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HomeMy WebLinkAboutJennings 92-02-18 (~eFh?, foyer) O~ARIO 2~f~LIC ~~ E~LOYF~ (T~e Union) BOA.RD OF ARB~O~: ~ D- ~, ~ R.J. ~, EMPLOYER B. S'r~.~t~$, ~ON ~ APP--'-_?_MICES FOR THE DEA~[IS STAPIHSKI, HGR. OF CO~P~qSATION APPEARA.HCE~ FOR ~ UNION: ' G~ORGE RICHARDS, GRIEVAHCE A H?_ARI31G ]21 THIS HATTER WAS H]SLD AT TORONTO ON NOVEMBER 13TH, 1991. AWARD The following ~ is an agreed Statement of Facts by the parties. ~.. ~ 1. Mr. Jennin~gs was employed as a Receiving Clerk at ~umber College from April 29th, 1986 until Dece~mber 10th, 1990, when he provided the Collegle with a written resignation and signed ReIease. 2. On TuesdaH, November 27, 1990, ~r. Jennings was called into a meeting with Humber College's Head of S~curity Comptroller and Director of Purchasing where he was advised that he would be suspended without pay pending investigation. This action was taken by the College becg~ose of Mr. Jeqnings unauthorized action in entering the College's Receiving Area at 3:00 a.m. on November 2~4, 1990 and using College equipment to move goods believed to have been stolen. Mr. /enniqgs was also encouraged to contact his Union~representative. Mr. Jennings provided the Head qf Security with his key and left the College p~emises. 3. The College's Director of Human Resources was contacted.during the week of December 2nd, %990 and on the weekend of December 8th, 1990 by the Union President, Howard Payne, requesting a meeting to discuss Mr. Jennings' situation. 4. On December 10th, 1990, Mr. Jennings attended a meeting at the College. In attendance at the meeting were two Union representatives, Howard Payne and Don Stevens, the Manager of Compensation, Dennis Stapinski and the Director of Purchasing, Patrick Kelly. Mr. Jennings advised that after consulting with his Union representative he had decided to resign from the College. ~ 5. After further!. discussing the decision to resign with his unioh representative, the meeting of December 10th', 1990 reconvened and Mr. Jennings provided the College with a signed released witnessed by Howard Payne and by Dennis Stapinski. Mr. Jennings was advised throughout the meeting about his right to seek independent legal advice. 6. Mr. Jennings tf~-'ther contacted the College Benefits Department to' arrange for the terminaticn and withdrawal of~ his pension contributions. 7. The College did not hear from Mr. Jennings or the Union again until a grievance was received on February 12th, 1991. A grievance, date~ February 12th, 1991 is a claim that the grievor l~as been dismiss%d and suspended without just cause and re_~uests reinstatement with compensation. It is the response of the Employer that the grievor had resigned his position in December 1990 and that the grievance was not filed in accordance ~ith the time limit specified in the collective agreement. The College raised a preliminary objection at the hearing of the Board's jurisdiction to hear the grievance on the basis that the grievance is untimely within the terms of the collective agreement and not arbitrable. The relevant articles of the agreement in this regard are as follows: 18.1.4 Grievance "Grievance" means'a complaint in writing arising from the interpretation, application, adminisnration or alleged contravention of this Agreement. 18·2.1 Time If the grievor fails to act within the time limits set out at any Complaint or Grievance Step, the grievance will be considered abandoned. 18.6.1 Grievances'~ A complaint shall ~be taken up as a grievance in the following manner and sequence provided it is presented 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. 18.7.2 Grievance An employee who claims he/she has been dismissed or suspended without'ijust cause shall, within fifteen (15) days of the date he/she is advised in writing or his/her dismissal or suspension present his/her grievance in writing to the President, commencing at Step No. 3 and the President, or ~is/her designee shall convence a meeting and give the grievor and the Union Steward his/her decision in accordance with~the provisions of Step No. 3 of Article 18.5.1.3. A Unoin' Staff Representative may be present at such meeting at the request of either the College or the Union. 18 7 4 Powers ~' " The Arbitration Board shall have those powers set out in the Colleges Collective Bargaining Act, 1975. 18.7.5 Limitations The Arbitration Board shall not be authorized to alter, modify or amend any 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. ~~.~ ~ ... ~....~ ...... ., ~...,_~ .: ~-~,..: ~.;~..~,~.<...~ · . . ", . .~.. ~: '. . ., -, .. ~.~ . .. , ~,~ ~.', · . ....... '~,'.', ~.~ ~t:~',:" ,':.! ~ '~,~..:.~- .-~-~ - ~ ~ '~ .... The Board received the evidence and submissions of the parties concerning the preliminary objection on timeliness of the grievance and the Employer's alternative objection that the grievor had resigned from his position voluntarily. The Board reserved its decision with regard to th~ preliminary matters and agreed to issue an award on those issues before dealing if necessary, with the merits of the grievance~ Having reviewed the evidence and submissions it is necessary only for the Board to deal with the first objection of the EmPloyer relating to the timeliness of the grievance. ~ It is the positf'on of the Employer that the grievor resigned on December lOth, 1990 and neither he nor the Union contacted the College until February 13th, 199~. The grievance was a complete surprise to it !~s the grievor had'%oluntarily resigned and severed his employmen~ and had settled his financial affairs with the Employer. The 6ollective agreement does no~ have any flexibility for the Board to extend the mandatory terms of Article 18.7.2 in which the grievor had fifteen days to grieve. There is a delay in filing his grie%ance which exceeded the time limits set out in the collective agreement which cannot be extended by the Board under the Agreement or under the .College Collective Bargaining Act. It was submitted that the employee has the onus to take his action within the terms of the agreement and to act diligently in filing his grievance. The College relied on the grievor's representation of his resignation letter and release to the College and completion~of the pay documents. While the grievor contacted the Union in January, th~ Employer was not contacted until February 13th. '~e Employer did not dismiss the grievor by letter as it had the grievor's resignation in writing. The grievance claims that hz was dismissed improperly and therefore Article 18.7.2 applies. The Employer submitted the following awards in support of its position. Re Niaqara College and OPSEU (unreported - Kates, March 1991); Re Seneca Colleqe and OPSEU %unreported - Kates, May~ 1988); Re Seneca Colleqe and OPSEU (unreported - Brent, April 1988); Re Seneca"Colle~e and OPSEU (unreported - Simmons, May 1991); Re Fanshawe Collece and OPSEU (unreported - Devlin, May 1989). It is the submissio~ of the Union that the grievor did not write his letter of resignation himself but had it done by a friend. The Union had told~ him that he did not have a chance for his job so that he resigned but his action did not manifest his true intent. It was submitted that it could reasonably be concluded that the grievor was not fully appreciative of the consequences of his actionS'by resigning and the Union did little to enlighten him about his options at that time. Therefore th=re was duress with regard to his resignation. The grievor did not receive a letter of dismissal from the Employer and therefore Article 18.7.2 does not apply. In January and February the grievor spoke to a Union representative, Ms. McLean, and having further advice that he could proceed with the case, he left it to her to file the grievance which wa§ subsequently sent to the College and ~eferred to arbitration. It was its submission tkat the ~reliminary objection of tim'eliness of the grievance was not valid. It is evident on the. agreed facts and the evidence that the . grievance, dated February 12th, 1991 exceed~ the time limits provided by Articles 18.6.1~ or 18.7.2 for the presentation of a ~rievance. As the grievor claimed that he was unjustly dismissed, Article 18.7.2 provides the requirement for him to present his grievance in writing within fifteen days of the date he "is advised in writing of his dismissal." In the circumstance of that casa his reference in his grievance to dismissal is clearly the date of his resignation from the College as indicated on his letter of resiqnation, dated December}10th, 1990 and in the Fuel and Final Release which he signed on that date. We find it is from that date that tine began to run for the purposes of the ~resentation of grievance under Article 18.~.2. It has consistently been held by the Arbitrators that the provisions of this agreement.for the presentation of grievances are mandatory. It is also held that a Board of Arbitration does not have jurisdiction to extend the time limits eithe~ under the collective agreement or under the Act. There is no provision in %ke College Collective Bargaining Act t¢, allow~the Board to vary -~me limits under the Agreement. The Agreement provides that if the time limits are not followed, the grievance will be considered ~andcned pursuant to Article 18.2.1. The previous arbitration awards also stand for the conclusion that the grievor must be seen to have acted with due diligence in the process of the grievance. For the purposes of this determination it is necessary to deal only with the testimony of the grievor. He admitted that he understood that the grievance was filed late after he had spoken to Ms. McLean. He said he had called the Union office a couple of times in January but talked ~to Ms. McLean in February after which time limits were explained to him but he was told that if he felt he was pressured to resign he could proceed. It was his position that he was told to resign o~.~be fired by the then Union President, since deceased. He was not told he could get independent advice. He left the meeting on December 10th to talk to a friend before he signed the documents. He also submitted the following letter to the College: , "I, Thomas Jennings, have been an employee of H~mber ~ College since April 1986 in the Receiving Department. As of this date, I hereby give my resignation from this position effective immediately." ~4r. Stapinski, by letter dated December 10th, accepted his resignation and at the same time the grievor signed a Full and Final Release to the College. In November he had been suspended :~ut said that he felt he was being punished at this meeting for something he did not do. The documents were not explained to him :t tb.e time. No one including the Union was helping him. He had ~c'cond thoughts about the resignation and s~bsequently called the · t'JniOn' office and discussed i't with Ms. McLean as indicated above ~'~ : prior to filing the grievance. He agreed that the Union 'c.~' uepresentatlves were available at the meeting at which he resigned. at said they would not listen and had already learned of the incident. Following the meet.ing ne asked for his pay and benefits and received a cheque for his pension contributions from the CAAT pens ion plan. Mr. Kelly, the Director of Purchasing et the College, said that he was in attendance at ~he meeting on December 10th which had been called by Mr. Stapinski and said the grievor indicated to them that he was prepared to resign if he could have a clean record and get his benefit payments in a hurry. He was asked if he knew what he was doing and said that .he had discussed it with his Union !. ,. ep~e~em~a~ive.§ and wag ~01~'i~ha~ ~h~ ~oll~g~ would need a letter ~f r~signation and release fo,.rm which they obtained. They allowed ~ bremk in the meeting so that advice of the Union representatives _~=uld be obtained about the ~ocuments. The letter of resignation ~nd the release wa-- signed in the presence of everyone at the mee~in'~. He was not contacted by the grievor or the Union ~'o~10wing that meeting. Mr. Stapinski, the Manager of Compensation and ~ployee -elations, said that the grievor had been suspended pending ~nvestigation on November 26th as a result of an incident on ';~vember 24th. He was subsequently told that the grievor had :ecided to resign and the grievor confirmed that he had decided to resign from the College. He asked the grievor if he understood what he was doing that by his resignation he ~as terminating his employ,tent relationship and asked if he had talked to his Union representatives. The grlevor told him he understood and had talked with his Union representatives about his employment status and that the College would terminate him. Mr. Stapinski told him that was an option but tht decision had not yet been made. At the meeting Mr. Stapinski told the grievor what was required and they took a break at the meeting so that the grievor could' discuss the resignation with the Union representatiwes present. The College then accepted the resignation. Mr. Stapinsky said that he had advised the grievor that'he could obtain independent legal advice however he provided th~ letter of resignation and signed the release to the College. He determined how much money the grievor was owed for vacation pay and explained to him the process of obtaining his pension f~nds from CAAT Pension Plan. He did not recaive any withdrawal of the resignation by the grievor and was not contacted by the Union or the grievor following the resignation prior to. the'grievance. The grievance was not filed in accordance with the terms of Article 18 of the collective agreement in that it was beyond the time provided either by Article 18.6.1 or 18.7.2. The 5oard does not have the authorization to alter the terms of the collective agreement and is not ~iven the authority under the College Collective Bargaining Act to extend time limits for the purpose of filing grievances under the provisions of Article 18 of the collective agreement. Consequently the terms of Article 18.2.1 must apply which requires the Board to find that the grievance has been ccnsidered to have been abandoned. In the Niagara Colleqe award the Board state~ at page 5: "Article 18.f ..1 places a heavy onus on an employee to press a .qrk related complaint as a grievance with due dilfgence after the .circumstances giving rise to that i~complaint ought. 'reasonably to have come to attention." In the Seneca College award (Kates) the same Chairman as in the above case stated: ~ "In our view krticle 18.6.1 contemplates that due diligence and dispatch be exercised in satisfying the mandatory requirements for the presentation of a timely g?ievance. And in the grievor's circumstances we are of the view ~at she was dilatory in making such effort and thereby acted in a manner that was inconsistent with the objective of !Article 18.6.1 for presenting an appropriate qrtevance within fifteen days of the circumstance~giving rise to the'~complaint materialise..-I~ The evidence in this case indicates that the grievor did have Union representation at the meeting on December 10th when his resignation was submitted to the College. It is also indicated that the grievor had the opportunity to discuss this procedure with the Union representatives, a friend of his and in addition Mr. Stapinski we find advised him that he could hhve independent legal advice. He chose not to do that obviously and proceeded with - 11 - presenti,'.g the letter of resignation which he wrote to the College and signed the release, all of which was accepted by the College on that day. The issue 'for the purpose of this preliminary objection is not whether that resignation was made voluntarily but rather what as a result of that action the grievor did to process the grievance dated February 12th, 1991. He said that he had second thoughts and spoke to' the Union Head Office in January and was then told not to go near the College premises but took no further action until he spoke to Ms. 'McLean some time in February and prior to the date of the grievance. Having regard to the grievor"~ availability to Union representation at the. meeting on December 10th when he resigned his employment had the grievor had second thoughts as he indicated following that meeting, he knew who to contact to either process a withdrawal of his resignation or to file a grievance or both and in any event to obtain Union and legal advice as to his 'employment relationship at that Point. To delay the filing of the grievance for over two months from that date is beyond the mandatory terms cf the collective agreement and is an excessive amount of time in any event in which to lodge a complaint under the terms of this agreement. We find that there is no credible evidence by the grievor to explain that period of delay. Even accepting that the grievor had contazted the Union office some time in Jan,..ary, the grievance was not filed until a month or so after that contact. Whatever duress the grievor had then considered with regard to his actions on December 10th, he could not explain the e~'cessive delay in processing the grievance under the terms of the collective agreement. There was no ~ndicatlon to the College of a grievance ~r even an intent to ques%ion his resignation prior to February 13th. No withdrawal of the~'~ resignation was made. We find that the grievor did not act with due diligence in presenting the grievance. We find on the evidence that there is .no legitimate reason fer the delay in filing the grltevance. The grievor wa'~ not in any way precluded from contacting his Union after December 10th and within the time provided under the collective agreemeht to grieve. We find that, the grievor was properly advised of his employment interests on December 10th and that Mr. Stapinski had~ alerted him to his employment status as a result of his resigner, ion. As well the grievor was p~ovided an opportunity to discuss that relationship with his Union representatives at that time. By Article 18~.7.2 the grievor had fifteen days from DeceMber 10th on which date he knew or ought to have known that his employment was terminated as a result of his resignation, in order to present a grievance in writing. He failed to do so. For the reasons set out above, the Board does not have discretionary authority and cannot vary the mandatory provisions of the collective agreement in this regard. - 13 - As therefore it has been found by this Board that the grievance is untimely under the terms of the collective agreement, we must conclude that we do not have Jurisdiction in the matter as the grievance is not arbitrable. These proceedings are therefore terminated. DATED AT OAKVILLE, THIS I~ DAY OF FEBRUARY, 1992. HOWARD D. BROWN, CHAIRMAN R.J. GALLIVAN, EMPLOYER NOMINEE B. STEPHENS, UNION NOMINEE