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HomeMy WebLinkAboutJohn 98-03-01 IN THE MATTER OF AN ARBITRATION BETWEEN SENECA COLLEGE OF APPLIED ARTS AND TECHNOLOGY (the College) THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the Union) INTERIM AWARD BOARD OF ARBITRATION Arthur Kruger - chair Peter Hetz - member Pauline Seville- member APPEARANCES For the Employer - George Vuicic, counsel - Mel Fogel - Jane Wilson - Kim Raymer - John Hodson - Pamela Hendsbee - Jennifer Farrell For the Union - George Richards, counsel - Ken John - Janice Hagen HEARING AT TORONTO, ONTARIO FEBRUARY 4, 1998 -2- At the outset of our hearing, the College took the position that this matter was not arbitrable. The hearing on February 4, 1998 dealt only with this objection and this Award, therefore, is limited to that issue. In order to understand the basis of the College's claim that this matter is not arbitrable, it is necessary to outline some of the events leading up to the grievance before this Board. Fortunately, the parties are in agreement on most of the relevant facts. At the time of the events leading up to this grievance, Mr. John was employed as a Reception Security Clerk in the Women's Residence of the College. In November 1996, the College received written complaints from two residents concerning the behaviour of Mr. John. Both women charged the grievor with sexual harassment. The College has a Policy On Discrimination/Harassment. The complaints were referred to the Centre for Equity and Human Rights, the College agency responsible for the administration of this Policy. Officials of the Centre carried out an investigation in conformity with the Policy. Mr. John was informed of the investigation and provided with copies of the written complaints. He was invited to submit a response to these allegations to the Centre. In the meantime, effective November 26, 1996, Mr. John was placed on paid leave of absence and suspended from his duties pending the outcome of the investigation. The Centre then arranged separate meetings with the complainants and with Mr. John to discuss the complaints. The grievor also submitted a written response to the complaints. In the course of the investigation, nine witnesses were interviewed in addition to the interviews with the complainants and the grievor. Mr. John Hodson an employee of the Centre drew up an Investigative Summary Final Report on the matter in which he summarized the evidence adduced by the investigation and concluded that there was merit in the allegations against Mr. John. This Report concludes with seven recommendations for resolving the matter which included a ten day disciplinary suspension for the grievor and his transfer from the Women's residence "to other duties in a comparable position". -3- An official warning would also be included in his personnel file. Under the Policy, the Acting Director could decide whether to attempt a mediated settlement or to submit the matter to a Board of Inquiry to adjudicate the matter. In this case, Ms. Raymer decided to pursue another avenue. She convened a meeting on December 17, 1996 with Mr. John and Ms. Janice Hagen, President of the Union Local, to offer Mr. John terms of a settlement to resolve the matter without further action. At the meeting, she read to Mr. John and Ms. Hagen Mr. Hodson's lengthy Report excluding his recommendations. She invited Mr. John and Ms. Hagen to take a break and discuss the matter privately before she proceeded further. They availed themselves of her offer. On their return she read the remainder of the Report which consisted of proposed recommendations for action by the College to resolve the matter. At this point Ms. Hagen concluded that the grievor was so upset, it would be best to leave. She and Mr. John put on their coats and began to leave when Ms. Raymer called them back so that Mr. John could sign a document. She then read to them a letter she had written dated December 17, 1996 addressed to Mr. John. That letter was filed as Exhibit 3 with this Board and it is appended to this Award for easy reference. Of particular interest are the four penalties to be imposed on the grievor outlined on page 1 of Exhibit 3, and the final two paragraphs on page 2 of that Exhibit. The final paragraph is worth citing here in full: "By signing a copy of this letter, you agree with the settlement and this will officially dispose of the complaint." All witnesses agreed that during the meeting, Ms. Raymer gave the grievor the opportunity to meet privately with Ms. Hagen and he refused. At this point there is some conflict in the evidence. Ms. Raymer told the Board that Ms. Hagen asked what the significance of Mr. John's signing the letter would be and Ms. Raymer replied it meant he understood and accepted it. Ms. Hagen said that she asked Ms. Raymer whether signing Exhibit 3 meant only acknowledging its contents or whether it signified agreement on Mr. John's part. She told the Board that Ms. Raymer replied that it meant nothing more than Mr. John read and understood the contents of -4- Exhibit 3. Mr. John testified that Ms. Raymer said he was to sign it only as acknowledgment that he was aware of its contents. Ms. Hagen told the Board that she advised the grievor that signing this letter meant nothing more that acknowledging awareness of its contents. Mr. John signed Exhibit 3 and he and Ms. Hagen left the meeting. On January 3, 1997, Ms. Raymer wrote the grievor to give him "official notification of suspension, official notification of transfer and official written warning." This letter provided details of the period when he would serve his suspension and the location of his new assignment on return from his suspension. It was this letter that led Mr. John to file his grievance on January 6, 1997. There are a few other facts that should be recorded. In cross-examination, Ms. Raymer testified that, in her opinion, the grievor's agreement to sign Exhibit 3 did not prevent him from using the grievance procedure when he was disciplined. Ms. Hagen told the Board she was elected to the position of Local President about six months prior to the December 17, 1996 meeting. This was her first experience in assisting a bargaining unit member in dealing with a matter of discipline and her first involvement in the grievance procedure. The only documents she had ever signed at the College were PDFs and performance evaluations. In signing these documents one only acknowledged receipt of them and did not indicate agreement or disagreement with their contents. She assumed that Mr. John's signature on Exhibit 3 had the same effect and on that basis she advised him to sign Exhibit 3. Ms. Raymer told the Board that while Mr. Hodson had discussed with the complainants the terms of settlement that would satisfy them, at the time of the December 17, 1996 meeting she was unaware of their views of the matter. The College's Position The College argues that this matter was resolved when Ms. Raymer and Mr. John signed Exhibit 3. Ms. Raymer read Exhibit 3 to the grievor and his Union representative. She offered them the opportunity to read it themselves and discuss it privately before Mr. John signed it. Exhibit 3 clearly outlines the discipline to be imposed on the grievor if this settlement is -5- concluded. The last sentence could not be clearer in confirming that Mr. John's signature signified his agreement with the proposed settlement as a final disposition of this complaint. That surely disposes of the matter and confirms his agreement to waive his right to grieve. It is true that the Union did not sign Exhibit 3. However, Ms. Hagen, the Local Union President was present throughout the meeting and, by her own testimony, she agreed to Mr. John' s signing Exhibit 3. In any case, as articles 18.7 and 18.7.3 make clear, this agreement is unusual in giving the right to an aggrieved employee, rather than to the Union, the right to decide whether to launch a grievance and to proceed to arbitration. In signing Exhibit 3, Mr. John voluntarily gave up his right to grieve or to take this matter to arbitration. Accordingly, the grievance should be dismissed because the matter is not arbitrable. The Union's Position The Union argued that the right of an employee to grieve discipline is the most important right Unions have secured under collective agreements. It is not a right that an employee can bargain away without explicit consent. Yet this is what the College contends happened in this case. If employees were permitted to make such arrangements without Union consent, the collective agreement would be undermined. In any case, the Union contends, there was no such arrangement here between Mr. John and the College. Mr. John had no intent to waive his right to grieve when he signed Exhibit 3, and was not aware that the College would try to deny him this right. Even Ms. Raymer, the College's representative at the December 17, 1996 meeting, told the Board that in her view Mr. John did not surrender his right to grieve the discipline when he signed Exhibit 3. If there was an agreement between the parties to this effect on December 17, 1996, surely both parties had to be aware of it. Yet no one at the meeting was of the opinion that Mr. John and the College had reached such an agreement. Finally the Union pointed to the last paragraph of the College's Policy on Discrimination/Harassment which clearly states that this Policy "does not preclude any individual from seeking other options available to him/her such as -6- ...the Collective Agreements". In this matter, it is agreed that the College acted under this Policy and the Policy itself protects the right to grieve under the collective agreement. The Award The Board has carefully considered the evidence and argument presented to us in this matter. There are two important principles in conflict here. On the one hand, we have the right of an employee to grieve discipline - a fundamental right in any collective agreement. On the other hand, we have the important principal of resolving grievances by agreement without resort to arbitration whenever possible. In this matter, the College sought to resolve the dispute by the agreement it drafted and filed with this Board as Exhibit 3. Ms. Raymer read this document to Mr. John in the presence of a Union representative, Ms. Hagen. She provided Mr. John and Ms. Hagen the opportunity to read the document and discuss it privately. Mr. John signed the document which concluded with the sentence "By signing a copy of this letter, you agree with the settlement and this will officially dispose of the complaint." We can understand the College's position that this disposed of the matter in accordance with the terms outlined in Exhibit 3 and that the grievor had voluntarily surrendered his right to grieve this matter. However, as we have noted, the right to grieve discipline is a fundamental fight of employees under a collective agreement. At the time Mr. John signed Exhibit 3, he was upset and not aware of the consequences that might flow from his consent to sign the document. In his confused state, he assumed that his signature on the document only meant he understood its contents but did not preclude his grieving the matter. His Union advisor confirmed this view of the matter in urging him to sign Exhibit 3 and end the meeting. It is important to note that even the College's representative at this meeting, Ms. Kim Raymer, was of the view that after signing Exhibit 3, Mr. John could still file a grievance and proceed to arbitration under article 18.7 of the agreement. It -7- is true that she was not questioned about this at the December 17, 1996 meeting and did not mislead the grievor. Nonetheless, if she held this opinion at the time, it is not surprising that Mr. John might also share this view. We find that on December 19, 1996 when Mr. John signed Exhibit 3, he was not aware of the words at the end of the document indicating that this signified his acceptance of the contents of Exhibit 3. More important, he had no intention of surrendering his right to grieve and proceed to arbitration on this matter after he was officially informed of the discipline. In fact very soon after the letter of discipline was sent to him on January 3, he filed his grievance. For an employee to agree to a settlement and surrender his right to grieve a matter, the consequences of signing a settlement, including the loss of his right to grieve must be stated in writing explicitly. The employer must ensure that the employee understands that agreement means the end of the matter including the loss of the right to grieve. As we have already noted, in the case before us, Mr. John was so upset that he did not read Exhibit 3 himself nor understand that his signature indicated more than awareness of what the College proposed. Nor was he told that his signature meant he would lose the right to grieve the matter. For all these reasons, the preliminary objection to our hearing this matter is dismissed. The Board will therefore reconvene to hear the merits of this dispute on March 23, 1998. -8- Dated at Toronto, Ontario this Day of March, 1998. Arthur Kruger I concur/dissent Peter Hetz concur/dissent Pauline Seville