HomeMy WebLinkAboutStethem 99-09-27 98C518
98C531
99C026
IN THE MATTER OF AN ARBITRATION L0c~421
CAAT (S)
Loyalist College
(College)
and
Ontario Public Service Employees Union
(Union)
(Support/Grievor Stethem)
(OPSEU # 98C531)
BEFORE: Helen Finley Chair
Peter Hetz College Nominee
Ed Seymour Union Nominee
APPEARANCES: For the College:
Michael Kennedy Counsel
Jamata Kaplan Counsel
Dave Butler Vice President Human Resources
John Rigsby Vice President Finance
For the Union:
Gavin Leeb Grievance Officer
Gord Wright President Local 421
Jim Stethem Grievor
A hearing in the above matter was held in Belleville on May 6, 1999
98C518
98C531
99C026
DECISION
The facts in this case are not in dispute. It is common ground that the Grievor, Jim Stethem,
began employment with Loyalist College on June 8, 1986. His work with the College has been
in the position of Caretaker and he was paid, forpart ofthattime, in Payband 5. In 1996 Mr.
Stethem was bumped for the first time, and he in turn, bumped into a Caretaker B Payband 4
position, although he was red-circled at Payband 5.
In advance of the May 6, 1999 hearing, the parties developed the following "Statement of
Agreed Facts" and at the hearing determined that it was not necessary to call evidence. The
Board appreciates the effort taken by the parties to come to this agreement in advance.
STATEMENT OF AGREED FACTS
The Reassignments
1. In the spring Of 1998, the College determinedthat it was going to contract out
some shipping/receiving and printing functions. This resulted inthree
bargaining unitmembers losing theirjobs. The College's ability to contract out
is the subject of a grievance before another Board of Arbitration.
2. In July of 1998 the College met with the Union as part ofthe College
Employment Stability process, perarticle 15.3.5.2, to discuss the placement of
the three affected staff as a result of the loss oftheir jobs.
3. One of the three employees who losttheirjob as aresult ofthe contracting out
was Charlie Purchase ("Purchase"). However, as [al result of his seniority he
was reassigned to a day shift, Caretaker B, payband 4 position effective
November 5, 1998. He was advised of his reassignment in a letter datedAugust
5,1998 (Seetab 1).
4. Purchase bumped the grievor, Jim Stethem ("Stethem"), when he bumped into
the day shift, CaretakerB, payband 4 position, although Stethemwas red-circled
at payband 5. Stethem in turn was reassigned to a CaretakerA (nights),
payband 2 position effective November 5, 1998. He was advised of his
reassignment in a letter dated August 5, 1998 (See tab 2).
5. Stethem grieved(98C366) his reassignment on August 19, 1998 (See tab 3).
He challenged the contracting out and alleged that he could perform the work of
a Technician "A" named Peter Williams. The grievance is currently adjourned
sine die on the basis that Stethemwithdrew his claim against Williams and that
the contracting out issue is before another Board (See tab 4).
Purchase's Injury
6. On September 1, 1998, Purchase became absent from work as a result of a
shoulder injury for which he claimed WSIB benefits. On September 17, 1998
the College was advised by his Physician that it was "indefmite at this time
when he is to return to work" (See tab 5).
7. Purchase was offered light duties by the College on October 22, 1998 and
sought confirmation from his physician on November 17, 1998 regarding his
ability to returnto work (See Tab 6).
8. OnNovember 30, 1998 the College was contacted by Purchase who indicated
that he was anxious to return to workbut his Doctor wouldn't let him since the
light duties were too general. He however was going to see his Doctor again on
Friday (See tab 7).
9. On December 9, 1998, the College agreed in consultation with WSIB and Mr.
Purchase's doctor, that he could retumto work on modified duties (See tab 8).
This was confirmed by his physician in a letter dated January 6, 1999 (See tab
9). Purchase returned to work thereafter. WSIB refused to provide benefits to
Purchase after December 9, 1998 since there was available modified work at no
wage loss (See tab 10).
10. The WSIB provides Purchase with atop-up on the basis that he occupies the day
shift, CaretakerB, payband4 position effective November 5, 1998 (See tab 15).
Stethem 's Claim
10. In November, Gord Wright, the local president approached John Rigsby, Vice-
President, Finance and Corporate services, regarding Stethem not being
reassigned to a Caretaker A (nights), payband2 position effective November 5,
1998, as a result of Purchase being absent due to injury. The parties were
unable to reach an agreement on the issue.
12. OnNovember 13, 1998 Stethem grieved(98C5 18) his reassignment effective
November 5, 1998, (See tab 11).
13. OnNovember 18, 1998, the College posted an [sic] to Appendix "D" position
for a sick leave replacement for Purchase (See tab 12).
14. Stethem applied for the position and subsequently withdrew his application (See
tab 13).
15. Stethem grievedthe posting on December 1, 1998 (99C026) as did the union
(See tab 14).
Don Chipman
16. Don Chipman worked 40 hrs/week from November 30 to December 11, 1998
pursuantto an Appendix "D" contract toreplace Purchase. Since December 14,
1998 he has worked 24 hours per week picking up those assignments that
Purchase cannot perform plus other duties as assigned (See tab 16).
17. Purchase is now off work permanently due to surgery. His date of return [is]
unknown although a lengthy absence is anticipated.
18. Purchase worked37 '/2 hours whereas Stethem worked 40 hours.
The following grievance was filed afterthe effective date ofMr. Stethem's reassignment and
before the posting ofthe Caretaker "B" Appendix "D" Sick Leave Replacement position.
98C518 Jim Stethem November 13, 1998
Improper re-assignment effectiveon November 5, 1998. Improper application oflhe bumping
procedure andrecall rights. The College is in violation of Articles 15.4.3, 15.4.4, 15.6.1 and any
other Article that may apply.
The following grievances were filed following the November 18th posting ora temporary
replacement for the position from which Mr. Stethem had been reassigned on August 5th,
effective November 5th:
99C026 Jim Stethem December 1, 1998
Improper posting of Caretaker"B" position on November 18 1998. Failure to be recalledto my
former position. The College has violated Articles 17.3 15.6.1.2 Appendix D letter and any other
article that may apply.
98C531 Union December 1, 1998
Improperposting of Caretaker positions on November 18 1998. The College has failed to recall
an employeeto a vacant position and improperly applied the Appendix D Letter. The College has
violated Articles 17.3.1, 15.6, 15.3.3., 1.2, 15.4.3 Appendix D Letter, and any other Article that
may apply.
The parties have agreed to consolidate the three grievances set out above. The issue of Mr.
Stethem's reassignment grieved on August 19, 1998 in the context ofthe "contracting out"
(98C366) is not before this Board.
At the outset ofthe hearing, Gavin Leeb, for the Union, informed the Board that he had given
third-party notice to two employees, Charles Purchase, a full-time regular employee of Loyalist
College, and Don Chipman, a temporary employee working as a sick-leave replacement and
accommodation assistant. Neither Mr. Purchase nor Mr. Chipman attended the hearing.
The following articles of the Collective Agreement are relevant to the issues before the Board:
LAYOFF/RECALL PROCESS
15.1 General
An employee who has completed the probationary period shall not be laid off or subjectto the
layoffprocess, for any reason, unless and until the procedures contained inArticle 15 have been
applied in sequence.
15.3.5 Notice to Employees
15.3.5.1 Written Notice of Layoff
If, after consideration by the President of the recommendations, the College determines that
layoffs are still necessary, employees may receive written notice of layoff after the fourteen (14)
calendar day period mentioned inArticle 15.2, or such other period as may be agreed by the
Local Union andthe College.
15.3.5.2 Notice Period
No employee shall be laid off without receiving ninety (90) calendar days written notification
from the College except in circumstances beyond the reasonable control ofthe College.
15.4 Layoff Procedure
When a College decides that circumstances require a reduction in personnel in any position within
a classification the following provisions shall apply:
15.4.1 Probationary Employees
Probationary employees performing the work in question shall be released. The
College shall notifythe Union of Probationary employees released in these
circumstances.
15.4.2 Post Probationary Employees
Where qualifications of employees in the affected position who have completed
their probationary period are relatively equal as to that position, their layoff
shall be on the basis of seniority.
4
15.4.3 Bumping Procedure
The employee so identified shall be assigned by the College to the first position
determined in accordance with the following sequence:
to a vacant position in their classificationprovided he/she can
sati,~factorilyperj'brm the core duties andresponsibilities of
the job. If there is no such position then;
to a vacant position in the same paybandprovidedhe/she can
sati,~factorilyperj~brm the core duties andresponsibilities of
thejob. If there is no suchposition then;
to the position held by the most junior employee within
his/her samepaybandprovided he/she can sati,~factorily
peri'btm the core duties andresponsibilities of thejob and
he/she has greater seniority. Ifthere is no such position then;
to a vacant position in the payband witha maximum rate one
lower than the employee's own paybandprovided he/she can
sati,~factorily perfbrm the core duties and responsibilities of
thejob. If there is no such position then;
to the position held by the most junior employee in the
paybandwith a maximum rate one lower than the employee's
own paybandprovided he/she can sati,¥actorilyperfbrm the
core duties and responsibilities ofthejob and he/she has
greater seniority. If there is no such position then;
the provisions of the last two sections shall be repeated until
all paybands have been reviewed in descending order of
maximum rate and either a vacant position or a position held
by a more junior employee is identified and the employee
affected can sati,¥actorily per,[brm the core duties and
responsibilities ofthejob. If no such position is identified the
employee shall be laid off.
(To illustrate how this sequence operates, see the Letter of Understanding
appended tothe Collective Agreement, dated September 23, 1997.)
[Emphasis added]
15.4.4 Layoff or Reassignment
15.4.4.1 Notice
The employee shall be provided written notice of layoff or reassignment.
Should the employeereceive notice of reassignment, the employee may elect in
writing, to be laid off in lieu of such reassignment, provided such election is
made within five (5) calendar days of notice being providedto the employee. In
such case the date the employee receivedthe notice of reassignment shall be
deemed to be the date of notice of layoff. The College shall provide a further
letter to the employee confirming layoff.
5
15.6 Recall
For the purposes of this Article, a vacancy is any position within a classification
or an atypical position in which the College requires staffmg and includes
vacancies posted underArticle 17.1 for which a final selection and confirmation
of employment has not been made by the College.
15.6.1 Recall by Seniority
Persons laid offhereunderwho retain recall rights under Article 15 shall be
recalled on the basis of seniority providingheZ~he can sati,~factorilyperfbrm the
core duties andresponsibilities ofthejob without training, and provided such
vacancy occurs:
within twelve (12) months of his/her layoff if the individual has less
than twenty-four (24) months continuous employment at the time of
layoff or
within eighteen (18) months of his/her layoffifthe individual
has twenty-four (24) or more months continuous employment
at the time of layoff.
[Emphasis added]
Recallrights are limitedto positions equal to or less than the person's former
payband.
Persons with recall rights will also be entitled to apply for vacancies posted
pursuantto Articles 17.1 and 17.1.1.
17.3 Temporary Assignments
17.3.1 Temporary Postings
Where the College has at least four (4) weeks' notice ora temporary vacancy in
the bargaining unit which is expected to be ofmore than four (4) months'
duration, the College shall postthe temporary vacancy so that bargaining unit
employees can indicate their desire to be selected for such a vacancy.
Recognizing that the College reserves the right to select a person in the
bargaining unitor hire a temporary employee at its discretion, where a
bargaining unit employee is selected as a temporary replacementthe employee
will have the right to return to his/her regular position or its equivalent on the
expiration of the temporary assigmnent. The first resultant temporary vacancy
shall also be posted in accordance with this clause if it meets the criteria. It is
understood that none ofthe clauses ofArticle 17.1 apply to temporary
vacancies.
[17.1 "Job Postings/Promotions" covers vacancies "in a classification covered by the Agreement"]
6
APPENDIX D
TEMPORARY EMPLOYEES
1. The terms of'this Appendix applyto persons employed on a
casual ortemporary basis to replace bargaining unit
employees absent due to vacation, sick leave or leaves of
absence. No other provision ofthe Collective Agreement
shall apply to such persons unless otherwise stated in this
Appendix.
2. The rate to be paid to such an employee shall be the
appropriate rate applicable to the classification ofthe replaced
employee, subject to progression steps applicable to the
replacing employee, where appropriate.
3. The replacing employee shall be subject to the deduction and
remittance of Union dues, as provided in Article 5.4 Of'the
Agreement.
4. The Union shall be notified at the commencement of
employment, and upon expiry ofthe term of employment.
5. In addition tothe hourly rate ofpay, the employee shall
receive an additional five percent (5%) in lieu of all fringe
benefits, including vacation and holiday pay.
6. The employee may be released by the College before the
termination date of any term of employment, for replacement
need changes or operational requirements.
ARGUMENT
The Union
Mr. Leeb set out 3 arguments:
· That the Grievor was not, in fact, bumped and the Employer's failure to follow the
Collective Agreement has resulted in the Grievor' s move to the night shift and the
Employer's action, that is Mr. Purchase's bump into Mr. Stethem's position,
should be declared voidab initio, (invalid from the outset), and should be
reversed;
· That the Employer acted unreasonably and arbitrarily in moving the Grievor from
his Caretaker C (days/payband 4) position given that the employee moving into
that position was, from mid-October, off indefinitely for medical reasons;
· That the Employer, in refusing to stop the bump until Mr. Purchase returned to
work full-time in the Caretaker C position, placed administrative convenience
above a reasonable interpretation ofthe Collective Agreement.
Mr. Leeb submitted that Mr. Stethem was not transferred pursuant to Article 15, as his August 5,
1998 notice purports and that the mandatory procedure was not followed. Mr. Stethem's
seniority rights were negated and undermined when he ended up in a less desirable night job and
when the contract employee is in the better paid day job. Following the posting ofthe
Caretaker "B" (APPENDIX "D") Sick Leave Replacement, and Mr. Stethem's application
for the position, the College was willing to have Mr. Stethem in the position, had he been willing
to pay for his own benefits and forego the accrual of seniority, and the College cannot, according
to Mr. Leeb, now say that they cannotput him in that position. Mr. Purchase's injury-related
absence began more than two months before the bump became effective, not two days, and
given that length of time, there is no reason why the Grievor "could not have gone back to the
job". The Employer's refusal to consider the economic and domestic stress ofworking nights
on an employee with a young family when it was not necessary to visit those consequences on
the Grievor, combined with the lack of evidence of any hardship such as costs and organizational
difficulties, demonstrates the arbitrary nature of the Employer's actions in not allowing Mr.
Stethem to remain in his positionuntil Mr. Purchase was fully able to carry out the duties ofthe
position of Caretaker C. According to Mr. Leeb, the Employer had no reason for its actions, and
this lack of reason, falls into the category of arbitrariness. He did, however, suggest that one
reason for the Employer's stance, may have been its desire to move Mr. Stethem from the
Payband 5 where he was red circled. Mr. Leeb argued that it would not have been necessary for
the Employer to recommence the ninety-day notice period, rather, it could have allowed Mr.
Stethem to remain in the Caretaker C position until the return of Mr. Purchase.
The Board, Mr. Leeb submitted, should interpret the Collective Agreement in Mr. Stethem's
favour and encompass his situation under the heading of"recall rights". Failure to include Mr.
Stethem' s situation under "recall rights" deprives the Grievor of all the seniority protection and
rights to which he is entitled. Ifthere are administrative inconveniences and/or costs to be borne,
these must be assumed by the Employer; the situation is not one which calls for co-
determination, that is, the College paying one part ofthe cost, and the Union paying the other.
There is no reason, Mr. Leeb concluded, why Mr. Stethem should be suffering the consequences
of Mr. Purchase's injury.
The Board was referred to the following cases respecting the argument ofthe Union:
Re Centennial College andthe Ontario Public Service Employees Union (Prentice) . (1983),
Unreported (Weatherill)
Re UnitedElectrical Workers Local 512, and Tung-Sol of Canada Ltd. (1964) L.A.C. v 15,
161 (Reville)
Re BlueLine Taxi Co. Ltd. AndRetail, Wholesale & Department Store Union, Ontario Taxi
Union, local ~1~gI~2)28 L.A.C. (4th) 280, (Bendel)
Re Municipality of Metropolitan Toronto v. Canadian Union of Public Employees, Local43,
(1990), 69 D.L.R. (4th)268 O.C.A.,
ReBrampton Hydro Electric Commission andNationalAutomobile, Aerospace and
Agricultural lmplement Workers Union of Canada (CA W-Canada), Local1285 et a.t, (1993)
15 O.R. (3d) 773
Re Board oJSchool Trustees oJSchool District 61 (Greater Victoria) and Canadian Union of
Public Employees, Local382, (1979), 25 L.A.C. (2d)430 (R.M. Brown)
The College
The Board was referred to the following case:
Re GeorgeBrown andthe Ontario Public Service Employees Union (1997), Unreported
(Kruger)
9
Michael Kennedy, counsel for the College, framed the Union's three arguments as follows:
· There was no reason to reassign Mr. Stethem onNovember 5th, since worked
remained;
· A transfer occurred and this was a violation of Management Rights;
· As of November 5th, there was a right of recall for Mr. Stethem, pursuant to the
language ofthe Collective Agreement.
Mr. Kennedy characterized the case as the reassignment of Mr. Stethem, his unhappiness after a
number of reassignments, and the occurrence ora vacancy when someone is placed on sick
leave. He submitted that in dealing with the sick leave when it arose, the College acted in
complete accordance with the Collective Agreement. It is not, he submitted, a violation of Mr.
Stethem's seniority, as alleged by the Union. It is rather, the Union asking the Board to ignore
the language ofthe Collective Agreement and the seniority rights of Mr. Purchase. Mr. Kennedy
submitted that, based on the Statement of Agreed Facts, the only conclusion that the Board can
come to is that the Employer acted in complete accordance with the Collective Agreement.
Mr. Kennedy reviewed the documentation and noted the consistent use of the word
"reassignment" to describe the process which had taken place, and submitted that it is
inappropriate ofthe Union to challenge the terminology since "reassignment" is the term used
throughout the Statement of Agreed Facts. Since Mr. Stethem withdrew his claim to Peter
Williams' job, there can be no suggestion that Mr. Stethem questionedthe validity in terms of
which job he ended up in, rather, there is a completely bonafide reassignment which was not
challenged by the Union. The only challenge of the Union respecting this related to the
contracting out itself. Nor, Mr. Kennedy argued, is there any evidence or suggestion that Mr.
Purchase's reassignment as a result oflosing his job is inappropriate, rather, he is fully entitled to
go from his original position to the position originally held by Mr. Stethem.
10
Mr. Kennedy then reviewed the relevant language of Article 15, noting that Article 15.4.4.1
treats "reassignment" and "layoff' as two separate concepts. When an employee is laid off, he
submitted, that employee is outthe door subject to whatever seniority rights the Collective
Agreement provides.
Mr. Kennedy summarized the situation prior to November 5th as one in which there are two
bonafide and proper reassignments (Mr. Stethem and Mr. Purchase) pursuant to the Collective
Agreement, neither challengedby the Union. Mr. Kennedy notedthat as of November 5th, Mr.
Purchase, who is absent due to injury and receiving sick leave pursuantto his entitlement under
the Collective Agreement, goes into Mr. Stethem' s job and Mr. Stethem goes to the Caretaker
(night) position. He submitted that though Mr. Purchase is on sick leave, his seniority rights do
not evaporate and he does not lose his job. Indeed, the job is now Mr. Purchase's, and if the
Employer needs someone to fill in to do the work ofthatjob, it seeks an individual to fill the
temporary vacancy. According to Mr. Kennedy, the Collective Agreement speaks in very clear
terms as to the rights an employer has in these circumstances and how an employer should act,
and in this instance, this Employer was within its rights when it posted for someone to fill the
Payband 4 position of Mr. Purchase.
With respect to the Union's submission that Mr. Stethem should have recall rights, Mr. Kennedy
argued the contrary, submitting that Mr. Stethem did not elect to be laid off, andtherefore, he
does not, under the Collective Agreement, have recall rights. Further, recall rights in Article
15.6.1, only apply if there is a full-time vacancy, and not whenthere is a temporary sick-leave
replacement vacancy.
The College can, according to Mr. Kennedy, hire temporary employees from the bargaining
unit, at its discretion, under Article 17.3.1, and, given that the College did post the vacancy, Mr.
Stethem had the opportunity of keeping his day j ob and had he not withdrawn his application, the
College could have hired him to fill this vacancy, and had it done so, he would have retained his
right to return to the bargaining unit at the end of the temporary assignment. This opportunity
11
was not, however, available to those who have recall rights, since the rights held by them do not
include the right to fill the position on a temporary basis. Mr. Kennedy stated that it was his
view, that Mr. Stethem did not have recall rights, according to the language ofthe Collective
Agreement.
Mr. Kennedy submitted further that management rights cases do not apply in this case, since
management rights are not an issue here.
In concluding his argument, Mr. Kennedy stated that the Collective Agreement does not provide
for the retention of Mr. Stethem in his position following his reassignment and a repeat of the
reassignment process at a later time. The College had, according to Mr. Kennedy, scrupulously
followed the comprehensive process set out for reassignment situations.
Union' s Reply
Mr. Leeb objected to Mr. Kennedy's reliance on the Statement of Agreed Facts to conclude that
the Union agreed that this situation was a "reassignment". He explained that the extent of the
Union's agreement is that the Employer has characterized the situation at hand as a
"reassignment". The case, he stated, is about Mr. Purchase's reassignment to Mr. Stethem' s
position and Mr. Stethem's assignment to the night shift and whether that was done in
accordance with the Collective Agreement. The Union is not, he explained, taking anything
from Mr. Purchase, and no prejudice would be suffered by Mr. Purchase. The Union is saying,
Mr. Leeb stated, that Mr. Purchase did not bump Mr. Stethem on November 5, 1998 and cause
the reassignment ofMr. Stethem. It is the Union's positionthat "someone has to do it not some
paper shuffling" and that Mr. Stethem should have stayed in his day job pursuant to his seniority
rights and due to the fact that he was not bumped out of it until such time as Mr. Purchase would
have returned to work, following his surgery and convalescence, on a permanent basis, and
would have been able to do the "whole job". Atthat point, Mr. Stethem would go back to the
Caretakernight position. The Union is not disputing the Employer's right to hire on a temporary
basis but it takes the position that this should not be in contravention ofMr. Stethem' s rights and
12
income protection. It suggests that a temporary employee should have been hired for Mr.
Stethem's position. It is unreasonable, according to Mr. Leeb, that the Employer did not
balance the rights of Mr. Stethem and the Employer. The Collective Agreement should not be
interpreted to achieve the undermining ofMr. Stethem's seniority. To do so would be in
contradiction ofthe principle set out in Tung-So!, supra, and the Employer's position runs
contrary to that fundamental principle.
DECISION
It has long been accepted that the fundamental principle respecting the importance of an
employee's seniority rights is set out in Tung-Solsupra atpage 162:
Seniority is one ofthe most important and far-reaching benefits which the trade
unionmovement has been able to secure for its members by virtue ofihe
collective bargaining process. An employee's seniority underthe terms of a
collective agreement gives rise to such importantrights as relief from lay-off,
right torecall to employment, vacations and vacation pay, and pension rights, to
name only a few. It follows, therefore, that an employee's seniority should only
be affected by very clear language in the collective agreement concerned and
that arbitrators should construe the collective agreement with the utmost
strictness wherever it is contended that an employee's seniority has been
forfeited, truncated or abridged underthe relevant sections of the collective
agreement.
In arriving at its decision in this matter, the Board has remained cognizant ofthe importance of
seniority as an employee benefit.
The situation presentedto the Board is that ora senior employee who is entitled to bump into the
position ora more junior employee but who is unable, at the time the bump is scheduled, to
"satisfactorily perform the core duties and responsibilities ofthejob" occupied by the junior
employee, but who is, nevertheless, assigned to the position, leaving the junior employee
assigned to a considerably less desirable position, and the College filling the position in question
under the Appendix D temporary replacement provision.
13
Mr. Leeb has stressed that the Union is not seeking to keep Mr. Purchase from exercising his
bumping rights to the position to which he was reassigned. However, the Union is asking this
Board to declare the bump of Mr. Purchase and the reassignment of Mr. Stethem to the Caretaker
A (nights) position invalid or to put the bump andthe reassignment, or at least Mr. Stethem's
reassignment on hold, until Mr. Purchase is able to "satisfactorily perform the core duties and
responsibilities of the job". The College maintains that it correctly followed the layoff/bumping
procedure and that, even though Mr. Purchase's medical prognosis was indefinite, it had the
expectationthat Mr. Purchase would be able to "satisfactorily perform the core duties and
responsibilities of the job" at, and subsequent to, the time the reassignment was scheduled
(November 5, 1998). The College takes the position that its reassignment and moving of Mr.
Stethem (in spite of Mr. Purchase being unable to "satisfactorily perform the core duties and
responsibilities ofthejob") and its decision to post a temporary position and hire Mr. Chipman,
a non-bargaining unit person, into the position were within the terms ofthe Collective
Agreement and were appropriate underthe circumstances.
If one approaches the issue from the College's point ofview, the question is whetheror not the
College contravened the Collective Agreement during the process ofreassignment and
subsequently. If one examines the issue fromthe Union's perspective, the issue is whether or
not Mr. Stethem's seniority rights have been compromised by the College reassigning him from
his position when the more senior employee, Mr. Purchase, was unable to "satisfactorily
perform the core duties and responsibilities of the job".
It was not possible for the actual physical move of Mr. Purchase into Mr. Stethem' s position to
occur onNovember 5, 1998, because Mr. Purchase was medically unable to attend at workto
carry out the duties ofthat or any other position. This was on the first day following the
College's 90-day notice to Mr. Stethempursuant to Article 15.3.5.2 supra. An employee being
laid off has an entitlement to that notice, unless circumstances arise which are beyond the
reasonable control ofthe College. It has been the practice ofthe College to schedule layoffs and
bumps in concert withthe notice entitlement. However, nothing in this article, or elsewhere in
14
the Collective Agreement states that the bump must occur on day 91, only that it cannot occur
before day 91, except in circumstances beyond the reasonable control of the College. There was
no requirement in the Collective Agreement that the bump of Mr. Purchase and the reassignment
of Mr. Stethemproceed on that specific day. (The Board is aware that itwould have been more
orderly and convenient had that been possible.)
However, Article 15.4.3 supra does place a condition on the College's assignment ora bumping
employee into a vacant position, and that is, that the senior employee moving into any ofthe
positions set out in the sequence must be able to "satisfactorily perform the core duties and
responsibilities ofthejob". The College determined in August 1998 that in its opinion, Mr.
Purchase was able to "satisfactorily perform the core duties and responsibilities of the job", that
is, of the job occupied by Mr. Stethem. The assessment made at that time is not challenged.
However, the evidence presented in the Statement of Agreed Facts demonstrates that Mr.
Purchase has not been able to "satisfactorily perform the core duties and responsibilities ofthe
job". He was not able to do them on November 5, 1998, was only able to perform aportion of
the core duties and responsibilities ofthejob for a briefperiod following January 6, 1999, and at
the time ofthe hearing was "off work permanently due to surgery" and "His date of return [was]
unknown although a lengthy absence [was] anticipated."
The language chosen by the parties in Article 15.4.3 specifies a requirement ofperformance of
the core duties and responsibilities rather than the skill and ability to carry them out. Mr.
Purchase is the senior employee relative to Mr. Stethem. His right to bump into Mr. Stethem's
position is not at issue. Nor was the College's original assessment of his being able to
"satisfactorily performthe core duties and responsibilities ofthejob". However, in the interval,
prior to the consummation ofthe bump on November 5, 1998, an event occurred which resulted
in Mr. Purchase not being able to "satisfactorily perform the core duties and responsibilities of
the job", and of his not being able to do so at the point in time when the College had scheduled
the bumping. This brings into question his right to assume Mr. Stethem's position at a time
when he is unable to "satisfactorily perform the core duties andresponsibilities of the job". Had
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he been able to "satisfactorily perform the core duties and responsibilities oflhejob" on
November 5, 1998, the day he was to bump into the position, and been injured subsequent to his
bumping into the position and "satisfactorily perform-ing]the core duties and responsibilities of
the job", then the bump would have been consummated and Mr. Stethem would no longer have
had any rights relative to that position.
In almost all cases, once notice has been given, a bump can be consummated at the end ofthe 90-
day notice period. However, certain situations may arise which prevent that consummation
taking place. An employee who has been reassigned to anotherposition may retire, resign, or die
during the notice period. Practicality would dictate that the reassignment and the notice be
rescinded under such circumstances since the employee being reassigned into the position will
never occupy that position. The result of this action would leave the employee who had been
given notice of reassignment from the position still in that position. There are, in other words,
circumstances under which it is not possible for the bump to occur on day 91. Mr. Purchase was
prevented from being able to consummate the bump on the scheduled day due to his injury and
resulting medical condition.
It is the conclusion of the Board that the College's original assessment of Mr. Purchase's ability
to "satisfactorily perform the core duties and requirements of the job" was correct at the time it
was undertaken. However, since that time, Mr. Purchase's injury and resulting medical
condition have, at least temporarily, rendered the original assessment invalid.
In this case, Mr. Purchase could not at the time ofthe reassignment meet the condition for
bumping into the position. The Board has determinedthat Mr. Purchase must be able to meet the
stipulation set out in Article 15.4.3, that is he must be able to "satisfactorily perform the core
duties and responsibilities ofthejob" before he can complete his reassignment into the position
occupied by Mr. Stethem. The factthat he carried out some ofthe duties ofthejob with the
assistance of Mr. Chipman, does not, in the opinion ofthe Board, satisfy the proviso set out in
the Collective Agreement. However, Mr. Purchase's original reassignment can stand, and its
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implementation be delayed. The reassignment does not have to take place on the 91st day.
Provided that Mr. Stethem has had his 90-day notice, which he already has, it can take place at
the point in time that Mr. Purchase regains his ability to "satisfactorily perform the core duties
and responsibilities of the job." It follows, that the temporary call for a replacement for Mr.
Purchase should not have been posted.
In the result, the Board orders the College to reinstate Mr. Stethem within three weeks of the date
ofthis decision to the position that he held prior to November 5, 1998, and to reimburse him for
the wage differential for the period he was not in the position based on the hours he has worked
between November 5, 1998, and the date ofhis reinstatement to the position.
Dated at ,..~'/~
Helen F'inley, Chair
Dissents
Dissent to follow
Ed Seymour, Union Nominee
Concurs
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