 7. We were not told what other steps could have been taken in mid-July to find other replacements for the grievor. We believe that it was reasonable for the Employer to assume that the grievor would change her mind in light of the circumstances that were developing. Therefore, we disagree with the second and third arguments advanced by the Union. Insofar as the fourth argument of the Union is concerned that a compelling reason existed why the leave should have been granted, we recognize the fact that the grievor took steps to keep the Employer informed and she took steps to assist in anyway she could so as to minimize the inconvenience to the Employer. She suggested that she could be available to come in in July to assist in getting caught up in the work and that she would work overtime in August without pay in order to get caught up in the work. We can understand the Employer's reluctance to agree to these offers. If the workload during the month of August is to assist in fielding questions from telephone enquiries as well as students and parents coming into the office and the preparing and printing of course outlines, the nine working days in mid-August would be a time when the staff who had been scheduled to work be present. The work in July would not accommodate this concern and the work from August 20 on while helpful would not meet the Employer's needs as they have been described to us. While we have great sympathy for the grievor's plight we cannot lose sight of the fact that the parties have entered into a bargain in their Collective Agreement setting out certain terms and conditions of employment. The grievor was made acutely aware of what she could expect to happen if she did not return from her leave of absence on August 7. Alternatively, the Union argued that what transpired here was a dismissal and not a termination pursuant to Article 15.6.3. This issue was raised as a result of some evidence that Mr. Eriksen gave. It was his view that the grievor was being defiant in July by first refusing to interpret properly the signals that Mr. Bodsworth was giving. Rather, she was adopting and clinging to a view that Bodsworth had agreed to her extension. In this regard, it was his opinion that she was being defiant. Accordingly, the Union argues that there is an element of discipline here and, therefore, it cannot be a termination of employment under Article 15.6.3 but instead must be pursued under Article 3 (Management Rights) and Article 18 (Complaints/Grievances). The Union submitted Re McKellar General Hospital and Service Employees Union, Local 268 (1981) 30 L.A.C. (2d) 229 (Prichard) in support of its position. At page 238 the following appears: This particular problem appears to have been raised indirectly only twice in the arbitral jurisprudence concerning the distinction between termination and discharge. In Re Int'l Nickel Co. of Canada Ltd and U.S.W., Local 6166 (1971), 4 L.A.C. (2d) 103 (Gallagher), the board of arbitration was required to decide as a preliminary matter whether the employer's decision was a termination for absence or a discharge. Based on the evidence the board concluded that it was a termination in circumstances where the sole matter of concern was the griever's absence for more than 10 days. Similarly, in Steel Co. of Canada Ltd (Swansea Work~), supra, the board of arbitration was required to characterize the employer's decision. In that case, the board found the decision was in substance a termination for being absent for three days even though the employer at one point in the grievance process had described the termination as a discharge for just cause. Both cases, however, are consistent with the proposition that the arbitrator must first characterize the employer's decision as a termination for absence or a discharge and then, and only then, trace out the implications of that decision (the proper characterization) under the collective agreement. That this problem has not arisen more frequently is not surprising. As was stated above, almost all termination clauses contain a built in limitation on their exercise in the form of a minimum period of absence required to trigger the clause. This minimum period ensures that the clause can only be used to respond to substantial absences and the role of an implied limitation such as I have found is accordingly reduced to a secondary status. However, in the rare case of an unlimited clause like art. 14.03(b) the implied limitation is the only check against colourable exercises of the termination provision and thus it assumes a more central role. In the result, I must characterize the Hospital's severing of the griever's employment relationship as either a termination for absence or a discharge. In doing so, I must focus on the employer's predominant motive and concern to determine whether it was the fact of absence itself that led to the decision or some other misconduct. In the former case, the decision is properly characterized as a termination for absence while in the latter it must be treated as a discharge. We must interpretMcKellar (supra) to require more than an element of discipline. It must be the predominant element. If there is an element of discipline in the instant case because of Mr. Eriksen's views that the grievor was defiant, we cannot, taken as a whole, agree that the "Employer's predominant motive and concern" was one of discipline. The Employer throughout informed the grievor that she was expected to return on August 7 and failure to do so would result in abandonment. While one must be cautious in arriving at a conclusion in differentiating between termination and discharge, we believe, based on all of the evidence, that discipline was not a factor in arriving at the decision which was reached in this case. Accordingly, for all of the reasons advanced throughout this decision, the grievance must be and is hereby dismissed. Dated at Kingston, Ontario this 27th day of September , 1991. [--- Unable To Translate Box ---] C. Gordon Simmons Chairperson I concur/dissimt "R. Gallivan"[--- Unable To Translate Box ---] R. Gallivan Employer Nominee I cancar/dissent [--- Unable To Translate Box ---] "W. Walsh" W. Walsh Union Nominee