HomeMy WebLinkAboutRienguette 89-01-19~IEADNOTE:
OPSEU #88C086
RIENGUETTE (OPSEU) vs. CAMBRIAN COLLEGE
Award dated: January 19, 1989 (Brent)
Temporary employees are not excluded from the bargaining unit or
Appendix D of the support staff bargaining unit for community
colleges. An employee replacing someone one indefenite illness
is a temporary employee.
Grivance dismissed.
S.T. Goudge
Gowling & Henderson
BETWEEN:
CAMBRIAN COLLEGE
(Hereinafter referred to as the College)
ONTARIO PUBLIC SERVICE EMPLOYEES' UNION
(Hereinafter referred to as the Union)
AND IN THE MATTER OF THE GRIEVANCE OF R. RIENGUETTE (0PSEU FILE # 88C086)
BOARD OF ARBITRATION: Gall Brent
D. J. Cameletti, College Nominee
Jon McManus, Union Nominee
APPEARANCES:
FOR THE COLLEGE: Michael Hines, Counsel
Susan Pratt, Staff Relations Officer
Darryl Lake, Dean Science & Technology Div.
F0R THE UNION: S.T. Goudge, Counsel
Mary Jane Yeinoff, President Local 656
Rita Rienguette, Grievor
Hearing heard in Sudbury, Ontario on December 1, 1988.
DECISION
This matter arises out of a grievance (Ex. 1) dated March 31, 1988 in
which the grievor alleges that the "College has failed to comply with section
14.1 of the collective agreement with regard to [the grievor's] status as a
full time support staff employee". Neither party raised any preliminary
objection concerning the jurisdiction of the board to hear and determine the
matter, or concerning the arbitrability of the grievance.
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Neither party called any witnesses. They each recited to us facts upon
which they relied to deal with the question of the grievor's status, and
indicated that they were content to rely on those as being correct representa-
tions of the evidence which would have come forward had witnesses been called.
The Union informed us that the grievor is a Chemical Technician and a
1978 graduate of the College. On October 13, 1985 she was hired by the
College as a Technologist B to replace Cathy Begin, who was absent on sick
leave. The grievor worked full-time hours as a Technologist B regularly.
Ms. Begin was at all times a member of the support staff bargaining unit, and
it was originally contemplated that she would be away from work for a couple
of months. The College gave the grievor a series of letters, all but the
first of which set out the dates of the start and end of her appointment. The
grievor worked continuously as a Technologist B until March 31, 1988, the date
of the grievance, and beyond that. We were informed that if she gave evidence
she would say that sometime in early 1988 she formed the opinion that
Ms. Begin would not get better and would never be able to return to work. We
were also told that the grievor and Ms. Begin are personal acquaintances.
The first letter which the grievor received regarding her appointment
(Ex. 3) is dated October 29, 1985 and reads as follows:
This is to confirm your part-time support staff employment with
Cambrian College.
You are employed by the Applied Sciences and Mineral Resources
Technology Department as a Technologist II, from October 11, 1985 on
an as required basis, for a maximum of 37 1/2 hours per week. The
rate of pay will be $13.59 per hour.
Please write and confirm your acceptance of this appointment.
Following this letter the grievor received a series of letters, each of
which gave specific terms for the period of employment. By way of example we
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have reproduced below the letter dated March 30, 1988 (Ex. 8} which also
happened to be the last letter the 9rievor received.
This is to confirm your part-time support staff employment with
Cambrian College.
You are employed by the Applied Science Department as a Technologist
B from March 1, 1988 to May 1, 1988 for a maximum of 35 hours per
week. The rate of pay will be $15.19 per hour.
Please write and confirm your acceptance of this appointment.
The College informed us that Ms. Begin has a back problem which has
existed for some years, and that the grievor was employed in 1985 on a
temporary basis to replace a bargaining unit employee, Ms. Begin, who was
absent on sick leave. The College indicated that it relied on Appendix D of
the collective agreement as being a complete code covering the employment of
the grievor. In March, 1988 Ms. Begin was still on sick leave. In 1985 the
College anticipated that Ms. Begin would be away for an indeterminate period
of time, and its evidence would be that it was the clear understanding of all
concerned that the grievor would be there until Ms. Begin was able to return,
hence the indefinite nature of the original letter of appointment (Ex. 3}.
The College also produced internal documents (Exs. 4, 5 & 6) which
indicate that the grievor was there as a replacement for Ms. Begin. Its
evidence would be that the understanding that the grievor was only employed as
a replacement for Ms. Begin until the latter's return was confirmed and
reconfirmed on many occasions in conversations between the grievor and the
Dean and the Chairman. The College was receiving a series of doctor's notes
regarding Ms. Begin (Exs. 7A-7C). It said that, had the grievor informed
herself, she would have learned that in March, 1987 the College was informed
by Ms. Begin's doctor that she would return to work in September, 1987
(Ex. 7A), that in September, 1987 the College was informed by Ms. Begin's
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doctor that she would be fit to work in January, 1988 (Ex. 7B), and that in
January, 1988 the doctor told the College that she would be able to work in
three or four months (Ex. 7C). While not accepting that the grievor's view
that Ms. Begin would not return had any significance, the College said that
this view was inconsistent with the facts and was never conveyed to the
College so that the College could disabuse her of that notion.
Ms. Begin did return to work on October 3, 1988, and the grievor was
given notice that her position was being terminated on that date by letter
dated September 29, 1988. The grievor was paid until October 15, 1988.
We were told that during the period of her employment the grievor would
have been treated according to the provisions of Appendix D regarding the
provision of benefits, etc. We were also told that the Dean would testify
that the College has a concern regarding the conversion of a temporary
appointment to a permanent one, in that it increases the authorized staff
complement by one, which is not contemplated in the budget. We were told that
if this occurred there might have to be layoffs, and that it was the College's
position that the determination of the size of the staff complement was a
right of management.
The Union's submissions in summary are that Appendix D does not apply to
this case, and that as a matter of law the only conclusion that can be drawn
from the collective agreement, the Colleqes Collective Barqaininq Act
(hereinafter referred to as the Act) and the jurisprudence is that the grievor
is a permanent employee. In relation to the first argument the Union says
that for Appendix D to apply two conditions must be met: (1) the employment
must be on a temporary basis, and (2) the person so employed must be replacing
an employee absent on sick leave, etc. The Union accepts that the second
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condition has been met, but argues that the hiring was not temporary, that is,
the grievor was not hired for a definite fixed term, but rather for an
indeterminate period. It argues that the logic of the situation demands that
the College be prevented from hiring employees who are not subject to the
collective agreement even though they are in effect long term employees who
have built up a sense of permanency about the job.
In relation to the second argument the Union assumes that Appendix D does
apply to the 9rievor. It then raises the question of whether Appendix D was
intended by its drafters to apply to people who are outside the bargaining
unit, and answers that question in the affirmative. The Union then asserts
that as a matter of law the Act has set out the bargaining unit and has
provided that any conflict between the Act and the collective agreement shall
be resolved in favour of the Act. It submits that as a consequence the
parties are precluded from excluding temporary employees from the bargaining
unit and the 9rievor must be considered as a bargaining unit employee with the
rights of a full-time member of the bargaining unit since her contract of
employment is incompatible with the collective agreement.
The College makes several arguments. Regarding the Union's second
· argument, and assuming that it was both the intention and the act of the
parties to exclude people covered by Appendix D from the bargaining unit, the
College's submission is that the argument confuses bargaining rights with
representation rights recognized in the collective agreement. It argues that
despite the limits of the bargaining unit for which the Union is 9ranted
bargaining rights the parties can agree upon a scope clause which does not
have the same limits. It also argues that the Act contemplates collective
agreements which apply to parts of the bargaining unit as defined in the Act,
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and.that the Act provides that the global bargaining rights be recognized but
not that they must be exercised.
The College asserts, however, that the employees are bargaining unit
employees and that Appendix D is not intended to apply to people who are
outside the bargaining unit. It asserts that Article 1.1 of the collective
~greement does not exclude temporary employees who are hired to replace
~mployees on sick leave. It further argues that, if the Act prohibits the
parties from defining a bargaining unit which differs from that set out in the
Act, the collective agreement should be interpreted in a way which assumes
that the parties intended not to make an illegal bargain. The College points
out that the Union has asserted in the past that Appendix D employees are in
the bargaining unit, and that the College has never disputed that position.
The College then says that the only question is whether the 9rievor was
properly hired as a temporary employee and treated properly within the scope
of Appendix D. Its position is that, while the 9rievor was hired to replace
an employee who was away for an indeterminate period of time, one must
distinguish between appointments which are truly indefinite and those which
are indefinite but contemplated to be for an ascertainable term. It argues
that any term which is either fixed or ascertainable is in fact temporary and
understood to be so by everyone, including the 9rievor. It points out that
from the beginning of her period of employment it was made clear to the
9rievor and known to everyone that there was an ascertainable end point to the
grievor's employment.
The College also takes the position that it would make no sense to
require all temporary employment to be for fixed terms, since in the case of
sick leave, for example, the duration of the absence may not be known at the
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time of employment. It argues that to require a fixed term would be to amend
Appendix D. It further submits that even if the Union is correct about the
effect of the original appointment letter not fixing a term, the fact that the
subseqUent letters all fixed definite terms and there was no grievance that
the 9rievor was being turned into a temporary employee indicates that the
parties always understood that the grievor was a temporary employee who was
always treated as an employee under Appendix D of the collective agreement.
Its position is that the grievor and everyone else concerned knew that the
grievor was only being employed until Ms. Begin returned to work, and that the
only thing which changed was her subjective impression of the situation.
The College also submits that the Union is estopped by its conduct from
making the claim which it is making.
The Union asserts that there can be no estoppel because there has never
been any representation by the Union or the grievor regarding this matter, and
there is no evidence of any detriment. It also says that the Act prohibits
the parties from bargaining down from their statutory rights. It also argues
that in order to meet the condition in Appendix D the hiring must be for a
fixed term because if temporary means the length of the sick leave it renders
the words "temporary basis" redundant.
In addition to the Act and the collective agreement, the parties referred
us to the following authorities: Centennial ColleGe and OPSEU (Kositsk¥
Grievance), (1987) unreported (Samuels); Fanshawe ColleGe and OPSEU (Schidowka
Grievances), {1987) unreported (Brown); Northern College and OPSEU {Beddard
Grievance), (1982) unreported (McLaren), Maple Leaf Monarch Co. and Windsor .
Grain Processors Union, Local 1 {1984), 13 L.A.C. (3d) 307 (Gorsky); and Globe
and Mail Ltd. and Toronto Newspaper Guild, Local 87 {1974), 6 L.A.C.(2d) 70
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(Brown) .
Those portlons of the Act and of the collective agreement to whlch we
were referred are set out below:
Colleges Collective Bargaining Act, R.S.O. 1980, C. 74
1. In thls Act and in the Schedules,
(b) "bargaining unit" means the academic staff
bargaining unit of employees or the support
staff bargaining unlt of employees set out in
Schedules i and 2;
48. - (1) No agreement, decision of an arbitrator, board of
arbitration or selector shall contain any term that would require
either directly or indirectly for its implementation the enactment
or amendment of legislation.
(2) where a conflict appears between any provision of an
agreement and any provision of any legislation, the provision of the
legislation prevails.
51. An agreement is binding upon the Council, the employers and
the employee organization that is a party to it and upon the
employees in the bargaining unit covered by the agreement.
52. Every agreement shall be deemed to provide that the
employee organization that is a party thereto is recognized as the
exclusive bargaining agent for the bargaining unit to which the
agreement applies.
SCHEDULE 2
The support staff bargaining unit includes the employees of all
boards of governors of colleges of applied arts and technology
employed in the positions or classifications in the office,
clerical, technical, health care, maintenance, building service,
shipping, transportation, cafeteria and nursery staff but does not
include,
(i) foremen,
(ii) supervisors,
(iii) persons above the rank of foreman or supervisor,
(iv) persons employed in a confidential capacity in
matters related to employee relations or the
formulation of a budget of a college of applied
arts and technology or of a constituent campus
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of a college of applied arts and technology
including person employed in clerical, steno-
graphic or secretarial positions,
(v) other persons employed in a managerial or
confidential capacity,
(vi) persons regularly employed for not more than
twenty-four hours a week,
(vii) students employed in a co-operative educational
training program undertaken with a school,
college or university,
(viii) a graduate of a college of applied arts and
technology during the period of twelve months
immediately following completion of a course of
study or instruction at the college by the
graduate if the employment of the graduate is
associated with a certification, registration or
other licensing requirement,
(ix) a person engaged for a project of a non-
recurring kind,
(x) a person who is a member of the architectural,
dental, engineering, legal or medical profes-
sion, entitled to practise in Ontario and
employed in a professional capacity, or
(xi) a person engaged and employed outside Ontario.
Collective Agreement
1.1 Exclusive Bargaining Agent
The Union is recognized as the exclusive bargaining agent for all
Support Staff employees of the Colleges, save and except:
-- foremen and supervisors;
-- persons above the rank of foreman or supervisor;
-- employees performing duties that require the use of
confidential information relating to employee relations
and the formulation of the College budget or the Campus
budget, as the case may be;
-- persons regularly employed for twenty-four (24) hours per
week or less and persons employed temporarily during the
College vacation periods;
-- students employed on a cooperative educational training
program, with a school, college or university;
-- graduates of the College employed for up to twelve (12)
months following completion of their courses and as-
sociated with, certification, registration or other
licencing requirements;
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-- persons hired for a project of a non-recurring kind.
APPENDIX D
TEMPORARY EMPLOYEES
1. The terms of this Appendix apply to person employed on a
casual or temporary basis to replace bargaining unit
employees absent due to vacation, sick leave or leaves of
absence. No other provision of the Collective Agreement
shall apply to such persons unless otherwise stated in
this Appendix.
2. The rate to be paid to such an employee shall be the
appropriate rate applicable to the classification of the
replaced employee, subject to progression steps applicable
to the replacing employee, where appropriate.
3. The replacing employee shall be subject to the deduction
and remittance of Union dues, as provided in Article 5.4
of the Agreement.
4. The Union shall be notified at the commencement of
employment, and upon the expiry of the term of employment.
5. In addition to the hourly rate of pay, the employee shall
receive and additional 4% in lieu of all fringe benefits,
including vacation and holiday pay.
6. The employee may be released by the College before the
termination date of any term of employment, for replace-
ment need changes or operational requirements.
Without deciding the issue, it would appear that, broadly speaking, the
Union's argument concerning the effect of the Act on the ability of the
parties to redefine the bargaining unit coincides more closely with our
understanding of the relationship between the Act and the bargaining unit as'
set out in the collective agreement. It may be that the parties could agree
to have more than one collective agreement for support staff so long as they
covered the entire bargaining unit as set out in the Schedule to the Act;
however, it is not necessary for us to determine any issue of this sort unless
we determine that the parties excluded temporary employees from the bargaining
unit.
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When Schedule 2 of the Act and Article 1.1 of the collective agreement
are compared, it is obvious that the parties have added no new exclusions to
the bargaining unit as defined in Schedule 2. Article 1.1 on its face does
not exclude temporary employees save for those temporary employees who are
employed during vacation periods. Notice that that exclusion does not refer
to temporary employees who are employed for replacement purposes, but only to
those who are employed "temporarily during the College vacation periods".
Given the terms of Article 1.1, it is our view that the grievor was a member
of the bargaining unit represented by the Union and covered by the collective
agreement since there is no exclusion in Article 1.1 which specifically
applies to her position. What then does Appendix D do? It does not operate
to exclude the grievor's position from the bargaining unit, either because as
a matter of law it cannot conflict with the Act, or because there are no clear
words to suggest that it is intended to operate as an additional exclusion to
those set out in Article 1.1. It simply sets out the terms of the collective
agreement which the parties have agreed will apply to the employees who fall
within the definition of temporary employees. In other words, the parties
have bargained concerning the terms and conditions of employment of temporary
employees; they have agreed that they shall differ from the terms and
conditions of employment of permanent employees; and their agreement is set
out in Appendix D. There is nothing unusual or illegal per se for employers
and unions to agree that the terms and conditions of employment of full-time
permanent employees are not appropriate to those who are not members of that
group, and to set out separate more appropriate terms for those other employ-
ees. It is therefore our view that the parties have not excluded temporary
employees from the bargaining unit, but have set out their bargain regarding
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the terms and conditions of employment of those employees separately in
Appendix D.
As the parties have indicated, in order to come within Appendix D an
employee must meet the test of temporary employee as set out in paragraph 1.
Those conditions are (a) employment on "a casual or temporary basis", and
(b) employment "to replace bargaining unit employees absent due to vacation,
sick leave or leaves of absence". There is no doubt here that the grievor was
employed to replace a bargaining unit employee who was absent on sick leave.
Based on the evidence placed before us, we must conclude that she knew from
the commencement of her employment that her job was only to last as long as a
replacement was needed for Ms. Begin, that is, for the duration of Ms. Begin's
sick leave. Therefore, even though her initial letter of employment (Ex. 3)
did not state a fixed term for the period, the facts as presented to us
indicate that the intent of all concerned was not to offer the grievor a
permanent position but one which was determinable at some unknown date. The
question placed before us is whether the absence of a fixed term in that
initial appointment is fatal to any contention that the grievor was always a
temporary employee.
In our view the absence of a fixed term does not necessarily indicate
that the appointment was to be permanent. The provision does not specify that
employees must be employed for fixed terms, but rather that they be employed
on a temporary basis. Certainly a fixed term of employment indicates that the
job is not permanent; however, a contract of employment to replace an absent
employee for the duration of the absence is also not permanent, because the
period of employment is both limited by a condition subsequent which is
expected to occur and is intended to come to an end when the condition
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subsequent, the return of the absent employee, is satisfied. What is key to
the determination of whether the failure to specify a term indicates that the
employee is to be permanent or temporary is surely the understanding of the
parties regarding the term of the employment. In this case all indications
point to the College and the grievor both considering that from its inception
their relationship was to last only as long as Ms. Begin was absent on sick
leave and not to be a permanent relationship. The facts that no grievances
were filed once the College began issuing letters showing fixed terms, that
the grievor was treated as an employee under Appendix D without grievances
being filed, and that this grievance was only filed once the grievor had
formed the impression that Ms. Begin would not be returning to work all are
consistent with the conclusion that the relationship between the College and
the grievor was regarded as being temporary in nature in its inception and for
its duration. There is no fact before us that is inconsistent with that
conclusion.
We agree with the statement in Maple Leaf Monarch (supra) that in order
for there to have been a change in status from temporary to permanent there
would have to be some action on the part of the College to effect the change.
There was no such action here. Therefore, it is our conclusion that the
grievor began her employment as a temporary employee and remained a temporary
employee for the entire period of her employment.
Under the circumstances it is not necessary for us to make any determina-
tion regarding estoppel.
We can sympathize with the Union's position that where a bargaining unit
employee is on a long, indeterminate sick leave and is being replaced by a
single temporary employee for the entire length of the absence, the effect can
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be to have a long term employee who is not subject to the collective agreement
and who builds up an expectation of permanence. The parties could easily have
agreed to limit the application of Appendix D to fixed terms or to a maximum
term; however, they chose simply to refer to the more general concept of
employment on "a temporary basis to replace bargaining unit employees absent"
for the reasons set out. In choosing to include sick leave, in particular,
they must have contemplated that, the duration of illness often being indeter-
minate and unpredictable, occasions such as the one before us would arise and
would be no less temporary simply because their duration could not be foreseen
at the beginning of the leave.
For all of the reasons set out above, we find that the grievor was a
temporary employee at all material times and the grievance is denied.
Gall Brent
I concur / ~t , D.J. Ca~eletti, College Nomine~-
I ~ / dissent McManus, Union Nomine