HomeMy WebLinkAboutLetho 93-05-26 In the Matter of an Arbitration
Between:
Confederation College, Local 731
(Employer)
-and-
Ontario Public Service Employees Union
(Union)
And In the Matter of Elizabeth~Letho
Arbitrator: M. Brian Keller
Employer Nominee: Mr. Jerry Courtney
Union NOminee: Ms. Sherrill Murray
Appearances: For the Employer: Wallace Kenny
For the Union: George Richard
Hearing: Thunder Bay, April 22, 1993.
AWARD
The grievor alleges "wrongful dismissal or constructive
termination due to harassment on the job and high stress level
which caused me to accept an undeserved layoff". The grievance
is dated November 9, 1992.
The employer takes the position that the grievance is untimely.
The hearing dealt with this preliminary issue only.
The grievor was employed by the College from March 1991 as a
Program Officer. Between March 1991 and August 1992 when she was
laid off she worked at three locations, Northern, Marathon and
Thunder Bay. She did not work in January 1992 as she was on sick
leave. On her return she was given a letter informing her of her
impending lay off on April 16, 1992. It was agreed by the union
that there were proper grounds for the lay-off and that the
grievor was the junior employee.
In February, the grievor accepted a six month re-assignment as
Northern Program Officer effective April 1992. In March her
lay-off date was changed from October to September and in April
she was reclassified and her lay off date again changed, this
time to August 19, 1992. The union acknowledged that there was
nothing improper about the changed dates of lay-off.
On May 13 she was advised that her lay-off notice was rescinded
as new opportunities were identified which resulted in the need
to continue her services with the College. The grievor wrote the
College on May 14 rejecting the offer of continued employment and
accepting the lay-off effective in August. On June 29 the
College put the grievor to the election of severance pay or
recall rights as provided in the collective agreement. In a
letter dated July 8 she chose severance pay. She was laid off
effective August 19.
A letter was sent to Mr. Roy Murray, President of the College on
August 28 by the grievor asking to meet to discuss some concern.
A meeting took place at which time the grievor raised issues of
alleged harassment in the workplace and mismanagement by
officials. Mr. Murray responded on October 19 indicating the
complaints should have been dealt with while she was an employee
of the College. The letter also indicated that the grievor had
been given a disciplinary notice on December 5, 1991 for use of
marijuana in a College-leased vehicle. As a result, it went on
to say, her performance was being closely monitored by her
supervisor.
The grievor, on receipt of the letter on October 26 sought
independent advice as well as that of her union. She filed her
grievance on November 9. The union had previously been
approached by the grievor in May regarding her feeling that she
was being harassed but she chose not to file a grievance prior to
her lay-off on this or any other matter.
On behalf of the grievor it was argued that she meets the 15 day
mandatory time limit provided in the collective agreement because
she filed her grievance within 15 days of receiving the October
letter wherein she was led to believe for the first time that the
action taken by the College and the treatment accorded her in
moving her to various positions and closely supervising her were
disciplinary. It was acknowledged that there was no bad faith
involved in the lay-off, that there was a lack of work, and that
she was the most junior employee.
The College takes the position that regardless of what date is
used - the May acceptance of lay-off, the June election of
severance, the August date of lay-off or even September 11, the
grievance falls outside the mandatory 15 day period provided in
the collective agreement. It was submitted that the grievance
alleges she was forced to accept a lay-off in May and therefore
had to be filed in a timely fashion in relation to the actions
surrounding the lay-off. The Board, it was argued is without
discretion to extend the time limit.
Finally it was submitted that even if the matter can be construed
as a constructive dismissal, the time limit runs from May 15 when
the grievor elected lay-off rather than another position.
It is trite law that under this collective agreement the time
limit for filing a grievance is mandatory. It is also trite law
that the time limits can not be extended on varied and grievances
not pursued within the time limits provided in s. 1.8.2.1 will be
considered abandoned.
In the instant case it is evident on the facts that the grievor
is beyond the limits provided in the agreement, even if one uses
August 18, her last day of employment. The statement regarding
discipline in Mr. Murray's letter does not alter the essence of
the issue to be dealt with by the Board. Whether it was a
constructive dismissal or a lay-off the grievor was obliged to
deal with them sooner than she did.
Given that the Board can not alter, vary or amend the collective
agreement we have no option but to find the grievance is
untimely, that we have no jurisdiction ~n this matter and that
the grievance is accordingly denied.
Nepean, this ~ day of May, 1993.
1 concur M.B. Keller, Arbitrator
I concur S. Murray, Union Nominee
J. Courtney, Employer Nominee