HomeMy WebLinkAboutWei 03-10-29 ¢ 00/- 05(-¢/- OdDT_
IN THE MATTER OF AN ARBITRATION
BETWEEN
SENECA COLLEGE OF APPLIED
ARTS AND TECHNOLOGY
The College
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
The Union
AND IN THE MATTER of the grievance of Terrance Wei that he had been unjustly laid
off and disciplined.
Board of Arbitration: ~
I.G. Thorne, Chairman
Robert Gallivan, College Nominee
Sherrill Murray, Union Nominee
Appearances for the College:
Michael T. Doi, Counsel
Jane Wilson, Employee Relations
Angela Williams, Director, International Student Development
Justin Kazakevicius, Director, Facilities Management
Appearances.-for the Union:
George Richards, Senior Grievance Officer
Janice Hagan, Chief Steward
Terrance Wei, Grievor
Hearings in this matter took place on January 15th, April 2ha, 2002, January 15th, January
16th, April 1st, April 2ha, April 28'h, and June 23rd, 2003, at Toronto, Ontario.
AWARD
On May 1s', 2001, Terrance Wei, a Technician C in the Physical Resources Department,
filed the following grievance:
I grieve under Article 18.7.2 of our Collective Agreement, that I
have been unjustly laid off, and that the College has improperly
applied Article 15.4.3, and that I also being disciplined unjustly.
Furthermore, I grieve that the College has violated my rights under
Articles 1.2, 2.1, 2.3, 16.2, 16.3 and 16.4.
Thus the grievance alleged several violations of the collective agreement. It also proposed
several elements of remedy, some in the alternative. The grievance also stated that it had been
copied to the College's Director of the Centre for Employment Equity and Human Rights as a
formal letter of complaint under the College's policy for harassment and discrimination. For
reasons which will appear, the focus of the hearing before this board was on the Union's
contention that the grievor had been laid off, not because ora shortage of work, but in bad faith.
The grievor's situation can be understood only in the context of certain changes in his
employment at the College which occurred over a period of somewhat more than a year. As will
be seen, certain issues which arose during this period were the subject of another grievance which
has been heard by another board of arbitration.
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The grievor was hired by the College in 1998 to work as a part-time employee in the
International Services Department. There he assisted overseas students of the College with
various aspects of their lix)ing and studying in Canada. The grievor is a native of China; many of
the students were from China and spoke little English so that the grievor was able to assist them
in adjusting to life in Canada.
Part-time employees are not covered by the collective agreement. In January 2000 the
grievor applied for a full-time position in the bargaining unit, that of International Services Co-
ordinator. A question arose as to the entitlement of the grievor, as a part-time employee, to apply
for a position in the bargaining unit. The grievor's application was denied and the matter was
grieved and ultimately settled. It was then recognized that the grievor had been working more
than 24 hours per week and thus should not have been treated as being excluded from the
bargaining unit. The College and the Union were content that the successful applicant for the Co-
ordiantor position could remain in the job, and they also agreed that the grievor should be a full-
time employee and should be placed in the position of Technician C (Draftsman) in the Physical
Resources Department. This was considered to be an appropriate placement as the grievor had
been a professional engineer in China and had also worked in that capacity in Botswana for a
number of years, The position was in Payband 9. The grievor started in the job in March 2000.
(This was not a completely smooth transition for the grievor. On February 7m, 2000, he had filed
a grievance following the elimination of his part-time position. The upshot was that he was then
treated as a full-time employee with the rights flowing from a layoff. On February 18th it was
proposed that he should be reassigned as an International Admissions Officer, Payband 7, but it
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appeared that an individual with more office experience was required Ultimately the College
proposed the position in Physical Resources, which the grievor accepted.)
The treatment of the grievor by his supervisor in that position is central to the allegation
that the College later acted against him in bad faith, and will be dealt with in detail later in this
award. At this point it is sufficient to note that, on July 5th, 2000, the grievor was notified that his
supervisor had reported that he was unable to perform some of the essential duties of the position
and that, in effect, he was to be laid offfrom the position. On the same day the grievor was
advised that he would be reassigned to the position of Clerk Supply, working in the book store.
That position was in Payband 5.
The grievor grieved the reassignment and the grievance was settled in October 2000. The
settlement returned the grievor to his position in Physical Resources, subject to certain conditions;
effectively the grievor was on trial for a six-month period. It is the Union' s contention that the
grievor's supervisor did not provide him with the guidance and advice which the settlement called
for.
In April 2001, the grievor was again advised that there would be a reduction in staffing
requirements. On this occasion he was reassigned to the position of Groundsworker in Payband
5. Two grievances were then filed, one by the grievor which is before this board, and one by the
Union alleging a failure by the College to create full-time positions in the International Division
which is before another board. The Union's grievance sought as a remedy, among others, the
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reapplication of Article 15.4.3 with respect to the grievor, taking into account all positions within
the International Department. The grievor's own grievance made a similar reference: it sought
either the maintenance of his position as Technician C or a permanent reassignment to one of the
positions in the International Department. It would appear that the position in the International
Department to which reassignment was sought would be one of those which the Union's
grievance contended should be created.
Against this background can be set out the two alternative approaches which the Union
advocated before this board. The first was that there was full-time work in the International
Department into which the grievor could bump following his layoff from the Technician C
position. The other was that work in fact remained to be done by the Technician C position in the
Physical Resources Department but that, in bad faith, the grievor had been denied the opportunity
to carry out those duties. To the first position the College responded that it was not appropriate
to create full-time positions in the International Department for reasons which need not be
elaborated on here. The College's response to the second position was that there was indeed a
lack of work in the Physical Resources Department and that the grievor's position had in fact
been discontinued.
On the second day of hearing the Union proposed that the hearing should proceed in two
stages. The proposal was that we should first hear evidence about the situation surrounding the
job in the Physical Resources Department and make a decision with respect to those issues -
essentially the question of whether the College's action in laying the grievor off from the position
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in that department was bona fide or whether it was made in bad faith. The Union pointed out that
the question of the grievor's entitlement to a job in the International Department was the subject
of the grievance filed by the Union, i.e. whether, among other matters, the College should have
created full-time positions in the International Department. Those issues were before another
board and, although the Union had hoped for a decision, the hearing had not been completed by
this time. In the Union's submission that aspect of the case would best be dealt with by awaiting
the decision of the other board, following which the Union could decide whether to proceed with
the aspect of the case involving the International Department and which might lead to the
grievor's bumping into one of the newly-created positions. The College was opposed to dividing
the hearing in this way.
The majority of the board decided that we would proceed as proposed by the Union. At
this point we will record our reasons for that decision in case they need to be referred to in the
future. (Mr. Gallivan dissented on the grounds that since the grievor had sUbsequently identified
two positions - those held by Garcia and Zang - into which he claimed the right to bump, it would
be more efficient to hear all aspects of the grievance together.)
It had been pointed out in argument that the grievor had not identified the position (and
name of incumbent, if any) to which the grievor claimed entitlement nor, as we understood it, did
the referral to arbitration do so. Article 18.7.2.1 required a grievor to do so in his grievance and
to narrow his claim to four positions in the referral to arbitration. We were advised that the
Union had, before the hearing, named two incumbents in the International Department. It was the
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Union's position that it was impossible for the grievor, when he filed his grievance, to know what
position to identify in the International Department since the College had not created the one or
more full-time positions that the Union maintained it should have created. That issue was the
subject of the policy grievance before the other board.
We could not anticipate what the outcome of the other hearing might be. One possibility -
and it was only a possibility - was that the award in that case might determine that a full-time
position or positions should have been deemed to have existed at the time the grievor received his
layoff notice. It might then be argued that these were positions which the grievor could have
named. We said no more about this matter except that arguments could obviously be made about
whether such a situation could excuse compliance with Article 18.7.2.1. Further, it was possible
that the other board might examine those issues. Our own view was that some such outcome was
possible and that we should not decide now that the grievor should or should not have the benefit
of it. We considered that the best course was to await the decision of the other board and to
retain jurisdiction with respect to all issues surrounding the grievor's claim to be entitled to a
position in the International Department.
The parties then called evidence and dealt with the allegation of the Union that the grievor -
had been laid offfrom his position in the Physical Resources Department in bad faith.
The evidence dealt in some detail with the entire sequence of events summarized earlier in
this award. In examining this evidence we must bear in mind that the specific grievance before us
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relates to what might be called the second period of time that the grievor spent in the position in
Physical Resources. Indeed the grievance which arose out of his first period in the position was
settled on terms which seemed satisfactory to all parties at the time. Nonetheless it is appropriate
to consider evidence of what took place during the first period, and before that time, in view of
the nature of the allegations which the current grievance has raised. An assertion that someone
has acted in bad faith is both a serious one to raise and a difficult one to prove. If acts of bad faith
have occurred, their significance may not be appreciated except in the context of a series of
events. That is what the Union says in this case: that what prompted the grievance before us was
the action of the grievor's supervisor in bringing about his reassignment in April 2001, but that
the evidence which demonstrated the supervisor's attitude to him extended back in time for a
considerable period. It was thus in order for the Union to canvas what had taken place during the
grievor's first period in the position and even before, and for the College to call evidence about
the same events in order to rebut the inferences which the Union sought to draw.
At this point we shall touch on the concept of"bad faith" as it may apply in a layoff
situation. The parties did not disagree that the College, in determining to lay off an employee,
was bound to do so for reasons which were not tainted by bad faith. The parties also did not
disagree that the concept of bad faith was appropriately described in several leading cases, for
example Re Abex Industries l,td. and United Food & Commercial Workers' Union. l,ocal 173W
(1995), 48 L.A.C.(4th) 353 (H.D. Brown) at p 364. "Bad faith" is generally understood to
include not only dishonesty of purpose but arbitrariness or discrimination. The parties were not
really in disagreement, moreover, that an employer should base its decisions on valid work-related
9
criteria or appropriate business and operational considerations. In these respects we were
referred also to Re St. Lawrence College (Brent) and Ontario Public Service Employees Union
[unreported, Divisional Court, February 17, 1989); Re St Lawrence College and Ontario Public
Service Em'olovees Union (unreported, November 8th, 1989, Brent); Re Artcraft Enaravers Ltd.
and Grar~hic Communications International Union, Local 517 (1990), 12 L.A.C. (4th) 363 (Brent);
Re Canadian Airlines International Ltd. and Husain (1998), 161 D.L.R. (4th) 381 (Federal Court
ofAppeal);Gismondi v. City of Toronto (unreported, Court of Appeal, April 29, 2003); Re
Loyalist Colle,ee and Ontario Public Service Emr~lovees Union (unreported, February 23rd, 1994,
Bendel); and Re Seneca College and Ontario Public Service Eml~lovees Union (unreported,
December 10th, 1998, Thorne). The Union's contention in this case was that the grievor's layoff
was not prompted by an operational consideration (a shortage of work) but to use that reason to
disgUise its desire to get him out of the Physical Resources Department without having to defend
its decision on grounds of the grievor's competence or suitability.
The grievor's assignment to the position in Physical Resources in March 2000 happened
quite quickly. It occurred during the period after it had been recognized that the grievor was
entitled to be treated as a full-time employee. The assignment was, ironically, a result of his
unsuccessful application for the position of International Coordinator and his subsequent
grievance seeking full-time status. At one time one full-time person had been doing coordinator
work in the International Department. A second such position was posted in January 2000, and
that was the one for which the grievor had applied. The successful applicant for that position was
qualified and had considerable seniority, and it appears that the Union and the College believed
i0
that the outcome would be the same if the competition were re-run to include the grievor as a
candidate. The recognition of the grievor's full-time status made him the third full-time employee
in the department. There was no requirement for a third full-time employee and he was therefore
made redundant. It was not suggested that this sequence of events formed any part of the alleged
bad faith against the grievor; after he grieved, the College examined the number of hours he had
been working; the College acted quite promptly to include him as a full-time employee in Payband
8, backdated to January 6~', 2000.
The reassignment of the grievor on this and later occasions took place in accordance with
the layoff/recall process set out in Article 15 of the collective agreement. In such cases, when the
College" ... contemplates any action that may result in an employee ... being subject to the layoff
process .... ", the College is required to notify the local union president in advance of any notice to
the employees affected (Article 15.2). The matter is then put before the Employment Stability
Committee, whose duty it is to consider the matter and make recommendations to the President
of the College after examining a number of alternatives" ... which might be resorted to in order to
prevent or minimize the dislocation of employees" (Article 15.3.3). The Union, the College and
the Committee are obliged to maintain confidentiality regarding any information received and their
own deliberations (Article 15.3.2) and further must maintain confidentiality for a period of time
with respect to any recommendations the Committee may make (Article 15.3.4). Only after that
are affected employees made aware of any reassignment or other action that may be proposed for
them. The grievor was not treated differently from other affected employees in this connection.
However, from the perspective of Janice Hagan, President of the Union Local at the time, the
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requirement to maintain confidentiality prevented her from discussing with the grievor information
that came forward about his situation while potential reassignments were being discussed.
Following the recognition of the grievor's full-time status and his nominal assignment to
the International Department, the first formal notice that the grievor received about a potential
reassignment was a letter from the College dated February 18th, 2000. This notification had, of
course, been preceded by the deliberations and recommendations of the Employment Stability
Committee. The letter advised the grievor that he would be reassigned to the position of
International Admissions Officer in Payband 7. He was directed to contact the supervisor of the
position. He did so and, atSer a meeting with him, the supervisor decided that he was not a good
fit for the position, largely because he lacked relevant office experience. The evidence was that an
interview and assessment by a potential supervisor was a formal part of the procedure. The result
was that further efforts were made by the College and the Union to find a suitable position to
which the grievor might be reassigned. The grievor then had a meeting with Jane Wilson,
Personnel Officer, and Rod Bemister, Vice-President of the Union, at which the position in
Physical Resources was proposed to him. The position was described as one of Auto-Cad
Technician with duties which included making technical drawings of construction and renovation
projects and using Auto-Cad computer drafting programs. The grievor was able to tell Ms.
Wilson and Mr. Bemister that he had several years of experience with drawings of projects and
had also used Auto-Cad programs for years. However the position was in Payband 9 and
assigning the grievor to it would mean a bump upward. Both Ms. Wilson and Ms. Hagan testified
that, in their experience, a bump upward had never taken place before. However both the Union
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and the College felt that it could be justified in this case. From Ms. Wilson's point o£view a
review of the grievor's qualifications indicated that he would be a good match for the position,
which was vacant and for which there were no internal candidates. Further, it seemed that other
attempts to match his skills with available positions would result in an assignment in a much Tower
payband. She sought and obtained the permission of her director to make the assignment. Ms.
Hagan was also pleased: not only would no other employee be displaced, but the grievor would
have a position which matched his skills and would also have the advantage of giving him
experience in Canada which he needed in engineering work. The assignment seemed satisfactory
to all concerned and the grievor accepted it.
His assignment to the position then took place quite rapidly. In the normal course in such
a situation, Ms. Wilson testified, a letter would be sent to the employee affe'cted advising him of
the reassignment and he would be invited to meet with the supervisor of the position (as had
happened in the case of the earlier proposed assignment as International Admissions Officer).
Neither of these things happened in the case of the grievor's assignment to the Physical Resources
Department. It was the Union's contention that the grievor had been parachuted into the Physical
Resources Department without the concurrence of his supervisor, and that the grievor's arrival in
this way was a bad start to their relationship and began a sequence of events which ultimately led
to the supervisor's seeking his removal from the Department. These events were canvassed in
some detail in the evidence.
Ms. Wilson testified that she called the supervisor, Bill Utton, Senior Manager of Physical
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Resources, on or about Thursday, March 2nd, 2000. She told him that the Employment Stability
Committee had identified this position as a suitable one for the grievor. She also told Mr. Utton
that the next step should be a meeting between him and the grievor. Her recollection was that
Mr. Utton said that she should simply send the grievor in first thing the following Monday
morning. Ms. Wilson said that Mr. Utton could speak to the grievor and get back to her and he
responded "No, he can start and we'll see how it goes." Thus, she said, Mr. Utton had chosen
to waive a meeting. She felt that the absence of a letter to the grievor aboui the assignment was a
mistake on her part, perhaps due to the short timeframe before he was to take up the position.
Mr. Utton also testified. His recollection was somewhat different. He recalled that Ms. Wilson
had called him on a Thursday or Friday to tell him that she was proposing the grievor for the
position and that the grievor would be coming on the Monday or Tuesday to meet Mr. Upton in
the office. It was suggested to him in cross-examination that it would be normal in such
circumstances to give a manager an opportunity to meet the employee involved and assess his
qualifications. He responded, "I guess, where time permits. I wasn't given that time."
The grievor reported to Physical Resources for 8:00 a.m. on the Monday. Mr. Utton
arrived about half-an-hour later and the grievor explained that he had been told to report to him.
The grievor's and Mr. Utton's recollection of this meeting differed. The grievor recalled that Mr.
Utton responded that he had heard nothing about this. Mr. Utton testified that he had been told
by Ms. Wilson to expect the grievor on the Monday or Tuesday. Mr. Utton also stated that he
had been very busy at the time, had come into the office after making his morning rounds of
facilities, and had sat down and talked to the grievor for ten or fifteen minutes. He said that he
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gave him an inventory of the plans on file in the Department so that he could start to familiarize
himself with them. In the days which followed, he said, he took him to see some of the facilities
for which he was responsible and they also started to deal with requests which came in from other
departments for renovation work
The grievor himself testified that Mr. Utton immediately gave him a project to work on: a
completion of drawings for a project for the Business Department which had not been finished by
the previous occupant of the position.
It does not appear that the grievor was given a copy of the job description for the position
when he started. He testified that Mr. Utton really did not review the duties of the position with
him. This was not an ideal introduction to the position. However the grievor did learn what his
responsibilities were and we note that there was no complaint against him that he did not know
them.
We have set out the events surrounding the grievor's start in the position in some detail,
both because the nature of his start caused the grievor some concern, and because the evidence
illustrates the sort of inconsistencies, both minor and major, which we found in the evidence. We
should first observe that these events took place at least two years before some of the witnesses
testified about them, and that the details may not have seemed as important at the time as some
individuals later came to think they were. It is natural that recollections might differ in such
circumstances. Having heard the evidence of Ms. Wilson, the grievor, and Mr. Utton, we find
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that the recollections of the Ms. Wilson and the grievor were generally clear and straightforward.
In several instances Mr. Utton's accounts of events were somewhat unclear. By his own account
he was very busy at the time of the grievor's arrival. He was involved in year end budgetary
matters which he referred to a number of times. By his own and the grievor's account, he did not
spend a great deal of time with the grievor and it may be that he was preoccupied with his other
responsibilities. We do not fault him for this. He lePr the College at the end of June 2001, and has
been retired since that time and it is understandable if College affairs have not been foremost in his
mind. Because of these factors, however, we would place more reliance on the evidence of Ms.
Wilson and the grievor when their accounts of events have differed from his.
So far as the grievor's arrival at Physical Resources is concerned, we do not find that Mr.
Utton was forced to accept the grievor against his will. Despite the short n~tice he received he
could have taken the opportunity to assess the grievor's qualifications, but he did not and he
simply accepted the grievor's arrival. The position which the grievor moved into had been vacant
and, while Mr. Utton did come to wonder whether there was sufficient work for the grievor to do,
the evidence does not indicate to us that he was opposed to the position being filled or to the
grievor's filling it. To the extent that we can assess his attitude to the grievor during his first
period in the position, our impression is that Mr. Utton was not particularly engaged with the
grievor or the work he was doing.
In his new assignment the grievor had responsibilities primarily in two areas. One
involved working with other departments in the College which wished to have building
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renovations made in their areas. The grievor was to have discussions with the supervisors of
those areas, learning their requirements, discussing the feasibility of their requests, and preparing
plans and drawings of all aspects of the work which was proposed in order that quotations could
be obtained from contractors. One part of this work which later became contentious was the
expectation that the grievor would be knowledgeable about the building and fire codes so that the
plans could be prepared in a way that would comply with those codes. The other broad
responsibility which the grievor had was to install drawings into the computer system in Auto-Cad
format. Plans for renovations were to utilize the Auto-Cad system. There was also some
expectation that some existing plans prepared manually would be converted to the Auto-Cad
format, and this latter aspect of the work later became contentious as well.
When the grievor was given his first assignment, that of completing the drawings for the
renovations in the Business Department, he asked Mr. Utton if there was software for this
purpose. Mr. Utton told him to prepare the drawings by hand. The grievor testified that he at
first thought that this was intended as a test of his abilities. In any event he 'went ahead with the
assignment and he showed the plans he had prepared to Mr Utton. Mr. Utton said that they were
"good". He said that Mr. Utton's response was usually that the work he did was "good" and that
in fact he had no problems with Mr. Utton for the first few weeks. The grievor soon determined
that, although there was Auto-Cad software in the department, it could not be used as the codes
which would give access to it could not be found. The grievor raised the matter several times and
after about three weeks suggested to Mr. Utton that the software would have to be purchased. In
early April Mr. Utton authorized the purchase of the software, which was received in May.
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During his first period in the position the grievor worked on the design of three renovation
projects. Throughout this period he was given no indication that there was anything
unsatisfactory about his work. There were, however, a few matters about which there was some
discussion: on one occasion the intended size ora window was not indicated on a drawings; on
another there was an issue about the location of a fire hose cabinet which would not meet the fire
code if it was placed as the client department wished. It was not clear to us from the evidence
that the grievor had in fact made errors in these matters, which may well have seemed simply to
be matters for discussion as the plans progressed and appear to have been so treated by Mr.
Utton.
There was evidence that it was the College's practice, when an employee was subject to
the layoff and bumping procedure and was assigned to a new position, that the employee's new
supervisor would have a period of sixty days in which to ensure that the individual was suited to
the job. In the grievor's case the sixty-day period would have expired in early May 2000.
The first indication the grievor had that all was not well was a confidential memo sent to
him on July 5th, 2000, by Ms. Wilson:
This will confirm that the Union/College Committee has met to review your reassignment,
effective March 6, 2000, to the position of Technician C in the Physical Resources
Department at Newnham Campus. Your supervisor, Bill Utton, Senior Manager,
Physical Resources, has advised the Committee that you are re unable to perform all the
essential duties of the position - specifically, the communication skills required in this
position to interact effectively with staff and contractors and an understanding of the
relevant building and fire codes. In accordance with the provisions of the Collective
Agreement, the Union/College Committee has discussed the options and alternatives
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available in order to prevent or minimize the dislocation of employees.
A letter of the same date advised him that he was to be reassigned to the position of Clerk
Supply, Payband 5, in the book store. The College had brought the matter of the grievor's
assignment back to the Employment Stability Committee, whose proceedings were, of course,
confidential, so that the grievor did not learn of them until a decision had been made. (The Union
members of the Committee did not concur in the decision.) Ms. Hagan and Ms. Wilson testified
about what had taken place at the Committee meeting: Mr. Utton had been present and his
concerns had centered on comments made to him by other members of staff about difficulties the
grievor had had in communicating with them; the Committee had made a mistake and the grievor
did not have the communication skills to do the job. Mr. Utton also testified about the situation
he had raised with the Committee. He said there had been some small performance problems. An
individual hired to deal with the Super Build Program at the College said he had had trouble
getting things from the grievor but really, Mr. Utton said, he had not had all that much for the
grievor to do and he felt that the grievor had been put into an unfair position. As for
communication difficulties, Mr. Utton said that the grievor did have some but that he did not
know how big they were. Sometimes it was necessary to ask him something twice in order to
understand him. "Some listen", he said, "some don't". He himself did not really have problems
communicating with the grievor. He had to listen carefully and they would talk back and forth.
Having heard the grievor as a witness, the members of the board consider that Mr. Utton put the
situation quite fairly.
This is not to say that there were not difficulties between the grievor and Mr. Utton. The
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grievor felt that Mr. Utton ignored him, even to the point of not saying "Good morning" to him
when Mr. Utton greeted other staff members. Mr. Utton felt both that he did not have enough for
the grievor to do and that the nature of the job required the grievor to be a self-starter who would
carry matters forward himself. He was concerned that down the road the grievor would not be
able to handle the job. Mr. Utton reacted vehemently to the suggestion that the grievor had
alleged that he had discriminated against him. (This allegation appeared in the grievance which is
before us dated May 1st, 2001, quite some time after the events just described.) As a Mason for
25 years, he said, it would be against his masonic code and all his own thinking to discriminate
against anyone. His staff came from many countries and this made no difference. He insisted that
he had sought the grievor's reassignment for the reasons he expressed and no others.
As indicated earlier in this award, the grievor's reassignment became the subject of a
grievance which resulted in a settlement. Thus the events leading up to the settlement are not
relevant to the present grievance except to the extent that they may shed light on the allegation
that the College has acted in bad faith.
The settlement returned the grievor to the position in Physical Resources. We admitted as
evidence the portion of the minutes of the Step 3 grievance meeting which described the terms of
the settlement:
It was agreed that you will return to Physical Resources in the Technician C position on
October 10, 2000, on the understanding that you will be required to perform the duties
and responsibilities in a satisfactory manner, and that your supervisor, Bill Utton, will
provide you with guidance and advice in managing your performance towards a
satisfactory result and, to this end, you will inform your supervisor of problems or
20
concerns that you may have in the performance of your duties and responsibilities; that
your performance will be assessed by your super~,isor after a period of 6 months at which
time the parties will reconvene to discuss this matter; that your rate of pay since your
reassignment to the Bookstore and your return to Physical Resources on October 10 will
be split equally between the two rates of pay pertaining to the two positions; and that in
the meantime your grievance will be held in abeyance which the Unibn can continue with
or withdraw subsequent to the foregoing, all of which is entered into on a without
prejudice or without precedent basis.
In addition, Ms. Hagan asked if Ms. Wilson could get the grievor into some of the
College's courses in English as a second language. This was done. The grievor enrolled in a
general communication course and in a higher level course where the focus was on grammar and
comprehension. (He was successful in the first course, but did not continue with the second as he
did not find it useful.)
The grievor then returned to his job in Physical Resources. He testified, however, that his
relations with Mr. Utton were no better than before. On his request he was given a copy of the
job description, but his evidence was that Mr. Utton never discussed the job description with him.
Nor did he give him professional advice. Rather, the grievor testified, Mr. Utton ignored him.
The grievor said that at the beginning Mr. Utton did not speak to him. Then, after a few weeks,
Mr. Utton asked him to continue with the library project. During this period, he testified, his
relationship with Mr. Utton was not comfortable. Mr. Utton ignored him and did not speak to
him or discuss anything. When greeting others in the office he acted as if tl'/e grievor was not
there. The grievor felt that Mr. Utton's attitude indicated a prejudice against him because he had
filed a grievance. He said that he tried to discuss this concern with Mr. Utton, but could not. He
could only think, he said, that Mr. Utton had a deep prejudice against him. At first the grievor
21
returned to renovation projects. He completed the library project which had begun during his
previous time in the position. The Student Services Department had requested some renovations
and he started to work on that project but it was discontinued when he was told that there was
not enough money for the project. After that there were no more renovation projects to do. He
then began some work on his own initiative: he started to convert existing drawings of the
buildings into the Auto-Cad format, updating them at the same time. He testified that he told Mr.
Utton that he was doing this and that Mr. Utton's response was that this was a good idea, that the
drawings needed updating as this had not been done for a long time. He said that Mr. Utton
asked that he start with the drawings for Phase 1 of the building (this being a distinct area of the
building). The grievor started with the architectural drawings, then the electrical, then the HVAC.
By the time he left the office in April of 2001, he said, he had finished Phases 1 and 2 and part of
Phase 3 of the Newnhan Campus, out of 6 phases in the building. He said the work was not easy
and was time-consuming since it involved working from older blueprints which were difficult to
read. He started this work,' he said, because he was still waiting for Mr. Utton to come and
discuss what he was to do. When Mr. Utton was asked in chief about the grievor's evidence that
he had authorized the conversion of the old blueprints to the Auto-Cad format, Mr. Utton said
that he had not done so. He also said that he did not see why he would. To make accurate new
plans it would be necessary to look at what had been built all over again and there was no way
one person could do it. In cross-examination he agreed that the grievor probably had discussed
the idea with him and then he believed he recalled some discussion about the plans for the 4a' floor
of the building but he was not quite sure.
22
The grievor did have a basis for believing that this was part of his job. The job description
he had been given set out two broad areas of responsibility: one was to "install equipment and
drawings on CAD/computer system", which was to occupy approximately 50% of his time
annually. The other was to "produce CAD drawings for contractors and obtain quotes for
supervisor", for 30% of his time. Mr. Utton's view of the first responsibility was that the intent
was that new drawings would be put onto the CAD system rather than a re-drafting of the whole
building. It was put to him that that would be the effect of the second listed responsibility, and he
then appeared to acknowledge that some conversion to CAD of the existing drawings was
contemplated. He then said that he had seen the grievor working on the Phase 1 plans, but he
said that he had not seen them completed.
It is clear to us that the grievor was indeed working on the plans he described and that he
had discussed this with Mr. Utton to some extent. Cfiven his evidence that his relations with Mr.
Utton did not then involve a great deal of communication - evidence which we accept - it is
perhaps understandable that Mr. Utton did not have a clear recollection of what the grievor had
been doing. It appears that the grievor was trying to make himself useful at a time when he was
not being given much work to do.
The question of whether there was, in fact, enough work for the grievor to do is central to
the issue between the parties. It is clear that, after the grievor returned to the job, there was very
little renovation work to be done. At the hearing Mr. Utton explained his understanding of what
had happened. The Province' s Super Build program had coincided with the double cohort of high
school graduates. It was going to be necessary to make space for about 2,200 additional students
at the Newnham Campus. In preparation for this a substantial rebuilding was going to be
undertaken with funds from Super Build. In the meantime renovations were frozen except in
emergency circumstances, in which case approval would have to be obtained from a vice-
president. At first this was a temporary hold, he said, but by Christmas it was evidence that they
were going to, as he put it, rip the building apart. After the new year, he said, it was clear that a
drafting office was not going to be needed.
From the grievor's perspective the start of the College's involvement with Super Build
kept him busy. This was because the engineer, architect and contractor for Super Build would
come to him to ask for Auto-Cad drawings of parts of the building. He and an engineer involved
with Super Build worked in the same office and his own view was that they worked as a team.
In the meantime the grievor continued with his project of converting existing drawings to
Auto-Cad for the Newnham Campus. He was not given the opportunity to convert the drawings
for other campuses, he said, and in fact he understood that Mr. Utton had contracted out the
conversion work for the Jane Campus. In April 2001, Mr. Utton told him that a person called
Brant would pick up the drawings for the Jane campus. The grievor asked Mr. Brant what he
wanted the drawings for and received the reply that Mr. Brant had got a contract to convert the
Jane drawings to Auto-Cad. The grievor felt that this was his job: if work on the Jane campus
drawings was more important, he felt, he should be asked to do it instead of someone else. He
contrasted his understanding of the situation with Mr. Utton's view that there was not enough
24
work for his position. Mr. Utton testified that the Jane campus was under the jurisdiction of a
Mr. Webster rather than himself and that he had not been consulted about it.. He understood that
the College had planned to sell the Jane campus but that a decision had been made around
Christmas time to keep it as part of the Super Build project. He said that he did not even know
Mr. Brant. In this connection we heard evidence from Roy Langille, the current Director of
Facilities Management, and the successor to Mr. Utton's responsibilities. He testified that Calvin
Brant was the owner of a company which the College had hired to do facility audits from a
structural engineering and architectural viewpoint. He would study the entire building envelope in
order to produce a five-to-ten year plan for needed repairs and their cost. In the course of this
work he would examine existing blueprints to see how the structure had been built and what its
equipment was. This was not the same work as the grievor had been doing, he said. In his
opinion there was no operational need now for the grievor's position: no renovation projects were
being done outside the Super Build project and Super Build would result in as-built drawings.
There was, therefore, no need for any conversion of existing drawings.
During the grievor's second period of time in the job in Physical Resources, Ms. Hagan
continued to receive regular complaints from him that Ma'. Utton was still not speaking to him.
She understood that Mr. Utton had provided the grievor with a copy of a job description but that
his behaviour had not changed. The Union raised this matter verbally with the College but took
no further step assuming, she said, that if there was no feedback to the grievor there were no
complaints about him. Then she was notified, on February 6~', 2001, that a layoff of the grievor
was contemplated. The Union reconvened the Employment Stability Committee. Ms. Hagan said
25
that the Union was extremely suspicious about this layoff, given what it understood of the history
of the matter and that the position had been established for a long time. The Union asked that
Mr. Utton be present at the Committee's meeting to answer questions.
At the meeting, Ms. Hagan testified, Mr. Utton stated that the layoff had nothing to do
with the grievor personally but had to do with the fact that the College would be building new
structures on the campus under Super Build and the grievor would not be the only redundancy.
She said Mr. Utton told the committee that there would be no need for a technician to do drafting
and Auto-Cad work because architects and engineers would be present on a temporary basis for
approximately three years. During that time the only renovation and construction work would be
taken care of under Super Build; smaller jobs would not be done by the College. Ms. Hagan's
reaction was that this sounded like a reasonable justification for redundancy of the position. It
sounded sincere, although she was not knowledgeable enough about building construction to ask
probing questions. The Committee looked at the bumping possibilities and found that the grievor
would end up in Payband 5. The Union then pursued the possibility of work in the International
Department, asking the College to provide it with information about the hours being worked by
part-time employees. Apparently this information was provided but the College also advised that
the International Department was not prepared to create a position. The Union then prepared a
separate recommendation to the President of the College expressing satisfaction that there would
not be enough work in the grievor's present position to warrant a full-time position for at least
three years, but urging the College to consider work for him in the International Department. The
recommendation was not accepted.
26
On April 20th, 2001, the grievor was informed that he would be reassigned to the position
of Groundsworker in Payband 5. The grievor met Ms. Hagan and was very, upset. He pointed
out to her that his position in Physical Resources had been created a considerable time after the
College had been awarded funds under Super Build. He told Ms. Hagan that there would still be
significant work to be done: there would still be renovation work at the Jane campus and at the
King campus, and his main work, that of converting paper plans to Auto-Cad, still needed to be
done. He believed that the layoff was being used as a way to get rid of him Putting the grievor's
concerns together with the fact that his treatment in the office had not changed even after the
settlement of his previous grievance, she said, the Union and the grievor cohcluded that his
position was not in fact redundant and that the College was eliminating it in bad faith.
Ms. Wilson testified about this sequence of events. Both she and the Union had been
surprised, she believed, at what they heard at the meeting of the Employment Stability Committee.
She had understood that, when the grievor had been assigned to the position in 2000, there was a
need to have building plans converted to Auto-Cad, which she understood was a requirement of
the Ministry for funding purposes. However she had evidently accepted the rationale for the
redundancy of the grievor's position. It was not at first clear, she said, what the relationship of
the College to contractors under the Super Build project would be. By February 2001 the
College had hired an in-house person to deal with companies on contract with Super Build and
smaller renovations had been wrapped up into the SUper Build program. Mr. Utton himself had
been affected by the restructuring, she said: the College decided that the department would
become known as Facilities Management and would be directed by a person with higher
27
qualifications; Mr. Utton himself became redundant. She acknowledged that there had been no
complaints about communication problems with the grievor following his return to the position,
but she pointed out that there had been only two renovation projects.
Apart from what the grievor had said about there being a continuing need for his work in
Physical Resources, Ms. Hagan believed that an occurrence in February 2002 demonstrated that
need: on February 15th, 2002, the position of CADD Operator in Facilities Management at the
Newnham Campus was posted. The occupant would be a Technician C in Payband 9. The
person in the position would be responsible for" ...providing drawings to be used by contractors
and in-house staff for the purpose of construction and rehabilitation of College properties,
maintaining and modifying existing drawings consistent with up-to-date information and
coordinating on-site inspections and preparing reports for/to requesting agehcies." This posting,
and a corresponding job description prepared by the then-manager of Facilities Management, led
Ms. Hagan to believe that the work which had been done by the grievor still needed to be done.
Ms. Hagan believed that the position had actually been filled by a person from outside but that he
left after two or three days. She also understood that the departure of the then-manager caused
the matter to be placed on hold pending the arrival of a new manager. The view of the new
manager, Mr. Langille, has akeady been recorded. Ms. Wilson was asked about the new job
description in cross-examination in one respect only: she agreed that it contained a more detailed
expansion of the duties of the former job description under which the grievor had worked and also
agreed that the core duties were essentially the same.
28
By the time Ms. Wilson was called as a witness the parties had already reached agreement
about the evidence which they would place before the board in connection with the new posting
and job description. The posting followed an approach from the Union to the College in
December 2001, in an effort to resolve grievances involving the grievor. The discussions did not
result in a resolution. Both this board and the parties were concerned not to hear evidence about
discussions that had taken place during the grievance procedure. The parties reached agreement
on this matter in the following terms:
Agreed Statement of Facts
Grievances of Terence Wei
April 2, 2003
1. In December 2001, Jane Wilson (Employee Relations, Seneca College) and Janice
Hagan (President OPSEU Local 561) discussed a resolution of certain grievances
involving Terence Wei by establishing a position in the Physical Resources
Department at Seneca College.
2. An Agreement was reached between Seneca College and OPSEU whereby:
i the College would consider Mr. Wei for a Payband 9 position in Physical
Resources as described in Exhibits 19 and 20 [these being the posting dated
February 15, 2002 and the related job description];
ii. there would be an interview and a test, before any formal posting of the
position, to determine Mr. Wei's suitability for the position;
iii. If determined to be suitable, Mr. Wei would be appointed to the position,
and this would resolve his outstanding grievances.
3. A committee to interview Mr. Wei was formed. This committee included Jane
Wilson (Employee Relations), Justin Kazakevicius (Director, Facilities
Management), and Rod Bemister (OPSEU Local 561), and an interview of Mr
Wei took place on January 8, 2002. That day, Mr. Wei also was tested pursuant
to the Agreement.
4. The College decided not to appoint Mr. Wei to the position in the Physical
29
Resources Department based on the interview and the test.
5. The Payband 9 position in the Physical Resources Department was never filled.
The Union relies on this Agreed Statement of Facts to assert its allegation of bad faith up
until January 8, 2002, and the College relies on this to rebut the Union's assertion in this
regard. In the event of a finding of bad faith as of May 2001 (i.e., the date of Mr Wei's
Grievance dated May 1,2001), the parties reserve their right to lead further evidence in
respect of the foregoing with respect to the issue of remedy.
Submissions of the Parties
Mr. Richards, for the Union, framed the issue as the Union saw it: was the decision to
eliminate the grievor's position motivated by legitimate considerations? He argued that the
evidence showed that there must be real doubt about the bona fides of the College's explanation
for the grievor's layoff and reassignment (i.e. a shortage of work) and that the evidence supported
the conclusion that the College had attempted to disguise its wish to get him out of the
department without having to deal with the issue of his fitness for the position. A "smoking gun"
was rare in cases of this sort but the Union argued that a series of small incidents of circumstantial
evidence, taken together, supported its view of what had taken place.
The first incident of significance, from the Union's point of view, followed the settlement
which had placed the grievor in the position in Physical Resources in the first place. While it was
commendable for the parties to bend the rules on that occasion, the Union questioned whether the
College had followed through on its commitment. The Union found it unusual that the grievor
had simply been placed in the position without the usual screening interview: the grievor had been
30
parachuted into the position and this led to bad relations with his manager.
The Union noted that the only complaints which had been made about the grievor's
performance aroie quite some time after the sixty-day period which was conventionally allowed
to a manager to assess the suitability of a reassigned employee. In the Union's view the grievor's
manager had not identified the standard of performance he was to meet and had not raised any
concerns with him during the sixty-day period, a situation which led the Union to wonder whether
the problems which eventually were raised were very serious - and thus whether the grievor had
been treated fairly.
The settlement of the grievor's subsequent grievance and his return to the position, the
Union suggested, indicated that there had been some recognition that there was substance to the
grievor's concerns and that there was some work to be done on the relationship between the
grievor and his manager. However the type of communication contemplated in the settlement had
not taken place and it should be concluded that the manager was not making any attempt to assist
the grievor to become a more effective employee. Instead the manager had taken the position that
there was nothing for the grievor to do. In contrast the grievor believed that there was work to
be done and had done his best to do what was necessary. Ultimately the College had acted to
reassign the grievor before the end of the agreed six-month trial period and in the Union's view
had deprived the grievor of the opportunity to show what he could do.
Mr. Richards pointed out that the Union was in a difficult position while the matter was
31
before the Employment Stability Committee following the College's decision to reassign the
grievor: the requirement for confidentiality meant that it could not consult the grievor and that its
only real source of information was the manager himself. In making a separate recommendation
to the President, however, the Union had tried to have the grievor spared form a humiliating
reassignment to a much less skilled position. The Union considered that the College's
disregarding of its proposal indicated a lack of sympathy for the grievor's circumstances.
Mr. Richards also reviewed the evidence relating to the availability of work for the grievor
as the Super Build program developed, arguing that there was work available assisting the
contractors and architects and that there was no evidence that there was not drafting work at the
smaller campuses of the College.
Dealing with the posting dated February 15, 2002, the Union argued that the posting was
evidence ora need to have the grievor's work done. The position could not have been created
just to satisfy the grievor since the posting came a month after the grievor had been considered for
the job. Even though the job was not filled, the Union inferred that the College recognized that
there was indeed a continuing need for the work to be done. In these circumstances the Union
found that the decision to lay the grievor off as he had been was questionable.
The College considered that the collective agreement had been consistently applied, even
in the grievor's favour, and in good faith. Mr. Doi reviewed the sequence of events by wlfich the
grievor came to be assigned to the Physical Resources Department, He noted that the Union had
32
participated in the process and that the issue of bona fides had not been raised until the present
grievance was filed. Mr. Doi also examined in detail the evidence relating to Mr. Utton's
treatment of the grievor. He suggested that the willingness of Mr. Utton to take the grievor on
without having an interview to assess him; and his continuing to work with the grievor beyond the
sixty-day assessment period, were not evidence of bad faith but the contrary.
Nor was there bad faith, in counsel's submission, in the resolution of the grievance which
the grievor had filed after his first period of time in the job had ended with a reassignment.
Everyone involved had believed the resolution was a good one and that both parties would follow
through on it; the Union had not expressed concerns then about Mr. Utton's good faith. Counsel
noted the willingness of the College to make language courses available to the grievor and the
grievor's failure to complete one of them, and he questioned whose conduct was the more
appropriate in that situation. He then reviewed the evidence relating to the grievor's second
period in the position. He observed that the job description under which the grievor worked
indicated the expectation that he would exercise independent judgement and that in carrying out
his tasks he would require limited guidance. What had really happened, he argued, was that
requirements had changed and there was less work for the grievor to do.
Only with the current grievance, counsel pointed out, had the Union' suggested that the
grievor had a complaint of discrimination. No particulars had been given. The College had asked
the grievor to take the matter up under its procedure for dealing with harassment and
discrimination. However the grievor did not participate in the process, on the Union's advice.
33
The College urged that we should draw an adverse inference from this way of proceeding.
Counsel also arguecl that there was no evidence to corroborate the specific acts of Mr. Utton
which were said to support the complaint of discrimination.
In summary the College's view was that, on both occasions when action had been taken to
reassign the grievor, this was done for operational reasons and was done in good faith.
Decision
In examining the grievor's and the Union's contention that the College acted in bad faith
in laying offthe grievor, it is important to start by looking at the specific concern that the grievor
had. That was the belief which he came to have that Mr. Utton was retaliating against him
because he had filed a grievance (and had been successful in getting his job back). He found that
Mr. Utton ignored him and did not give him the guidance and advice that he had been led to
expect from the agreement which returned him to his job in Physical Resources. Obviously Mr.
Utton did not ignore him totally since he did assign some renovation work to him. However the
evidence indicates that Mr. Utton did not pay much attention to him and that there was not the
open communication between them that should have followed the settlement agreement. It was
reasonable for the grievor to feel that Mr. Utton held something against him.
It was also understandable that the grievor might feel that his previous relations with Mr.
Utton had brought about Mr. Utton's apparent hostility to him. It was Mr. Utton's action that
34
had cut short his first period of time in the job; before that he had come to feel Mr. Utton had
probably been irritated that the gnevor had been put into the department without his agreement.
As we have indicated earlier in this award, the evidence does not indicate to us that the
grievor was imposed on Mr. Utton. Mr. Utton's attitude to him is better described as something
approaching indifference. He was busy, he felt himself to have hea,v~j responsibilities and he did
not have much time to spare for the grievor. He did have a vacant position in the department,
however, and there was work for a person in the position to do. There is no evidence Mr. Utton
was actually opposed to the grievor's occupying the position.
It is correct to say that Mr. Utton took action to have the grievor reassigned out of the
position. He did not do so hurriedly however, since his action took place nearly two months
beyond the normal sixty-day assessment period. The main basis for his decision seems to have
been the complaints of others that the grievor did not communicate well in English_ He himself
did not have much difficulty in understanding the grievor. It was not his complaints but those of
other people which prompted him to act. Whether he exercised good judgement in doing so is
something we need not assess as those who resolved the grievance reached their own conclusions.
It was after this point that Mr. Utton may have felt that the grievor's success was
embarrassing to him. His embarrassment could have led him to look to paying the grievor back in
some way. The grievor felt that Mr. Utton's attitude to him showed that this was the case. But
it is somewhat striking that Mr. Utton's attitude was much the same as it had been from the start
35
of their relationship. He did not communicate much with the grievor, did not give him much
direction and their relationship was an uncomfortable one. But if he wanted to have the grievor
out of the department there was no indication that he was making or relaying complaints about his
work or his ability to communicate or otherwise building a case against him.
Mr. Utton's actions to that point do not satisfy us that he wished to get rid of the grievor.
When he did take action the purported reason was that there was not enough work for the grievor
to do. In our view the question ultimately is whether there was in fact a shortage of work for the
grievor's position. We have summarized the evidence of Mr. Utton, Ms. Wilson and Mr. Langille
in this area. That evidence is reasonably cogent in showing that the advent of the Super Build
program at the College changed the nature and amount of work to be done in the department. So
far as one of the grievor's major responsibilities was concerned, that of planning renovations
requested by other departments, the evidence was that that work came to an end. For the next
several years renovation work would be rolled into the substantial rebuilding that would take
place at the Newnham campus where the grievor was chiefly employed. To the extent that his
other major responsibility required the converting of existing blueprints to the Auto-Cad format,
that need would diminish as the drawings of plans resulting from the new construction would
supercede the previous drawings. It was suggested to us that the College could have organized
matters differently and that perhaps there was work for the grievor to do on other campuses. It is
for the College to determine whether work is to be done, however. We found no suggestion in
the evidence that the College had decided to organize the work in the way it had for other than
genuine operational reasons, notably the advent of the Super Build project and funding.
36
(We observe in passing that the parties did not agree on the characterization of the work
being undertaken under the Super Build program. At several points during the hearing the Union
raised the suggestion that what was occurring was contracting out, at least so far as the grievor's
work in Physical Resources was concerned. Ms. Wilson was asked in cross-examination whether
she had been aware that the College had contracted out the conversion of blueprints at the Jane
Campus. She was also asked whether she should not have been notified of any contracting out so
that the Union could be advised in accordance with Article 15.8 of the collective agreement. She
responded that the College's position was that what took place in that connection was not a
contracting out of the grievor's position; although Mr. Brant's company was tasked with
converting plans, the work being done was not the work of the grievor's position but was part of
an assessment of the College's facilities and needs for the purposes of Super Build. Also in this
connection the grievor was asked whether the College had given him an opportunity to take a
leave of absence to work for the company which had taken over his functions as a contractor, to
which the grievor replied that there had been no such discussion; this was an apparent reference to
the Letter of Understanding, dated November 16, 2000, attached to the collective agreement.)
However, the board notes that the grievance before us makes no mention of Article 15.8 or the
Letter of Understanding, nor was there evidence that those matters were grieved by the Union on
Mr. Wei's behalf
The outcome of the bumping process was undoubtedly a harsh and disappointing one for
the grievor. It followed an uncomfortable and unsatisfactory relationship with his supervisor and
37
those difficulties were not the grievor's fault. On all the evidence, however, we do not find that
the College acted in bad faith in invoking the layoff and bumping procedure as it did.
As indicated earlier in this award we retain jurisdiction with respect to all issues
concerning the grievor's claim to be entitled to a position in the International Department.
Dated at Kingston, Ontario, this 29th day of October 2003.
irman
I concur
Robert Gallivan, College Nominee
I concur '
Sherrill Mu~ay, U~on Nominee