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HomeMy WebLinkAboutChapman 88-09-06IN THE MATTER OF AN ARBITRATION BETWEEN LOYALIST COLLEGE OF APPLIED ARTS AND TECHNOLOGY (The Employer) AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The Union) AND IN THE MATTER OF THE GRIEVANCE OF ROY CHAPMAN (FILE # 88A755) BOARD OF ARBITRATION H.D. BROWN, CHAIRMAN J. MCMANUS, UNION NOMINEE R.J. GALLIVAN, EMPLOYER NOMINEE APPEARANCES FOR THE EMPLOYER ANN BURKE, COUNSEL D. BUTLER, DIR. OF PERSONNEL APPEARANCES FOR THE UNION JANET E. MOSHER, COUNSEL H. PLUMMER, LOCAL PRESIDENT R. CHAPMAN, GRIEVOR A HEARING IN THIS MATTER WAS HELD AT TORONTO ON JULY 12,1988. AWARD - 1 - A grievance was filed on March 4, 1988 under the provisions of a collective agreemen then in effect between the parties which claims as follows: "As a probationary employee with more than five months service, I have a substantive right to 90 calendar days written notice of termination (Art. 8.01(c). I received a letter of termination on February 17/88 making my termination effective May 6, 1988. This notice is less than the required 90 calendar days. I request the full 90 calendar days notice. If given proper notice of 90 calendar days, my "termination" date would be on or about May 17, 1988 at which time I would qualify as a full-time non-probationary employee and would have claim to all rights and priveleges of the collective agreement." The parties agree that the Board was properly constituted and that it had Jurisdiction to deal with the dispute. By letter dated February 17, 1988 the Employer informed the grievor that "your probationary position at the College will be terminated with effect from May 6, 1988, which will be your last working day... - 2 - The Union's position is that the notice of termination was 79 days while the grievor was entitled under Article 8.01(c) to 90 calendar days written notice. This Article is as follows: (c) During the probationary I)eriod an employee will b~ informecl ~n wmt,ng of the employee's progress et ~nterve.ls of four (4) months continuous employment or four (4) full months of accumulated non-continuous employment and a colby ~iven to the employee. Also, it is understood that an employee may be released uring the first five (S) months of continuous or non-continuous accumulated employment following the commencement date of the employee's eml~loyment ul)on at least thirty (30) calendar days' written not,ce and during the remainder of the employee's probationary period upon at least ninety (~)) calendar days' written notice. If request.ed by the employee, the reason for such relear~ will be g,ven in writing. As of May 7 the grievor would have completed his probationary period so that he would have been covered by the collective agreement. Therefore had 90 days notice been given to him, it is alleged that the termination would have become effective on May 17, at which time he would have acquired benefits under the collective agreement having completed his probationary period. On May 6 the grievor received a cash payment which reflected hours of overtime, retroactive pay and vacation pay. The Employer by memo to the grievor dated March 9, 1988 advised him that he had 115.25 days notice from February 17, 1988 as he woulld be receiving a - 3 - cheque for the equivalent of 36 1/4 days pay plus the 79 calendar days of notice. At that time the grievor was also adv~ised that "the College does not consider the release of an'employee during the probationary period to be grievable under 8.02(a) and thus your step one grievance dated March 4, 1988 is invalid..." The 36 1/4 days referred to in that memo was the grievor's accrued vacation entitlement which the College paid as part of the pay in lieu of notice to the grievor. The grievance was denied by the Employer at the subsequent grievance steps on the basis that he had received a total of 115 days in advance of the stated date of termination and that the College objected to the grievance of the grievor as a probationary employee. These matters were subsequently referred to arbitration and came on for hearing as above noted. The parties agreed to deal firstly with the preliminary objections of the Employer which the Board has determined in this award. The Union's position ia that the grievor had not been given proper notice which would, bad it been given, have extended his employment to May 17. Therefore the question is whether the Employer had the right to discharge the grievor on May 6, which the Union submits it did not but had violated Article 8.01; secondly, it is the Union's position that the grievor had not been - 4 - given 90 days notice in the calculation of pay in lieu which included accrued vacation pay which was improper so that the Union takes issue that vacation pay can be part of the pay in lieu of notice. In its submission that does not involve an amendment to the grievance which claims that the release on May 6 was not valid. The submission for the College is that under Article 7.01(b) it has the right to discharge a probationary employee during the probationary period and by Articles 8.02(a) and 11.06 the probationary employee does not have a right to grieve the discharge except in circumstances of discrimination or unlawful conduct which does not arise in the present circumstances. A bad faith allegation is not part of the grievance. Reference in this regard was made to Re Sheridan College of Applied Arts and Technology and OPSEU (Brown - September, 1987); Re Seneca College and OPSEU (Samuels - September, 1985); Re Seneca College and OPSEU (Swan). It was further submitted that the Union's position concerning the accrued vacation pay to be not included as pay in lieu of notice is not part of the grievance which would be - 5 - required to be amended to involve that dispute. It was submitted that a probationary employee is entitled only to proper notice and if the College was required to give 90 days written notice prior to the expiry of the probationary period, the period under the agreement would then be two years less three months, which would be an amendment of the agreement. It was submitted that the Employer's right to discharge a probationary employee is not impacted by the provisions of Article 8.01(c) which is not a condition precedent to the valid release. That section, in its submission, cannot be used to undo the legal effect of his discharge as a probationary employee on May 6 after which the employment relationship did not continue. Reference was made to Re Algonquin College and OPSEU (Brown - November, 1985); Re Ontario Council of Regents of Colleges and Applied Arts and Technology and Civil Service Assoc. of Ontario , 13 L.A.C. (2d) 82 (Weatherill). It was further submitted that the notice of 72 days exceeded the provisions for notice under the Employment Standards Act which was therefore not relevant. Re Fanaken v. Bell, Temple, 7 C.C.E.L 317. - 6 - It was the submission for the Union that it did not take issue with the Jurisprudence that a probationary employee cannot grieve his release or dismissal except where there has been bad faith or discrimination, but argued that the grievor has not grieved his release but the notice period under Article 8.01(c), Re Seneca College and OPSEU (Samuels - September, 1985), Re Seneca College and OPSEU (Swan). A substantive right in the collective agreement cannot be procedurally removed and therefore the grievor does have the right to grieve the Employer's failure to give proper notice. In its submission, proper notice was 90 calendar days written notice of termination and in interpreting that phrase it is a requirement to apply the Employment Standards Act, Re McLeod v. Eagen, 46 D.L.R. (3d) 150. By Section 2 of the Act part 12 applies so that by Section 40(1), which in part is: "No Employer shall terminate the employment of an employee who has been employed for three months or more unless the Employer gives, (b) two weeks notice in writing to the employee if his or her period of employment is one year or more but less than three years;... and such notice has expired. - 7 - It was argued that until the notice has expired, the employee cannot be terminated under this legislation. The collective agreement provides for 90 days notice of termination which is a greater benefit than provided in the Act, which is referred to in Section 4, but the principle remains the same that termination is after the expiry of the notice period. In its submission, in the application of Article $.01(c) the above section must be applied to give the reading which the Union urges that the employee must be given 90 days advance notice of termination. That Article fetters management's discretion to discharge an employee under Article 7 of the agreement. Where there has not been proper notice given under Article 8,01(c), the grievor should be placed as a matter of remedy, in the position that he should have been had there not been a breach of the collective agreement. It was submitted that a remedy therefore of eleven days pay to complete the notice period of 90 days would not satisfy the claim as had the Employer not breached Article 8.01(c), the grievor would have completed his probationary period and would be entitled to all rights under the collective agreement. - 8 - It was further submitted that if the Board found against the Union's position set out above, then an issue would arise as to whether the Employer could combine vacation pay with in lieu pay for the purposes of notice of termination which, in its submission, is not an amendment to the grievance as there is an allegation of failure to give proper notice. In the alternative, the grievor would be entitled to 11 days pay at the minimum, but the claim does not change the substance of the grievance which is that he did not receive proper notice of termination and that does not give rise to a new claim concerning the vacation entitlement which can be included in the claim for proper notice. The issue of whether a probationary employee can grieve his dismissal has been the subject of many arbitration awards between these parties and as a proposition as held by the various awards, is accepted by the Union in this case. For reference however, in that regard, the current state of such issue has been dealt with by this Chairman in the Sheridan College and Algonquin College awards, which need not be repeated in this award. The Union maintains in the present matter that the grievor is not grieving h~s release as a probationary employee, - 9 - but his lack of proper notice under Article 8.01(c). The facts are not in dispute that the grievor was given notice of termination on February 17, 1988, effective May 6, 1988 which was 79 calendar days after the written notice was given to him. His last day of work was May 6 at which date he' was a probationary employee. The probationary period under t'he collective agreement as set out in Article 8.01(a) as: (i) A full-time employee will be on probation until the completion of the probationary period which shall be two (2) years' continuous employment. Under Article 8.01(c) a probationary employee within the two year period can be released after five months on at least 90 calendar days written notice. The Employer provided 79 calendar days of written notice and payment in lieu of notice which it claimed to allow 115 days. The first issue however to be determined, is whether there was a breach of Article 8.01(c) by the Employer which could lead to a negation of the notice of termination or to an extension of time for the notice to take effect until May 17, at which time the grievor would have completed the two year probationary period. What the Union urges is that the Employer - 10 - must give 90 days written notice of termination under Article 8.01(c) and therefore by giving 79 days plus payment in lieu, it did not comply with this section and at May 6 the grievor was not properly terminated but should have been maintained as an employee until the expiry of the proper notice period at May 17. If that was correct, then the grievor could claim the rights of the collective agreement as a regular employee. The Union's position concerning the effect of the notice under Article 8.01(c) would allow the grievor to indirectly contest his release as a probationary employee when that is not an issue which is arbitrable under the collective agreement. When the grievor was given notice of termination he was a probationary employee. Article 11.06 provides that: "It being understood that the dismissal of an employee during the probationary period shall not be the subject of a grievance... Article 8.01(c) does not condition the right of the Employer to discharge an employee but provides the right of a probationary employee to notice. The term of the probationary period is not - 11 - qualified by the requirement to give 90 days notice prior to its expiry. ~at would mean that the probationary period would be two years less three months and if a notice of termination was not given within that period, the probationary period would automatically end at the end of two years and that employee, although subject tO a notice of something less than 90 calendar days, would fall within the provisions of the collective agreement, which is the grievor's position in this case. In our view, the Union's position on this issue would require an amendment to Article 8. 01(a), which this Board could not make having regard to the restriction on its authority in Article ll.04(d). The issue of whether a notice of release of a probationary employee is effective on the date of such notice or after the expiry of the notice period was dealt with in the CSAO award (supra) where the Board chaired by Mr. Weatherill at page 83 - 12- said: "In the instant case, the employer purported to, and took appropriate steps to "release" the grievor, that is to terminate the employment relationship during the probationary period. That is something which the collective agreement contemplates the employer may do. Under art. 8.01 (a) however, 'such release may be affected on notice. The question which arises in the instant case is whether or note,' since there was no such notice, the release or termination must be said to be a nullity. And at page 85, the Board stated: "In our view, where art. 8.01(a) of the collective agreement provides that the employer may release a probationary employee upon notice, it does not make the giving of such notice a necessary condition precedent to the release. Failure to give such notice would be a violation of the agreement for which an appropriate remedy (such as payment in lieu of notice) could be granted. It is our view, however, that it would take express language in the collective agreement to establish the giving of notice as a necessary condition precedent to the release of probationary employees, and to effectively alter the express provision of the agreement that the probationary period "shall be of two years' duration". Such language does not appear in this collective agreement." -13 - The same result as to the language of the collective agreement applies in the instant case. In our view, the above mentioned case has determined the very issue now raised by the Union in this grievance. In the Seneca College - Roy grievance, the Board stated at page 6: "In our view, a "release" is nothing more than the termination of employment of a probationary employee pursuant to Article 8.01(c). It is the reality which matters. There is no doubt here that the College intended to terminate the employement of the grievor. Because Mr. Roy was a probationary employee at the time of this termination, it was a "release". But the College failed to give the requisite 90 days' notice. The grievor is entitled to compensation in lieu of notice... Mr. Roy received notice on April 27, 1987 that his employment would end on May 15, which is 18 calendar days' notice. He is entitled to compensation in lieu of notice for an additional 72 calendar days. - 14 - That Board relied on the ratio of the CSAO case referred to above. The grievor was dismissed during his probationary period on February 17, 1988 when he was released from his employment and that dismissal was in accordance with Article 7 which is not conditioned by Article 8.01(c). What. the grtevor is entitled to under that section is at least 90 calendar days of notice. That is the only issue, in our view, which arises from the circumstances of his release from employment on February 17, 1988. The Employer is not required by the agreement to give 90 calendar days of notice as a condition of release of a probationary employee. Where the notice provided under Article 8.01(c) has not been met, the issue can only be the amount of notice and compensation for any deficiency, but a breach of Article 8.01(c) does not lead to an extension of the time for termination in order to exceed, and therefore complete, the probationary period under Article 8.01(a). The grtevor was terminated as a probationary employee on February 17. He is entitled as of that date to 90 days notice and therefore payment, but that does not extend his employment relationship which has been severed by the Employer when the grievor was a probationary employee. -15- Section 4 of the Employment Standards Act provides that the provisions of the Act are minimum and where the collective agreement provides a greater right, the greater right prevails. Clearly, this collective agreement provides a greater right to notice than the Employment Standards Act which therefore does not have any application in these circumstances. The Board finds that the claim of the grievor is limited to compensation with regard to the notice actually given to him at the time of his termination on February 17. That involves an issue of remedy as to whether vacation pay can be combined with severance pay to provide the required 90 day notice period. That is an issue of remedy which flows from the claim in the grievance and is not an amendment of the grievance as submitted by counsel for the College. The Board cannot conclude at this point as that issue was not dealt with on its merits by the parties, whether there was a breach of Article 8.01(c). If the Employer's position is correct that its payment for 79 calendar days plus 36 1/4 days of vacation pay constitutes notice which then would amount to 115 days exceeding the requirement of Article 8.01(c), there would then not be a violation of that Section. On the other hand, if that petition is no~ allowed, the £mpl~er would be found - 16 - to have made a deficient payment under this Article, and therefore be required to compensate the grievor to the extent of 11 days of pay. That is the narrow issue remaining in this dispute. For these reasons, the Board finds that the grievor's employment as a probationary employee was terminated on February 17, 1988. The Board finds that the Employer was not in violation of the collective agreement in the release of the grievor as a probationary employee and which is not an arbitrable issue under this agreement. The Board retains Jurisdiction to deal with the remaining issue of the remedy in the application of Article 8.01(c). DATED AT OAKVILLE THIS 6TH. DAY OF SEP~E~ERf 1988. H.D. BROWN, CHAIRMAN J. MCMANUS, UNION NOMINEE R. J. GALLIVAN, EMPLOYER SOMINEE