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HomeMy WebLinkAboutLanthier 88-03-18Concerning an arbitration Between: Algonquin College and Ontario Public Service Employees Union Grievance of L. Lanthier, discrimination Board of Arbitration J. W. Samuels, Chairman R. J. Gallivan, College Nominee R. Cochrane, Union Nominee For the Parties Union S. Ballantyne, Counsel L. Lanthier, Grievor B. Allen, Local President L. Bamabe, Chief Steward College A. Burke, Counsel C. Warburton, Director, Labour Relations G. Esnard J. Muldoon P. Imbesi Hearing in Ottawa, February 17, 1988 At the hearing into this matter on February 17, 1988, the parties asked first for several preliminary rulings, and after the Board gave its rulings, the parties settled. One term of the settlement provided that the Board should give written reasons for its preliminary award. These are our written reasons. Louise Lanthier commenced employment with the College in October 1'985, as a part-time cashier in several cafeterias. In August 1986, she began work as a full-time short order cook, following her successful application for a posted position. In October 1986, she informed her lead hand that she was pregnant and her baby was due in March 1987. On November 18, 1986, she received a letter from the Manager of Food and Beverage Operations informing her that her last day of employment with the College would be December 12, 1986. And her last day of work at the College was December 12, 1986. On December 22, 1986, she filed her grievance, claiming that the College had violated Article 2.3 (which prohibits the College from discriminating against employees on various bases), and asked to be immediately re-hired with all benefits and retroactive pay. Throughout the following grievance procedure the College maintained that she had no right to grieve dismissal because she was a probationary employee. The grievance proceeded to arbitration. In late January 1988, the College notified the Union that it was of the view that the grievance was filed under Article 18.7 (grievances against dismissal and suspension) and was untimely because it was not filed within fifteen days after the notice of termination, as is required under Article 18.7. This issue had never been raised before. Then, several days before the hearing, counsel for the Union informed the College that she would argue that the grievor was not a probationary employee in December 1986, and therefore she would argue that there was no just cause for the dismissal. The issue of just cause had never been raised before. At the hearing, the College acknowledged that even a probationary employee has the right to grieve a violation of Article 2.3. And the Union acknowledged that the grievor could not raise just cause if she was a probationary employee. We were asked to rule on several preliminary matters arising from these developments: a. Can the Union now raise the issue of the grievor's status and the consequent issue of just cause? b. Can the College now raise the issue of timeliness and is the grievance untimely? c. Who bears the onus of proof in this case? We ruled: 1. The grievance itself circumscribes our jurisdiction. Article 18.6.1.1, which sets out Step 1 of the grievance procedure, provides that the grievance "shall be sufficiently specific to identify the alleged violation of the Collective Agreement". The grievor claimed that the COllege had violated Article 2.3. Her grievance was not that the dismissal was unjust, but that the College had discriminated against her on the basis of improper grounds. (Mr. Cochrane dissented on this point---he would have allowed the Union to raise now the issue of just cause.) 2. Because the grievance is based on Article 2.3, it makes no difference whether the grievor was a probationary employee, or had passed her probationary period. Therefore, the grievor's status is not an issue before us. 3. The Union has the onus of showing a prima facie case of discrimination. 4. Then the College has the onus of rebutting the primafacie case. 5. Because this is not a grievance against dismissal, Article 18.7 is not relevant. This is an ordinary grievance, and the time limits are set out in Article 18.6.1---"within fifteen (15) days after the circumstances giving rise to the complaint have occurred, or have come or ought reasonably to have come to the attention of the employee". The grievor really had no complaint until the College went through with its decision to end her employment. It was the dismissal itself which triggered the claim of discrimination. The dismissal took place on December 12, 1986, and the grievance was filed ten days later. Therefore, the grievance was within the required time. (Mr. Gallivan dissented on this point---he would have found the grievance to be untimely, because in his view it should have been filed within fifteen days of the letter of November 18, 1986.) And then the parties settled this matter. Done at London, Ontario, this ] ~'ff2 day of /~a~e.~ ,1988. Samuels, Chairman R.-J~-G~minee R. Cochrane, Union Nominee