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HomeMy WebLinkAboutErchook 02-02-25 IN THE MATTER OF AN ARBITRATION BETWEEN SAULT COLLEGE OF APPLIED ARTS & TECHNOLOGY (the "Employer") - and- ONTARIO PUBLIC SERVICE EMPLOYEES UNION [01C154] (the "Union") AND IN THE MATTER OF A GRIEVANCE OF ANN ERECHOOK (the "Grievor") BEFORE: C. Gordon Simmons, Chairperson Mr. David Cameletti, Employer Nominee Mr. John McManus, Union Nominee APPEARANCES ON BEHALF OF THE EMPLOYER: Ms Victoria R. Chiappetta, Counsel Ms Rhonda Wright, Director, Human Resources Ms Pat Story, Director, Health & Safety APPEARANCES ON BEHALF OF THE UNION: Mr. Dan Martin, Grievance Officer A hearing into this matter was held in Sault Ste. Marie, Ontario on October 11, 2001. -2- The grievor claims a violation of the collective agreement occurred when she was laid off without being provided bumping fights. The employer maintains she waived her right to bump and denies any violation of the collective agreement. The grievor seeks to be made whole whereas the employer seeks to have the grievance dismissed. The parties entered an Agreed Statement of Facts which reads (ex. 1): AGREED STATEMENT of FACTS between OPSEU and Sault College in the grievance of Ann Erechook dated Jan 19, 2001 1. Ms. Erechook's (the "Grievor") full time hiring date with Sault College of Applied Arts & Technology (the "College") was December 16th, 1991. 2. Ms. Erechook has been a secretary for thirty years. 3. Ms. Erechook began doing contract work as a secretary for the Continuing Education program with Sault College on an occasional basis in 1987. 4. Ms. Erechook began working permanently as a secretary for the College in Nov. 1988. 5. During her years with the College Ms. Erechook has worked as a secretary for the Dean of Arts and Sciences for one year and as secretary to the Job Connect Program for one year prior to beginning the position of Secretary B in Health Services, with a pay Band of 7, which she occupied in 2000. 6. The Health Services Department of the College is staffed by a director and two support staff positions. The two support staff positions are Nurse A and Secretary B. Nurse A is Dora Burzese. Her responsibilities include assisting students with health problems, immunizations, etc. The Grievor occupies the position of Secretary B. Her responsibilities include receiving students, inputting student data, etc. The Director is responsible amongst other things, for Occupational Health & Safety issues and Workplace Safety and Insurance issues. 7. In comparison to the rest of the year, there is significantly less work in the Health Centre during July and August. 8. The College is not required under any legislation to maintain a Health Centre or a nuse [sic] position. 9. In or about April 10, 2000, the President of the College attended a meeting of the Employment Stability cpmmittee to speak on planned support staff reductions (Tab I in' book of documents). The Minutes of Tab I reflect his statement that the College was facing a $2.8 million deficit. This was an accumulated deficit and the College had nothing to offset used reserves. 10. Given the financial constraints, a plan for support staff reductions was distributed and reviewed (Tab 2 in documents). 11. Among the staff support reductions proposed, two were positions in Health Services. The Nurse A position was to be reduced from a 10 month position to a 9 month position. The Secretary B position was to be reduced from a 12 month position to an 11 month position. 12. Official notice that the College was reducing hours of certain support staff positions was given by memorandum dated April 10, 2000 (Tab 2). 13. At the request of the Union, the grievor was presented with three choices (Tab 4). 14. The Grievor, on May 8, 2000, chose #2 (Tab 4). Relying on their Agreed Statement of Facts the parties decided it would not be necessary to call additional supporting evidence. However, during the course of these proceedings it was acknowledged the change from the 12 month work schedule to 11 months would occur approximately 11 months after the choice selection was made by the grievor. It is agreed the issue before the board is a narrow one. The union claims the grievor was laid off for one month and was entitled to exercise her bumping rights pursuant to art. 15.4.3 which reads (ex. 2, tab 13): -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 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 oven payband provided he/she can satisfactorily perform the core duties and responsibilities of the job and he/she has greater seniority;, - 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. Article 15.4.4.1 is also relevant and reads (ex. 2, tab 13): 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) calendar 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. Rounding out the background to this matter is the reference in the Agreed Statement of Facts to the three choices given to the grievor which is relied on by the employer in support of its position that the grievance ought to be dismissed. The -5- choices are contained in a memorandum to the grievor dated April 20, 2000. It reads (ex. 2, tab 4): MEMORANDUM TO: Anne Erechook DATE: April 28 2000 The College regrets that, due to the financial position of college [sic], the position ycu occupy as a Sectary [sic] B in Health Services has been reduced to 11 mon.'.hs per year. The options available to you within the lay-off procedures of the Collective Agreement for Support Staff Employees are as follows: 1. You may elect to be reassigned to another full-time position, which is twelve months per year. The most junior employee in the classification of Secretary B occupies the position of Secretary to the Registrar. 2. You may elect to be reassigned to the position of Secretary B, Health Services with a reduced work period of 11 months. The college wil/ consider assigning you to other available work, if any, in lieu of a one- month layoff if you so desire. 3. You may elect lay-off in lieu of accepting the reassignments outlined above. Should you elect lay-off in lieu of reassignment, you will be eligible for severance pay equivalent to one week of pay for each completed year of service with the College. Should you wish to waive your fight to recall, severance pay can be processed immediately following your lay-off date. Should you wish to retain your recall fights, you may defer receiving your severance pay until the end of your recall period which is 18 months following your lay-off date. Should you elect lay-off, you will receive 90 calendar days' notice. You may elect to have your vacation scheduled in addition to your notice period or receive a lump sum vacation payment. We regret ~.his action has become necessary. Please contact Rhonda Wright at Extension 694 if you have any questions. Please indicate the Option you are electing in the space provided below and sign and return on copy of thig memorandum to your supervisor and one copy to Human Resource Services by the close of business on Monday, May 8, 2000. G.E. McGuire P. Story G.E. McGu/re P. Story President Director, Health Services & Athletics c: R. W~'ight, G. Grummett D. St. Pierre -6- t have read the Options outlined above and elect Option Ann Erechook May 8/2000 Anne Erechook Date The union made the following submissions: the grievor was laid off for one month as set out in the Agreed Statement of Facts. The g~evor was presented with three choices and she chose #2. She liked her work and wanted to remain in her position. So she elected to remain where she was and to take the one month layoff. She was encouraged in her choice in that the employer would consider assigning her to other available work in lieu of the one month layoff, if she so desired. So the grievor was encouraged to remain in her position. The actual layoff would not take place for another 11 months and chances were she would not have to take a layoff at all. But the union pointed out no other available work was found and the grievor was forced to take a one month layoff. When a layoffis to occur the employee has certain rights provided in the collective agreement. She may elect to bump a more junior employee providing she has the requisite skills and ability to perform the work. The grievor was denied the opportunity to bump which was in violation of the collective agreement thereby entitling the grievor to damages for the breach. The employer's submission was very succinct and to the point. By accepting the 11 month choice, being Option 2, the grievor effectively waived any bumping rights she may have had under the collective agreement. By accepting a la. yoff of one month she -7- accepted its terms. That is, she chose to remain in her position with a one month reduction. She is bound by her choice. As alluded to earlier, the layoff was scheduled to occur 11 months following the choice selection. This came out during the course of the submissions of the parties. The employer relied on two prior arbitration decisions in support of its submissions. These are In Re Fanshawe College attd OPSEU, unreported (M. Picher, ch., B. Gallivan & J. McManus), September 23, 1993 (Ford grievance); and, In Re George Brown College and OPSEU, unreported (A. Kruger, ch., R. St. Onge & S. Murray), March 4, 1998 (Benoit grievance). In Fanshawe the grievor received notification of layoff from her 12 month position. Her attempt to bump into the position of Project Field Coordinator failed and she was therefore left with having to bump into one of two positions of an Admission Clerk in the Office of the Registrar. Both incumbents in the Admission Clerk position were junior to the grievor. However, the most junior employee held a nine month Admission Clerk position whereas the other employee held the twelve month position. The grievor claimed she ought to have been allowed to bump the employee who had the twelve month position and not the employee who held the nine month position. In that case the union argued in the alternative that at the end of the nine month period, the grievor ought to be allowed to bump into the twelve month position. Counsel for the employer argued art. 15 makes no distmction between twelve month positions and nine month positions which has been accepted by the parties for a long period of time. Also, the employer argued there were employees senior to the grievor who held nine month -8- positions. To accept the union's argument would be to create two seniority lists. The board accepted the fact there existed a number of nine month positions which ceased at the end of term only to be revived at the commencement of the next term. It could not be said there was a "reduction in personnel" to activate the layoff provisions in that set of circumstances. Furthermore, the collective agreement stipulated the person being bumped in the department had to be the most junior employee in that department. In Fanshawe that meant the employee to be bumped had to be the one who held the nine month position. The grievance was dismissed. In George Brown, supra, the grievor had held a 12 month position until it became redundant in September 1995. Under art. 15.4.3 she was reassigned to the position of Computerized Note taker, in the same payband she had previously held, and bumped Ms Wendy Smith, the most junior of the three employees in that position. The union in that case pursued an argument that had not been raised in F~nshawe which was only employees who were initially hired into less than 12 month positions had to accept layoffs up to three months without bumping. The board rejected this argument and followed Fanshawe in dismissing the grievance. The situation before the instant board is distinguishable from both Fanshawe and George Brown in at least one important respect. In both of those cases the grievors had exercised their bumping rights provided in art. 15 of the collective agreement. It is true that both grievors sought to put different spins on the parameters of their rights in bumping but nevertheless were given the right to bump. In the instant case the grievor claims she was not given the opportunity to exercise her bumping rights at all whereas -9- the employer maintains the grievor accepted the one month layoff when she chose Option 2. Further, the employer submits there was no reduction in personnel so as to trigger art. 15.4 and the grievance ought to be dismissed. There is no doubt the grievor was presented with three choices. Option 1 gave her the opportunity to be assigned to another 12 month position. This would have triggered her bumping rights under art. 15. Option 3 gave her the choice of layoff in lieu of accepting reassigrnr, ent to other positions. Had she elected this option she would, in all likelihood, have been deemed to have waived any bumping rights she might have had and would have been rightfl~lly laid off. Indeed, this option also provides her with the option to waive recall rights. By choosing Option 2 the employer submits the grievor likewise waived any bumping rights she might otherwise have possessed. According to the employer Option 2 presented the grievor with the oppornmity of rema~nJr~g where she presently worked for 11 months at which time she would be laid off t~nless, of course, she could have been assigned to other available work at that time. The board is unable to agree with the employer's position. What Option 2 offered was an opportunity to remain where she was presently employed with a measure of encouragement that she might not have to be laid off at the end of 11 months. By stating the college would consider assigning her to other available work, if any, in lieu of the one month layoff could, it seems fair to assume, be taken by the grievor as meaning she might not have to be laid off at all and could remain where she enjoyed her work for the -10- 11 months in a year. But such was not to be the case. At the end of the 11 month period there was no other available work and the grievor was laid off. Can it be said, given these circumstances, the grievor waived her fight to bump pursuant to art. 157 As stated earlier, Fattshawe and George Brow~t both stand for the proposition the grievors in those cases could exercise their rights to bump but could not exercise their fights a second time. In the instant case the grievor has not been given the right to bump in the optiOn she chose. The right to bump is clearly set out in Option 1 in that she would be assigned the most junior classification of Secretary B in the position of secretary to the Registrar. Similarly, Option 3 is clear. It states that she could elect layoff "in lieu of accepting the reassignments outlined above." Option 3 goes on to point out what she may expect should she elect that choice. As stated, it even contemplates the waiving of recall fights should the grievor so choose. It is apparent the college had art. 15 in mind when it drafted its choices. By clearly setting out what would result if she adopted Options 1 and 3, Option 2 leaves the issue open. In order for the college position to prevail it would have had to have added words to the effect that "by making this choice you waive any fight to exercise bumping rights pursuant to art. 15." Had the employer done so and had the grievor accepted that option, she would have been hard pressed to successfully now argue she retained her right to bump at the end of the 11 month period. Conversely, had Option 2 stated that by selecting this option she waived her bumping fights by doing so may well have prompted her to. make another choice. It has often been stated, to the point it is trite, that seniority rights are considered by unions and members to be one of the most cherished benefits available -Il- through collective bargaining. Usually they are not given up lightly and in order to insist upon having an employee give up such rights there must be a clear and unequivocal communication and understanding that such is to be the result. In the instant case there can be no doubt the employer was clearly communicating such intentions with respect to Options 1 and 3. By informing the grievor she could exercise her bumping rights in Option 1 and by referring to being laid off in Option 3 and foregoing the reassignment as suggested above (meaning Option 1), indicates the employer had art. 15 in mind at the time it prepared the options. But it is not so clear with Option 2 for two reasons. One, the option holds out a measure of hope that no layoff will occur (which we understand would be what the grievor hoped for) but more importantly is the second reason which is devoid of any reference to a waiver of her bumping rights unlike Options I and 3. The maximum unius est exclusio alterius (the inclusion of one is the exclusion of another) is applicable. The grievor was entitled to exercise her bumping rights when she received notice that the college would not be reassigning her to other available work in lieu of layoff. Accordingly, the grievance succeeds. The grievor is entitled to be compensated for the period she was required to be on layoff. The board refers the matter back to the parties for determination of the actual amount of damages but f~it~ng agreement the board retains jurisdiction to complete its award concerning a final resolution of the grievance. The board also retains jurisdiction to deal with any difficulties that may arise with the implementation of this award. - 12- Dated at Kingston, Ontario this 25th day of February, 2002. C. Gordon Simmons Chairperson Dissent Attached I concur/dissent David Cameletti Employer Nominee "John McManus" I concur/dissent John McManus Union Nominee - 13- DISSENT OF COLLEGE NOMINEE I have had an opportunity to review the award of the Chairperson and must respectfully dissent from the decision made therein. My reasoning is based on the fact that the prior decisions in Fanshawe College and George Brown College which are cited in his reasons established very clear precedents which apply to the factual situation of this ~m'ievance. There is no basis for differentiating this grievance from those long-established award. Mr. Picher's award in Fanshawe College was quite comprehensive in its application to the situation at hand. Attention is drawn to the reasoning on the bottom of page 20 of the award and in particular to his observation that the language of Article 15.4 containing the bumping procedure only applies to the reduction of personnel and not to the reduction of hours, days, or weeks. Therefore, it is my view that the bumping procedure would not apply to the situation that Ms. Erechook found herself to be in and that the grievance should be dismissed. In addition, reference should be made to the written submissions made in the George Brown case which were replicated on pages 11 to 13 of the award by Mr. Kruger. The Union attempted to argue that the term "reduction in -14- Page Two personnel" in Article 15.4 is the same as a reduction in hours. This was not accepted. The same applies here. In addition, the George Brown decision is on all fours with the present grievance. The factual circumstances are the same, and Mr. Kruger found at the bottom of page 14 of his award that the language in the Letter of Understanding was ambiguous with respect to the interpretation urged by the Union. This applies not only to that case but to this one as well. The interpretation urged by the Union there and here was that only employees initially hired into less than twelve month positions and not employees bumping into such positions must accept layoffs of up to three months without bumping rights. As mentioned, this interpretation was rejected in the George Brown award and should be rejected here. Where language is ambiguous, the onus is on the party seeking to rely on that language to show that its interpretation is clear and the one to be preferred. In my respectful view, the Union has not come close to discharging that onus. Finally, the Chairperson has suggested that this grievance can be distinguished from the other decisions on the basis that Ms. Erechook was not advised of her giving up her right to bump. It is my view that this is not a baSis for distinguishing -15- Page Three the present grievance from the prior awards. The attention of the Board is drawn to the College's written submissions on page 5 of the George Brown case. There, the grievor specifically reserved her right to grieve while accepting a nine month position. However, College counsel pointed out in her argument that the "grievance must find support in the collective agreement in order to be successful. No such support for the right to bump again at the end of the first nine months can be found in the support collective agreement." The Board's ultimate ruling accepted this argument. The same reasoning applies to this grievance. Whether or not it can be said that Ms. Erechook was told of her right to grieve when she accepted the option that she did misses the point, with the greatest respect. She would not have any right to bump in any event as the procedure in Article 5 does not apply in these circumstances. As such, she would not have any rights violated which would allow for a successful grievance. It accordingly is my view that the grievance is to be dismissed. Dated at Guelph, Ontario this 25th day of February, 2002. David Cameletti, College Nominee -16- ADDENDUM I have had an opportunity to read Mr. Cameletti's dissent. One of the points he raises is art. 15.4 only applies to the reduction of personnel and not to the reduction of hours, days, or weeks. The agreed Statement of Facts does not address this issue. However, the April 25, 2000 Memorandum provides a clear indication of what one could expect to happen if the grievor opted to take Option 1. Option 1 states the grievor could be reassigned to another twelve month, full-time position being occupied by the most junior employee in the classification of Secretary B in the position of Secretary to the Registrar. The position the grievor held at the time was in the Health Services department. Option I standing alone is s~flScient, in our view, to conclude by inference, if necessary, that the college contemplated a bumping situation would occur if she had. elected to take Option 1. There is simply no evidence before us that a reduction in personnel would not take place.