HomeMy WebLinkAboutStethem 98-01-01 98C518
98C531
99C026
IN THE MATTER OF AN ARBITRATION
BETWEEN
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, for part of that time, 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 determined that it was going to contract out some
shipping/receiving and printing functions. This resulted in three bargaining unit
members losing their jobs. The College's ability to contract out is the subject of a
grievance before another Bom:d of Arbitration.
2. In July of 1998 the College met with the Union as part of the College Employment
Stability process, per article 15.3.5.2, to discuss the placement of the three affected
stall' as a result of the loss of their jobs.
3. One of the three employees who lost their job as a result of the contracting out was
Charlie Purchase (~Purchase"). However, as [a] 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 dated August 5, 1998 (See
tab 1).
4. Purchase bumped the grievor, Jim Stethem (%tethem"), when he bumped into the
day shift, Caretaker B, payband 4 position, although Stethem was red-circled at
payband 5. Stethem in turn was reassigned to a Caretaker A (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 Stethem withdrew his claim against Williams and that the
contracting out issue is before another Bom-d (See tab 4).
Purch ase'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 ~indefinite 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
return to work (See Tab 6).
8. On November 30, 1998 the College was contacted by Purchase who indicated that
he was anxious to return to work but 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 return to 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 therea£ter. 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 a top-up on the basis that he occupies the day
shift, Caretaker B, payband 4 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), payband 2 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. On November 13, 1998 Stethem grieved (98C518) his reassignment effective
November 5, 1998, (See tab 11).
13. On November 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 grieved the 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
pursuant to an Appendix '~D" contract to replace 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 worked 37 ½ hours whereas Stethem worked 40 hours.
The following grievance was filed after the effective date of Mr. Stethem's reassignment and
before the posting of the Caretaker "B" - Appendix "D" - Sick Leave Replacement position.
98c518 - Jim Stethem - November 13, 1998
Improper re-assignment effective on November 5, 1998. Improper application of the bumping
procedure and recall 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 of a 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 recalled to 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
Improper posting of Caretaker positions on November 18 1998. The College has failed to recall an
employee to 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 of the "contracting out"
(98C366) is not before this Board.
At the outset of the 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.
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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 subject to the layoff
process, for any reason, unless and until the procedures contained in Article 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 a£ter the fourteen (14) calendar day
period mentioned in Article 15.2, or such other period as may be agreed by the Local Union and the
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 of the 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 notify the 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.
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 classification provided he/she can
satisfactorily perform the core duties and responsibilities of the
job. If there is no such position then;
to a vacant position in the same payband provided he/she can
satisfactorily perform the core duties and responsibilities of the
job. If there is no such position then;
to the position held by the most junior employee within his/her
same payband provided he/she can satisfactorily perform the
core duties and responsibilities of the job and he/she has
greater seniority. If there is no such position then;
to a vacant position in the payband with a maximum rate one
lower than the employee's own payband provided he/she can
satisfactorily perform the core duties and responsibilities of the
job. If there is no such position then;
to the position held by the most junior employee in the payband
with a maximum rate one lower than the employee's own
payband provided he/she can satisfactorily perform the core
duties and responsibilities of the job 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
satisfactorily perform the core duties and responsibilities of the
job. If no such position is identified the employee shall be laid
off.
(To illustrate how this sequence operates, see the Letter of Understanding
appended to the 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 employee receive 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) calendm: days of notice being provided to the employee. In such case the date
the employee received the 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.
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 staffing and includes vacancies
posted under Article 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 off hereunder who retain recall rights under Article 15 shall be
recalled on the basis of seniority providing he/she can satisfactori/?perform the
core duties and responsibilities of the job 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 layoff if the individual has
twenty-four (24) or more months continuous employment at the
time of layoff.
[Emphasis added]
Recall rights are limited to positions equal to or less than the person's former
payband.
Persons with recall rights will also be entitled to apply for vacancies posted
pursuant to 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 of a temporary vacancy in the
bargaining unit which is expected to be of more than four (4) months' duration, the
College shall post the temporary vacancy so that baygaining 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
unit or hire a temporary employee at its discretion, where a bargaining unit
employee is selected as a temporary replacement the employee will have the right
to return to his/her regular position or its equivalent on the expiration of the
temporary assignment. The first resultant temporary vacancy shall also be posted
in accordance with this clause if it meets the criteria. It is understood that none of
the clauses of Article 17.1 apply to temporary vacancies.
[17.1 ~Job Postings/Promotions" covers vacancies ~in a classification covered by the Agreement"]
APPENDIX D
TEMPORARY EMPLOYEES
1. The terms of this Appendix apply to persons employed on a
casual or temporary basis to replace baygaining unit employees
absent due to vacation, sick leave or leaves of absence. No other
provision of the 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 of the 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 of the term of employment.
5. In addition to the hourly rate of pay, 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 void ab 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 of the 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 fights 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 j ob. Following the posting of the
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 cannot put 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 j ob".
The Employer's refusal to consider the economic and domestic stress of working 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 position until Mr. Purchase was fully able to carry out the duties of the
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. If there 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 of the 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 of the Union:
Re Centennial College and the Ontario Public Service Employees Union (Prentice), (1983),
Unreported (Weatherill)
Re United Electrical Workers Local 512, and Tung-Sol of Canada Ltd. (1964) L.A.C. v 15,
161 (Reville)
Re Blue Line Taxi Co. Ltd. And Retail Wholesale & Department Store Union, Ontario Taxi
Union, Local 1688 (1992) 28 L.A.C. (4th) 280, (Bendel)
Re Municipality of Metropolitan Toronto v. Canadian Union of Public Employees, Local 43,
(1990), 69 D.L.R. (4th)268 O.C.A.,
Re Brampton Hydro Electric Commission and National Automobile, Aerospace and
Agricultural lmplement Workers Union of Canada (CAW-Canada), Local 1285 et al, (1993)
15 O.R. (3d) 773
Re Board of School Trustees of School District 61 (Greater Victoria) and Canadian Union of
Public Employees, Local 382, (1979), 25 L.A.C. (2d) 430 (R.M. Brown)
The College
The Board was referred to the following case:
Re George Brown and the Ontario Public Service Employees Union (1997), Unreported
(Kruger)
Michael Kennedy, counsel for the College, framed the Union's three arguments as follows:
· There was no reason to reassign Mr. Stethem on November 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 of the Collective Agreement.
10
Mr. Kennedy characterized the case as the reassignment of Mr. Stethem, his unhappiness after a
number of reassignments, and the occurrence of a 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
of the 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 of the Union to challenge the terminology since "reassignmenf' 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 questioned the 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 of losing his j ob is inappropriate, rather, he is fully entitled to
go from his original position to the position originally held by Mr. Stethem.
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 out the 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 bona
11
fide and proper reassignments (Mr. Stethem and Mr. Purchase) pursuant to the Collective
Agreement, neither challenged by the Union. Mr. Kennedy noted that as of November 5th, Mr.
Purchase, who is absent due to injury and receiving sick leave pursuant to 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 of that job, 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 fights, Mr. Kennedy
argued the contrary, submitting that Mr. Stethem did not elect to be laid off, and therefore, 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 when there 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 job 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
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 of the Collective
Agreement.
Mr. Kennedy submitted further that management fights cases do not apply in this case, since
12
management fights 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 Re,Iv
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 of Mr. Stethem. It is the Union's position that "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". At that point, Mr. Stethem would go back to the
Caretaker night 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 of Mr. Stethem's rights and
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 of Mr. Stethem's seniority. To do so would be in
contradiction of the principle set out in Tung-Sol, supra, and the Employer's position runs
contrary to that fundamental principle.
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DECISION
It has long been accepted that the fundamental principle respecting the importance of an
employee's seniority rights is set out in Tung-Sol supra at page 162:
Seniority is one of the most important and far-reaching benefits which the trade
union movement has been able to secure for its members by virtue of the collective
bargaining process. An employee's seniority under the terms of a collective
agreement gives rise to such important rights as relief from lay-off, right to recall 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
under the relevant sections of the collective agreement.
In arriving at its decision in this matter, the Board has remained cognizant of the importance of
seniority as an employee benefit.
The situation presented to the Board is that of a senior employee who is entitled to bump into the
position of a more junior employee but who is unable, at the time the bump is scheduled, to
"satisfactorily perform the core duties and responsibilities of the job" 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.
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 and the 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
14
expectation that Mr. Purchase would be able to "satisfactorily perform the core duties and
responsibilities of the j ob" 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 of the job") and its decision to post a temporary position and hire Mr. Chipman, a
non-bargaining unit person, into the position were within the terms of the Collective Agreement
and were appropriate under the circumstances.
If one approaches the issue from the College's point of view, the question is whether or not the
College contravened the Collective Agreement during the process of reassignment and
subsequently. If one examines the issue from the 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 on November 5, 1998, because Mr. Purchase was medically unable to attend at work to
carry out the duties of that or any other position. This was on the first day following the College's
90-day notice to Mr. Stethem pursuant 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
of the College. It has been the practice of the College to schedule layoffs and bumps in concert
with the notice entitlement. However, nothing in this article, or elsewhere in 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. Stethem
proceed on that specific day. (The Board is aware that it would 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 of a bumping
15
employee into a vacant position, and that is, that the senior employee moving into any of the
positions set out in the sequence must be able to "satisfactorily perform the core duties and
responsibilities of the job". The College determined in August 1998 that in its opinion, Mr.
Purchase was able to "satisfactorily perform the core duties and responsibilities of the j ob", 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 of the
job". He was not able to do them on November 5, 1998, was only able to perform a portion of
the core duties and responsibilities of the j ob for a brief period following January 6, 1999, and at
the time of the 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 of performance 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 perform the
core duties and responsibilities of the job". However, in the interval, prior to the consummation
of the 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 and responsibilities of the job". Had he been able to
"satisfactorily perform the core duties and responsibilities of the job" on November 5, 1998, the
day he was to bump in to 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 fights
relative to that position.
In almost all cases, once notice has been given, a bump can be consummated at the end of the 90-
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day notice period. However, certain situations may arise which prevent that consummation taking
place. An employee who has been reassigned to another position 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 j ob" 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 of the reassignment meet the condition for
bumping into the position. The Board has determined that 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 of the job" before he can complete his reassignment into the position
occupied by Mr. Stethem. The fact that he carried out some of the duties of the job with the
assistance of Mr. Chipman, does not, in the opinion of the Board, satisfy the proviso set out in the
Collective Agreement. However, Mr. Purchase's original reassignment can stand, and its
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
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of this 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 of his reinstatement to the position.
Dated at
Helen Finley, Chair
Peter Hetz, College Nominee
Dissents
Dissent to follow
Ed Seymour, Union Nominee
Concurs
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