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HomeMy WebLinkAboutLouza 99-01-18 IN THE MATTER OF AN ARBITRATION BETVVEEN: GEORGE BROWN COLLEGE - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION GRIEVANCE OF M. LOUZA BOARD OF ARBITRATION: JANE H. DEVLIN CHAIR ROBERT J. GALLIVAN COLLEGE NOMINEE BRIAN SWlTZMAN UNION NOMINEE PEIGI R. ROSS, FOR THE COLLEGE GEORGE RICHARDS, FOR THE UNION OPSEU FILE NO.: 96D695 HEARING DATES: APRIL 11, 1997 FEBRUARY 25, 1998 WRITTEN SUBMISSIONS: SEPTEMBER 1, 1998 SEPTEMBER 14, 1998 SEPTEMBER 24, 1998 ! The grievance which was filed by Marcel Louza involves a claim that he was improperly laid off. By way of relief, the Grievor requests reassignment to a position within the College pursuant to Article 27.06 of the collective agreement. Prior to his layoff in September, 1996, the Grievor was classified as a full-time Professor. The hearing in connection with Mr. Louza's grievance began on April 11, 1997 and was scheduled to continue on February 25, 1998. On that day, the hearing was adjourned as one of the incumbents, whom the Grievor claimed a right to displace, was unable to attend due to a family emergency. However, at that time, the College advised the Union that in its submission, the Board of Arbitration lacked jurisdiction to deal with Mr. Louza's grievance as he had retired from employment effective September 30, 1996. Alternatively, the College maintained that in view of the Grievor's retirement, the issue raised in the grievance is moot. Although the College also contended that the Board lacked jurisdiction to deal with the grievance as the Grievor had elected to accept severance, in view of an undertaking by the College in the spring of 1997 not to object to the arbitrability of a layoff grievance on this basis, the College subsequently withdrew this latter objection. The parties agreed to address the remaining objections by way of written submissions. 2 For purposes of these objections, the parties provided the Board with the following Agreed Statement of Fact: 1. The Grievor, Mr. Marcel Louza, ["Grievor"] was employed as an Instructor in the Hospitality Department of George Brown College ["College" or "Employer"]. 2. The Grievor was notified by way of a letter dated February 27, 1996 that his position as a full-time faculty member had been declared redundant and that effective May 27, 1996 he would be laid off from the College. The Grievor was informed that should he wish to waive his rights to recall and elect severance pay he should advise the College of his intentions in wdting prior to August 25, 1996. 3. The Grievor grieved his layoff by written notice dated March 5, 1996. (Tab l) 4. The Step 1 Grievance Reply was provided by the College on April 3, 1996. A Step 2 Grievance Hearing in this matter was held May 6, 1998. 5. By way of a letter dated May 28, 1996 from Anne Lillepold, Manager Labour Relations Academic, the Grievor was advised that his layoff date had been extended to September 5, 1996 in order to permit retraining pursuant to Article 27.06(viii)(c) of the collective agreement. The Grievor was further advised that the date by which he was to notify the College of his intention to elect severance or maintain recall rights was also extended until December 4, 1996. (Tab 2) 6. The grievance was referred to arbitration on June 13, 1996. 7. On or about June 17, 1996 the College was advised that the Grievor would be retiring from the College as of September 30, 1996. The Grievor did, in fact, elect early retirement and commenced receipt of pension benefits as of October 1, 1996. (Tab 3) 8. The terms of the Grievor's retirement and pension plan are set out in the Colleges of Applied Arts and Technology Pension Plan (C.A.A.T. Plan) and the definitions therein. (Tab 4) 3 9. On August 9, 1996 the Grievor gave notice in writing that he was waiving his right to recall and accepting severance. The Grievor was paid $23,881.65 as a retiring allowance or 39% of his salary as required by Article 29.10 B. (Tab 5) 10. The arbitration hearing commenced on April 11, 1997 and continued on February 25, 1998. The hearing on February 25, 1998 was adjourned due to the inability of Mr. Jim Rudnick to attend as a result of a family emergency. 11. On February 25, 1998 counsel for the College raised the issue that in light of the Grievor's retirement from the College and election to accept severance this Board of Arbitration is without jurisdiction to deal with the subject matter of the grievance, or in the alternative that the grievance was moot. 12. In light of certain written representations made by the College to the Union in respect of the College's general position not to raise the issue of whether or not a faculty member chose severance in a standard layoff grievance, the College withdraws its objection to the jurisdiction of the Board of Arbitration on the basis of the Grievor having accepted severance.. The College expressly retained its right to argue the issue of acceptance of severance as it relates to any remedy awarded by the Board of Arbitration. (Tab 6) 13. The College maintains its objection to the jurisdiction of the Board of Arbitration given the Grievor's retirement from the College. In support of their submissions, the parties made reference to the following provisions of the collective agreement: Article 6 MANAGEMENT FUNCTIONS 6.01 It is the exclusive function of the Colleges to: (i) Maintain order, discipline and efficiency; (ii) Hire, discharge, transfer, classify, assign, appoint, promote, demote, lay off, recall and suspend or otherwise discipline employees subject to the right to lodge a grievance in the manner and to the extent provided in this Agreement; (iii)Manage the College and, without restricting the generality of the foregoing, the right to plan, direct and control operations, facilities, programs, courses, systems and procedures, direct its personnel, determine complement, organization, methods and the number, location and classification of personnel required from time to time, the number and location of campuses and facilities, services to be performed, the scheduling of assignments and work, the extension, limitation, curtailment, or cessation of operations and all other rights and responsibilities not specifically modified elsewhere in this Agreement. Article 17 SHORT-TERM DISABILITY PLAN (STD) Expiry of Credits 17.01 G Subject to 17.01 H, upon retirement, layoff or termination of employment, any credits standing in the name of employee shall be cancelled and shall have no effect. Article 19 OTHER HEALTH INSURANCE PLANS · · o Post Retirement Extended Health Coverage 19.02 The College shall include eligible retired employees in the Extended Health Plan at the option of the employee under the following conditions: 19.03 G The Colleges agree to include eligible retired employees in the Dental Plan (Appendix III) at the option of the employee under the following conditions: Post Retirement Life Insurance Plan 19.09 Notwithstanding Article 34.01, effective October 1, 1992, the College shall make available to a retiring employee, at the time of retirement, life insurance coverage to age 75 in the amount of $10,000, with the retiree to pay 100% of the premium. It is understood that for experience rating purposes, active employees and retirees shall be considered to constitute one group. Article 27 JOB SECURITY 27.03 E Seniority shall be lost and employment deemed terminated if: (iii)an employee resigns or leaves the employ of the College· Article 28 EMPLOYMENT STABILITY 28.05 The functions of the CESC shall include the making of recommendations with respect to short-term strategies to enhance employment stability, having regard to available resources. Activities may include, but not necessarily be restricted to: (ii) developing strategies including restraining, early retirement, alternate assignments, secondments, professional leaves, employee career counselling, job sharing, professional development, pre-retirement planning and voluntary transfer. Article 29 EXTRAORDINARY FINANCIAL EXIGENCY 29.03 During the 30 calendar day period following such notification, the CESC shall be given an opportunity to present its recommendations or advice on measures to deal with the extraordinary financial exigency that may include: (ii) whether the utilization of other means such as normal retirement, voluntary early retirements, leaves or transfers can postpone or alleviate the need to discontinue appointments; Article 32 GRIEVANCE PROCEDURES Grievances 32.03 Failing settlement of a complaint, it shall be taken up as a grievance (if it falls within the definition under 32.12 C) in the following manner and sequence provided it is presented within seven days of the immediate supervisor's reply to the complaint. 32.04 D The arbitration board shall not be authorized to alter, modify or amend nay part of the terms of this Agreement nor to make any decision inconsistent therewith; nor to deal with any matter that is not a proper matter for grievance under this Agreement. 32.12 C "Grievance" means a complaint in writing arising from the interpretation, application, administration or alleged contravention of this Agreement. Reference was also made to the following provision of the Colleges Collective Bargaining Act: PART II NEGOTIATIONS 3. Negotiations shall be carried out in respect of any term or condition of employment put forward by either party, except for superannuation. It was the submission of Ms. Ross, on behalf of the College, that the Grievor elected to retire and that his decision in this regard is not subject to review by a Board of Arbitration. It was further submitted that the Grievor's retirement resulted in a loss of seniority and severance of the employment relationship. Moreover, as a retired employee, the Grievor retains only limited 7 rights, such as the right to pension and to participate in specified benefits plans. Accordingly, in view of the Grievor's retirement, it was submitted that there is no longer a difference between the parties relating to the interpretation, application or alleged violation of the collective agreement. As a result, the Board is without jurisdiction to decide the grievance. Furthermore, Ms. Ross maintained that as the objection raised by the College involves a matter going to the Board's jurisdiction, it cannot be waived and may be raised at any time. In the alternative, Ms. Ross submitted that the issue raised in the grievance is moot as any decision rendered by the Board of Arbitration will have no practical effect. In particular, it was contended that such a decision will not alter the Grievor's employment relationship with the College which was brought to an end by his retirement. In the result, Ms. Ross submitted that on this basis as well, the grievance ought to be dismissed. It was the submission of Mr. Richards, on behalf of the Union, that the Grievor elected early retirement in order that he would have a source of income in the event his grievance was unsuccessful. Accordingly, it was contended that the Grievor intends to resume active employment should the Board determine that he was improperly laid off. Moreover, Mr. Richards submitted that having failed to raise any objection of the Board's jurisdiction at the outset of the hearing, the College is estopped from doing so at this point. In any event, Mr. Richards contended that as the College's objection is procedural in nature, it must be taken to have been waived. Mr. Richards further contended that the Grievor's right to contest his layoff crystallized at the time the grievance was filed and that a subsequent event such as his retirement cannot oust the Board's jurisdiction to deal with the matter. Moreover, Mr. Richards submitted that the College ought to have inquired as to whether the Grievor intended to forego his grievance by electing early retirement and that it failed to do so. In fact, it was submitted that in the circumstances, it was reasonable for both the Grievor and the Union to believe that the College would treat early retirement in the same manner as an election to accept severance which did not affect the arbitrability of the grievance. Finally, Mr. Richards contended that the issue in dispute does not relate to Mr. Louza's retirement but rather to his layoff and that if the Board determines that the layoff was improper, Mr. Louza's retirement would be void and he would return to work. As to the College's submission that the issue raised in the grievance is moot, Mr. Richards contended that the Grievor retired under "economic duress" and that his decision cannot be regarded as indicative of an intention to sever the employment relationship. Mr. Richards also contended that as the 9 'College failed to explain to the Grievor the consequences of his decision to retire, it cannot be said that he gave up the right to pursue his grievance. By way of reply, Ms. Ross submitted that the College raised its objections as soon as its labour relations representative became aware of the Grievor's retirement. Ms. Ross further contended that there was no obligation on the College to advise the Grievor of the consequences of his decision to retire and that retirement, like resignation, is a voluntary act on the part of the employee, which is commonly understood to involve severance of the employment relationship. Moreover, it was submitted that the College's undertaking not to object to the arbitrability of a layoff grievance based on an employee's election to accept severance does not extend to an employee's decision to retire. Furthermore, as that decision is not subject to review, a Board of Arbitration has no jurisdiction to void Mr. Louza's retirement as proposed by the Union. Decision: The issue to be determined is whether, in view of Mr. Louza's retirement, the Board has jurisdiction to deal with his grievance alleging improper layoff or, alternatively, whether the matter is moot. In this regard, the Agreed ]0 Statement of Fact indicates that the Grievor was notified in February, 1996 that he would be laid off effective May 27th. His layoff date was subsequently extended to September 5th to enable him to engage in retraining to which he was entitled under Article 27.06(viii)(c) of the collective agreement. In the meantime, on March 6th, Mr. Louza filed a grievance claiming improper layoff, which was referred to arbitration on June 13th. On or about June 17th, the College was advised that the Grievor would be retiring from employment effective September 30th. Prior to his retirement, on August 9th, the Grievor notified the College that he wished to accept severance and waive his right to recall. As a result, pursuant to ^rticle 27.10 B, the Grievor received $23,881.65 or 39% of his salary by way of a retiring allowance. Based on representations made by the College to the Union, it was acknowledged that the Grievor's acceptance of severance did not affect the Board's jurisdiction to deal with his layoff grievance although the College reserved the right to raise the issue with respect to the matter of remedy. The Grievor subsequently elected early retirement and began to receive pension benefits effective October 1, 1996. His pension entitlement is governed by the Colleges of Applied Arts and Technology Pension Plan which defines the "early retirement date" of a member as "the first of the month following the date of cessation of membership or employment prior to Normal Retirement Date where the Member is eligible to receive the Member's pension benefit in the form of a life annuity commencing in the month following cessation of membership or employment". The hearing into the merits of Mr. Louza's layoff grievance began on April 11, 1997 and was scheduled to continue on February 25, 1998. On that date, the hearing was adjourned due to the unavailability of one of the incumbents and at that time, the College advised the Union that it objected to the Board proceeding with the hearing on the merits. As indicated previously, Mr. Louza's grievance claims that he was improperly laid off and requests, by way of remedy, that he be reassigned to a position within the College. However, subsequent to the filing of the grievance, Mr. Louza elected early retirement which is generally understood to involve a severance of the employment relationship subject, of course, to the retiree's right to receive pension benefits and to participate in health and welfare plans expressly provided for in the collective agreement. Nevertheless, as pointed out by the Union, not all grievances are extinguished by the subsequent retirement of the grievor. By way of example, in ]2 International Union, United Automobile. Aircraft and Agricultural Implement Workers of America. (UAW - CIO) in re The Ford Motor Company of Canada, Limited (1952), 4 L.A.C. 1218 (Lang), the grievor claimed'three hours' call-in pay for February 25, 1952. Although the grievor retired from employment prior to the arbitration hearing, the Arbitrator determined that his rights, which arose under the collective agreement, were not lost by the cessation of employment and proceeded to hear the grievance on its merits. In the Board's view, however, the claim in the Ford Motor Company award (and claims of a similar nature) can be distinguished from the claim advanced by the Grievor in this case. In the Ford Motor Company award, the grievor's claim related to his entitlement to call-in pay during a period when he was actively at work and his right to that payment was not affected by his subsequent decision to retire. In this case, in contrast, the Grievor alleges that he was improperly laid off and claims a right to return to active employment. In the meantime, however, subsequent to the filing of the grievance, he elected early retirement, thereby severing the employment relationship. Moreover, the Board cannot conclude that there was an obligation on the College to explain to the Grievor the effect of his decision to retire. In this regard, the Board finds that the award in Seneca College of Applied Arts and 13 Technology and the Ontario Public Service Employees Union March 9, 1998 (Kruger (unreported)), which was relied on by the Union, is distinguishable. In that case, the grievor was facing allegations of sexual harassment and with a view to resolving the matter, the College prepared a letter which provided for the imposition of discipline and concluded with a statement to the effect that by signing the letter, the grievor agreed with the settlement, which would dispose of the complaint. Although the grievor signed the letter, neither he nor his Union representative understood that by doing so, he was foregoing his right to grieve the discipline imposed. In fact, even the College's representative was of the view that after signing the letter, the grievor could file a grievance and proceed to arbitration. In these circumstances, the majority of the Board dismissed the College's objection to the arbitrability of a grievance filed by the grievor to contest the discipline imposed. In disposing of this objection, the majority held that the consequences of a settlement, including the loss of the right to grieve, must be expressly stated and the College must ensure that the employee understands that he is foregoing the right to grieve. In contrast to the Seneca College award, in this case, the Agreed Statement of Fact indicates that the Grievor elected early retirement and there was no conduct on the part of the College designed to compel him to retire or to have him forego his right to grieve or to pursue his grievance. In the Board's ]4 view, there is also nothing in the collective agreement which would have required the College to explain to the Grievor the consequences of his decision. Moreover, although the Union submitted that the Grievor did not have the subjective intention to retire, within weeks of his layoff, he began to receive pension benefits which are dependent upon cessation of employment. The collective agreement also specifies the consequences of leaving the employ of the College and provides limited benefits to retired employees. Accordingly, if the Grievor was confused in any way regarding the effect of retirement, he ought to have consulted with the Union. Furthermore, although in a memorandum dated March 3, 1997, the College undertook not to object to the arbitrability of a layoff grievance on the basis that an employee had elected to accept severance, the terms of the undertaking are clear and cannot be construed as extending to early retirement. The Board also notes that as the undertaking was given subsequent to the Grievor's retirement, it cannot be said to have induced his decision to retire or somehow caused him to believe at the time that the College would treat retirement in a manner similar to acceptance of severance. The Board is also of the view that the award in Fanshawe College of Applied Arts and Technology and Ontario Public Service Employees Union, Local 109 January 30, 1997 (Schiff (unreported)) which was relied on by the Union is distinguishable. In the Fanshawe College award, which arose under the support 15 staff collective agreement, the majority of the Board determined that an employee who had accepted severance pursuant to Article 15.5.1 was not precluded from pursuing a grievance claiming that she had been improperly laid off. The right to severance, however, depends on the validity of the layoff and, in the Board's view, there is not the same nexus between the Grievor's layoff and his decision to take early retirement. Moreover, as noted by the College, in a subsequent award under the academic collective agreement, the majority of a Board chaired by Arbitrator Keller held that acceptance of severance and the waiver of recall rights precluded employees from pursuing grievances claiming improper layoff: see Fanshawe College and Ontario Public Service Employees' Union June 17, 1997 (Keller (unreported)). In the result, in view of Mr. Louza's retirement, any decision by this Board of Arbitration regarding his layoff will have no practical effect as there is no ongoing employment relationship. In this regard, there was no suggestion that the outcome of the grievance would affect other employees and, instead, the grievance appears to relate entirely to Mr. Louza's competence, skill and experience to perform the work of certain designated positions. Moreover, no issue was raised with respect to the matter of damages as the Grievor retired shortly after the effective date of layoff and prior to his retirement, accepted a severance payment in the amount of $23,881.65. Accordingly, the Board finds that "no present live controversy exists which affects the rights of the parties" and, as a result, the matter is moot: see Borowski v. Attorney-General of Canada (1989), 57 D.L.R.(4th) 231 (S.C.C.). Furthermore, while this Board may have discretion to hear the grievance in any event, we find that it is not appropriate to do so where the resolution of the dispute can have no effect on any ongoing employment relationship: see, by way of analogy, Re Seneca College of Applied Arts & Technology and Ontario Public Service Employees Union (1978) 17 L.A.C.(2d) 113 (H.D. Brown). In that case, the Grievor requested the removal of certain letters from her personnel file. However, prior to the arbitration hearing, she resigned from employment with the College and the majority of the Board determined that even if it had authority to deal with the grievances, there was no value in determining a dispute which could not affect the employment relationship in the future. In conclusion, therefore, the Board finds that the Grievor's election to take early retirement had the effect of severing the employment relationship and rendering the issue raised in the grievance moot. While it is unfortunate that the matter was not raised at the outset (which was apparently related to the fact that the College's labour relations representative was not aware of the Grievor's retirement), in the circumstances, the Board cannot conclude that the College is precluded from doing so at this juncture. Accordingly, as the issue is moot, the grievance of Mr. Louza is dismissed. DATED AT TORONTO, this 18th day of January, 1999. Chair "R.J. Gallivan" College Nominee Dissent to follow Union Nominee