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HomeMy WebLinkAboutIco 05-02-23 IN THE MATTER OF AN ARBITRATION BETWEEN HUMBER COLLEGE (the "Em ployer") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (#356302) (the "Union") - and - IN THE MATTER OF A GRIEVANCE OF MS ANNIE ICO (the "Grievor") BEFORE: C. Gordon Simmons, Chairperson Robert Gallivan, Employer Nominee Ron Davidson, Union Nominee APPEARANCES ON BEHALF OF THE EMPLOYER: Ms Brenda Bowlby, Counsel and others APPEARANCES ON BEHALF OF THE UNION: Mr. Don Martin, Representative and others Hearings into this matter were held in Toronto, Ontario on March 23, November 1, 2004, and conference call January 28, 2005. 2 The grievor is a long-term and valued employee. She has been an employee since January 1982. She had been employed as an Admissions Officer in the Registrar's Office since 1998 and was responsible, along with ether Admissiens Officers, for dealing with the admission of students into the cellege's various programs. The griever had performed duties involving admissions of international students from 1993 to 1998. In 2003 the college posted an available position entitled "Admissions Officer - International". The griever applied unsuccessfully for the position. The successful candidate had less seniority than the griever. The college explained that one of the requirements for the posted position included recruitment of international students. The position performed by the griever between 1993 and 1998 had not involved recruitment. Following the awarding of the position to the successful candidate and the filing of the grievance, the college underwent a number of changes as a result for the need to adjust to new legislation which has given the college the authority to grant degrees in certain programs. Further, the college continued to develop its operations in recruiting international students, driven in part by the increasing number of places which the college is permitted to offer to international students and, in part, by the competition of other colleges and universities. Changes also took place in the Registrar's Office with the retirement of the Assistant Registrar. As a result, it was determined the newly created position of Admissions Officer - International would be eliminated and the international duties would be moved back into the Admissions Officer position. This change would permit additional Admissions Officers to become involved in international recruitment and would permit more flexibility in the use of Admissions Officers. It should be noted there is no 3 difference in the rate of pay between Admissions Officer and Admissions Officer - International. Both positions were in Pay Band 11. Nor does the union allege bad faith in the decision of the college to eliminate the position of Admissions Officer - International Accordingly, the employer asserts that the Admissions Officer - International position has now been eliminated and the incumbent has been moved back into an Admissions Officer position. The Admissions Officer position description has been revised to incorporate all of the job duties of the Admissions Officer - International. Both the griever and the incumbent signed the revised Position Description Form (PDF) of "Admissions Officer" on October 22, 2004. The employer argues the only relief the griever seeks is she be appointed to the position of Admissions Officer - International. The employer submits that because the position no longer exists and because the griever has made no claim she suffered any financial consequences, there is no further issue to be litigated between the parties. The issue, therefore, having become moot the grievance ought to be dismissed. In support of its position the college relies on a number of prior decisions. They are: Borowski v. Attorney-General of Canada, [ 1989] 231 S.C.C. (4th) 57 D. L. R.; Fanshawe College and OPSEU Local 109 (Crawford) (1996), unreported (Kollor); George Brown College and Ontario Public Service Employees Union (Louza) (1999), unroportod (Dovlin); Re }Velland County Roman Catholic Separate School Board and Ontario English Catholic Teachers Association (1992), 30 L.A.C. (4th), 353 (Brunner); and Fanshawe College and Ontario Public Service Employees Union (Morris) (1989), unreported (Swan). 4 The union advances several arguments in favour of proceeding to the merits of the grievance. It argues, contrary to the position adopted by the college, that the position of Admissions Officer - International continues to exist. It asserts that notwithstanding the college's claim the position no longer exists the position continues to be performed as it had prior to the alteration of the job description. Further, no announcement of any changes to their required duties has been made to the Admissions Officers. The union argues the employer has simply reverted to the earlier practice of having one Admissions Officer, without a separate PDF, specialize in and perform the duties of the Admissions Officer - International position. The union alleges that its suspicions and the griever's suspicions are revived as the griever and the incumbent were the first among the Admissions Officers to sign the revised PDFs on October 22, 2004. The union further maintains that whether or not the position of Admissions Officer - International continues to exist a remedy for the griever, in the form of a declaration, does exist and is of importance to the griever. The damage claimed by the griever to be remedied by her request in addition to being placed in the position has from the beginning been damage to her dignity, self-esteem, reputation, and mental well-being The union also argues the grievance is not moot because whether or not the position of Adm issiens Officer - International continues to exist, this panel has the power to alter the requested remedy and provide financial compensation to the griever. In support of its position the union relies on ReMississaugaHydro-Electric Commission and lnternational Brotherhood of Electrical Workers, Local 636 (1992), 28 L.A.C. (4th) 177; Re Tenaquip Ltd. and Teamsters Canada, Loc. 419 (Vandervende) (2002), 112 L.A.C. (4th) 60; and 5 Ontario Public Service Employees Union and Seneca College of Applied Arts & Technology and Pamela CooperPicher, RobertJ. Ga#ivan and Sherril Murray, Ont. Div. Gt., NeY. 1, 2004. The board has carefully reviewed the submissions of the parties. No one testified in these proceedings. During the first day the parties devoted their attention to seeking a settlement of the matter in dispute. They were unsuccessful. Upon reconvening on November 1,2004 the board was informed the position of Admissions Officer - International had been eliminated and the employer requested the grievance be dismissed because the issue had become moot. The union acknowledged during the hearing that there had been no bad faith involved in the elimination of the position. The union has expressed certain suspicions about bad faith in its subsequent written submissions. The board agrees with the employer's response that it is too late to resile from its acknowledgement during the hearing that there had been no bad faith present in this matter. Once it is accepted, as we do, the position of Admissions Officer- International has been eliminated then the matter has become moot and ought not be proceeded with further. The board appreciates the dilemma this may cause the griever. The employer says she is a valued employee. We agree. Indeed, we understand her determination in seeking to have her grievance proceed on its merits to a final conclusion. It is conceivable her grievance could fail. That is not, however, her uppermost concern. She appears to be willing to take that risk. We sympathize with any frustration and perhaps anger in not being able to have her "day in court" and "to say her piece". However, from what we have heard it is not necessary for her to prove she is a valued employee. She is. Her employer states -6- she is a valued employee. Had this matter proceeded on the merits she may very well have succeeded. However, the position has been abolished. She seeks to be placed in that position. The remedy she seeks in her grievance is impossible to grant. The grievance has become moot and is dismissed. The board expresses its appreciation to both counsel who advanced their respective client's positions in a professional and efficient manner. 7 Dated at Kingston, Ontario, this 23rd day of February, 2005. C. Gordon Simmons Chairperson Robert Ga#ivan I concur/dissont Robert Gallivan Employer Nominee Ron Davidson I concur/dissont Ron Davidson Union Nominee