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HomeMy WebLinkAboutSalisbury 93-03-26IN THE MATTER OF AN ARBITRATION BETWEEN: LOYALIST COLLEGE (The College) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The Union) AND IN THE MATTER OF THE GRIEVANCE OF S. SALISBURY - #91F256 BOARD OF ARBITRATION: Kenneth P. Swan, Chairman R.J. O'Connor, College Nominee Jon McManus, Union Nominee APPEARANCES: For the College: Douglas K. Gray, Counsel D. Butler, Vice-President, Human Resources For the Union: David R. Wright, Counsel Martin Sarra, Staff Representative John Boor, President, Local 421 Sherry Salisbury, Grievor AWARD A hearing in this matter was held in Belleville, Ontario on January 10, 1991, at which time the parties were agreed that the board of arbitration had been properly appointed, and that we had jurisdiction to hear and determine the matter at issue between them, subject to two preliminary issues raised by the College. The issues before us arise in connection with the grievance filed by Ms. Sherry Salisbury on September 26, 1991. The statement of grievance is as follows: Dismissed without just cause. I was intimidated, coerced and threatened. I was also denied the right to file a grievance. The College's two initial responses to the grievance are that the grievor was not dismissed, but that she resigned, and that in any case her grievance is out of time pursuant to the mandatory time limits set out in the collective agreement. The parties were agreed that we should hear and dispose of these two issues before any consideration of the merits. At all material times the grievor was a Clerk in the Placement Department at the College, reporting to Ms. Maureen Corrigan, the Manager of the Department. On August 30, 1991, the Friday before the Labour Day weekend, the grievor left a message on the answering machine at the office to the effect that she wasn't feeling well, and wouldn't be in to work that day. That evening, as it happened, Ms. Corrigan attended at a restaurant called "Rumours", where she encountered the grievor. The grievor came over to speak to Ms. Corrigan, who formed the - 2 - impression that the grievor was in fact working at the restaurant. After some discussion between them, Ms. Corrigan confirmed her impression, and spoke to the restaurant's management as well. Before leaving, she told the grievor that she would see her at work on the Tuesday following the Labour Day weekend. That Tuesday was September 3, but the grievor did not attend at work that day. When she did return on September 4, she offered a doctor's note to excuse her absence. Ms. Corrigan said something to suggest that the matter was not closed, and then left to speak to Mr. David G. Butler, Vice-President of Human Resources, and Mr. J. Edward Boone, Vice-President of Student Affairs. There had apparently been discussion between these two individuals previously, after learning of Ms. Corrigan's encounter with the grievor, and it had been decided to discharge the grievor. The grounds for this action were a perceived abuse of sick leawe on Friday August 30, coupled with an earlier occurrence of a materially similar nature, at which time she had been interviewed and cautioned that conduct of this sort was viewed by the College as fraud. After some further discussion, however, it was decided that the grievor should also be offered an opportunity to resign, should she prefer that to being discharged. On September 4, at approximately 10:15, Ms. Corrigan brought the grievor up to Mr. Boone's office for an interview. Only the three of them were present, and it is common ground that the grievor did not ask for Union representation, and that the College's representatives did not offer it. Mr. Boone began by - 3 - deploring the situation, and indicating that the College was unwilling to tolerate a recurrence of conduct of this kind. He offered her two letters, which had been prepared prior to the meeting, and asked her to consider whether she preferred to be discharged effective 4:30 p.m. that day, as "the result of excessive absenteeism and working at Rumours Friday, August 30th, 1991 while on sick leave", or whether she would prefer to resign. It is clear that everyone understood that the conse- quences of resignation would be that the College would supply information in response to inquiries from prospective employers that did not mention an allegation of fraudulent misuse of sick leave. The grievor also formed the impression that a written reference was promised, but the evidence is in conflict on this point. The grievor took several minutes to study the two letters, and then asked whether she was being requested to sign right then. The grievor also said that she asked to take the letters away and have some time to talk to someone about it, but both Ms. Corrigan and Mr. Boone deny any such request. In any case, Mr. Boone said that he would prefer that she chose a course of action at that time, and she ultimately signed a letter which was an unequivocal resignation as of 4:30 p.m. September 4, 1991. There was some further discussion about whether she would like to clear out her effects immediately, or wait until after 4:30, and she expressed a preference to return after 4:30. In parting, the grievor said that she was sorry about "all of this" - 4 - and that she didn't mean to cause "so much trouble". She then gathered up her immediate effects and left. Although Ms. Corrigan waited for the grievor after 4:30 that afternoon, she did not arrive or get in contact with Ms. Corrigan that day. After 5:00 p.m. Ms. Corrigan phoned the grievor at home, and was told that she would come in the next evening instead. Ms. Corrigan waited at the end of each of the next three working days, but the grievor never did return. on Monday, September 9, a Ms. Jennifer Panchuk came to the Human Resources office to speak to Ms. Liz McGregor, the Manager. Ms. McGregor had previously arranged for the grievor's final pay cheque to be processed, and had left a message on the grievor's telephone answering machine on September 5 to tell her that it was ready, and would be released upon her returning her keys. Ms. Panchuk was armed with a note dated September 6, 1991, signed by the grievor, giving Ms. Panchuk permission to pick up her pay "as I am out of town for a few days". Ms. Panchuk did not have the keys, and Ms. McGregor refused to release the cheque except in exchange for them. Ms. Panchuk left, and returned later in the same day with the keys. After giving Ms. Panchuk the cheque, Ms. McGregor took her down to Ms. Corrigan to pick up the remainder of the grievor's belongings. From the College's point of view, this was the last contact with the grievor until a Union grievance was filed on September 17, 1991 by the President of Local 421, Mr. John Boor, to the effect that the grievor was forced to resign improperly. This - 5 - caused a discussion between Mr. Boor and Mr. Butler, in which the latter indicated that it was the College's position that there had been an exchange between the grievor and the College, in which the College had agreed to allow her to resign and to respond favourable for requests for information about her employment from other prospective employers by simply reporting the fact that she had resigned after satisfactory work performance. Me told Mr. Boor that the College viewed her conduct as fraud, and wondered how the College was now to respond to requests for information from prospective employers if she were to be allowed to withdraw her resignation. The next contact between the grievor and the College occurred on September 26, when.a letter was received from the Union withdrawing the Union grievance, and the individual grievance signed by the grievor was filed. It is that individual grievance which is now before us. The grievor's own version of events differs from that of the College's witnesses in a few material respects. While she agrees that her demeanour may have been calm, and that she may have apologized in the interview, she says that she did not expect to be faced with a choice between a discharge and resignation at that meeting, despite what had occurred on the previous Friday. She says that she wanted time to discuss the matter, specifically with a representative of the Union, although she does not in fact testify that she asked for Union representation at the time, merely for more time to consult and decide. Because she had a choice of - 6 - termination with no favourable references, or resignation with a favourable reference, she chose the latter, and signed the letter. She says, however, that despite her apparent demeanour, she was "in shock" throughout the meeting. After the meeting, she went home and discussed the matter with her father, indicating her view that she had been treated unfairly. The following day, September 5, she phoned Mr. Boor at work, and told him what had occurred. She wanted to know at that time if she "had any rights". Mr. Boor said that he was uncertain as to how to proceed, but that he would take advice. It was agreed that they should meet on September 16, apparently because Mr. Boor informed her of the fifteen day time limit in the collective agreement for filing grievances. They met that day, and the policy grievance was filed the following day. On September 25, Mr. Boor called to say that he had formed the conclusion that it would be preferable to replace the Union grievance with a personal grievance, and the grievor and Mr. Boor met on the morning of September 26 to accomplish that. Without going into detail, it is common ground that, if time begins to run on September 4, a grievance filed on September 17 would be within the time limits set out in the collective agreement, while a grievance filed on September 26 would not. As is well known, the time limits in the grievance procedure in this collective agreement a~e mandatory, and the legislation under which the agreement was concluded does not give to boards of arbitration any jurisdiction to relieve against time limits, regardless of the circumstances. - 7 - We were referred to a number of arbitration awards, but for the present purposes we begin with a decision of a board of arbitration written by the present chair, under a predecessor of the present collective agreement, in Re Conestoga College and Ontario Public Service Employees Union (1988), 3 L.A.C. (4th) 26 (Swan). In that case, the following observation on the law, and an assessment of the facts there at issue, appears at pp. 30-32: The first issue to be dealt with is the effective- ness of the grievor's resignation. We were referred to a number of cases in relation to this issue, including Re Head and Com'r of Ontario Provincial Police (1980), 109 D.L.R. (3d) 507, 28 O.R. (2d) 128 (Ont. Div. Ct.); reversed 127 D.L.R. (3d) 366, 40 O.R. (2d) 84 (Ont. C.A.); affirmed 16 D.L.R. (4th)768~, 50 O.R. (2d) l18R [1958] S.C.R. 566B (S.C.C.); Re Coca-Cola Ltd. and United Brewery Workers (1980), 26 L.A.C. (2d) 354 (Beck); Re O.P.S.E.U. (Mansell) and Crown in right of Ontario, Crown Employees Grievance Settlement Board case No. 598/83, September 26, 1984 (Verity); Re Mack Canada Inc. and I.A.M. Lodge 2281 (1982), 3 L.A.C. (3d) 320 (Kennedy); Re Miracle Food Mart and U.F.C.W., Local 175 & 633 (1983), 11 L.A.C. (93d) 320 (Swan); Re Canada Packers Inc. and U.F.C.W., Loc. l14-P (1984), 17 L.A.C. (3d) 1 (Rayner); Re Beacon Hill Lodge, Ottawa and O.N.A. (1985), 17 L.A.C. (3d) 65 (Brent); Re Miracle Food Mart Steinberg Inc. (Ontario) and U.F.C.W.. Loc. 175 (1985), 19 L.A.C. (3d) 65 (Brunner); and Re Federal Pioneer Ltd. and Communica- tions, Electronic. Electrical, Technical & Salaried Workers of Canada. Loc. 521, unreported, April 7, 1986 (Weatherill). The arbitral jurisprudence, confirmed by the decision of the Court of Appeal in Re Head, is to the effect that a resignation will only be valid if it is made in circumstances of a conjunction of sufficient objective conduct by an employee to constitute a resigna- tion, and a real subjective intention to resign employ- ment finally and absolutely. Here the signature on the resignation form constitutes sufficient objective conduct; the question is whether there is also a concur- rent subjective intention actually to resign. While this is a close case, we have concluded that there is not a sufficiently clear demonstration of such - 8 - an intent. The evidence makes it clear that the grievor was stunned by the allegations against her, which, as she said in her testimony, "came out of the blue". She was told that there was sufficient evidence against her to proceed "in a court of law", an assertion which, however innocently, was simply false as will be seen below. Whether or not it was entirely intended, the grievor was left with the distinct impression that a refusal to resign would result in criminal prosecution. Finally, she felt she was left no choice, and it is clear from the evidence of Ms. Betty Martin that she would indeed be given no choice whatsoever. If she did not resign she would be discharged, and she was left with the distinct impression that discharge would mean disgrace, prosecution and the real possibility of criminal penalties. It is also relevant to observe that the grievor was neither represented by a union official, nor was it suggested to her that such representation might be appropriate, It is true that she did not ask for any such representation, but this appears to have been a result of the suddenness of the accusation and the demand for a resignation, and a certain lack of sophistication in the rights of employees in a unionized environment. It is also of relevance that, the choice between resigna- tion and discharge having been offered, the grievor was permitted no time to think through her options. It was, on all of the evidence, a decision which she was forced to make immediately, with significant consequences likely if she chose not to resign. Finally, the grievor's conduct following her resignation is inconsistent with anything but a fleeting abandonment of her rights in the despair of the moment. She had immediately denied the thefts, and continued to deny them to anyone who asked. By that evening, she had written out her own version of events, and had secured the name of the union representative to contact. On the morning of the next working day, she had made contact with that person and had indicated that she wished to be represented by the union and to challenge the allegations made against her. As soon as a meeting could be arranged with the chief steward, a grievance was filed. None of this is consistent with a sober, reflective look at the options available, an assessment of the consequences attached to each option, and firm decision to resign. The decision of the Ontario Court of Appeal in Re Head - 9 - and Commissioner of Ontario Provincial Police, supra, is also of interest in this matter. In particular, we refer to the following statement of the Court of Appeal at 40 O.R. (2d) 84, at 85: The reasons of the Divisional Court speak of pressure and inducements in the obtaining of the resigna- tion. There is, however, no requirement that an effec- tive resignation be free and voluntary in the sense that those terms are used in the consideration of the admissi- bility of a confession in a criminal case. Before the resignation in this case can be said to be "no resigna- tion'' the respondent must demonstrate that he was the subject of such duress or coercion that the resignation was tr~Iy not voluntary, that is, not the act of his own free will. The facts in this case fall far short of this Rea sur~. The Court of Appeal decision was upheld, without substantial reasoning, by the Supreme Court of Canada in Head v. Graham [1985] 1 S.C.R. 566. In essence, the law is that a resignation, voluntarily offered without the kind of duress that is described in the Head case, is binding once accepted by the employer. Those cases which purport to permit an employee to "withdraw" a resignation do so only on the basis that the resignation was not legally valid, in the sense that the objective tendering of a resignation was not, for some reason, accompanied by a subjective intention to take that step. The Head case, which is the most authoritative legal statement on the subject, involved a police officer, who, when threatened with criminal prosecution if he did not resign, tendered an apparently valid resignation. The excerpt quoted above indicates the very limited extent to which the courts are prepared - 10 - to inquire into the pressures on an individual in order to avoid the consequences of a resignation. Arbitrators have been somewhat more solicitous of employees threatened with criminal charges, but really not much. The Re Conestoga College case, supra, describes itself as "a close case". In that case, as quoted above, there was a clear impression left with the grievor that a failure to resign would lead to a criminal prosecution. In Re Miracle Food Mart and United Food and Commercial Workers. Locals 175 and 633 (1983), 11 L.A.C. (3d) 320 (Swan), the threat was only to involve the police and invite a police investigation. In that case, the alleged duress was held not to be of the kind envisioned in Re Head, and thus not sufficient to vitiate the resignation, of which there was otherwise ample objective evidence. This decision was adopted and applied in another case between those same parties, even where the threat was not merely to commence a police investigation, but to actually lay criminal charges: Re Miracle Food Mart Steinberg Inc. (Ontario) and United Food and Commercial Workers, Local 175 (1985), 19 L.A.C. (3d) 65 (Brunner). In Re Beacon Hill Lodge, Ottawa and Ontario Nurses' Association (1985), 17 L.A.C. (3d) 65 (Brent), a board of arbitra- tion dealt with a case of a nurse who was suddenly and without warning confronted with threats of complaints of professional misconduct which might lead to loss of her right to practice her profession. In that case, for a number of reasons apparently personal to the grievor and related to the special circumstances, - 11 - which included the fact that the employer did not actually even have grounds for discharge, a majority of the board of arbitration declared the resignation to be invalid. What is critical about the arbitral jurisprudence for our purposes is that a distinction is drawn between refusing to permit an employee to withdraw a resignation once it has been accepted because she has changed her mind after further reflection, and permitting an employee to assert that an apparent resignation was no resignation at all because of duress sufficient to make it involuntary. In our view, the present case fits squarely into the first category, and it is therefore not a case in which arbitrators have been prepared to grant relief. The grievor knew very clearly on Friday, August 30 that her supervisor viewed her presence in the employment of another employer after a day on which she had claimed sick leave from the College as a serious matter for further discussion. In our view, there is no other conclusion which the grievor could have reached from Ms. Corrigan's comment that she would see the grievor on Tuesday than that disciplinary consequences would flow. The grievor did not come to work on the Tuesday, and was thus absent for the day before and the day after the long weekend. When she did appear 'at work on Wednesday, she had armed herself with a doctor's certificate, and had thus given at least some forethought to the possibility of displeasure by the College because of her absence. While she may have had only a few minutes warning of the - 12 - possibility of a further meeting with senior officials at the College, we are of the view that she could have been under no illusions as to the approach which the College would take to her having apparently been found committing a further disciplinary offence of a kind which she had been told only a few months before that the College would view very seriously. Once she arrived in Mr. Boone's office, moreover, she could have been under no illusion that the College intended to discharge her, and that the option of resignation was offered only to alleviate the consequences of such an action. Most important, however, there were no collateral threats made, whether of criminal prosecution or of any similar nature, which could possibly be invoked to explain away her resignation as one procured by duress. The grievor was simply confronted with the College's intention to discharge her, and offered an easy way out which, after some reflection, she accepted. To allow the grievor to retract what was, by all of the usual arbitral criteria, a valid resignation, would fly in the face of the way in which resignation has been treated by the courts and by arbitrators for decades. Because of the conclusion which we have reached on the question of resignation, it is not really necessary to deal with the time limits question in any detail. W.e should, however, comment on an argument made by the Union to the effect that the collective agreement starts time running only "after the circum- stances giving rise to the .complaint have occurred, or have come or ought reasonably'to have come to the attention of the employee". - 13 - The Union argues that this time only begins to run when the employee has been completely advised of the legal ramifications of her situation, including the fact that she is entitled to file a grievance despite the fact that she has resigned. In our view, at least in this case, all of the circumstances "giving rise to the complaint" occurred and were clearly known to the grievor on September 4. While she might wish to take some advice from the Union about the consequences flowing from those circumstances, there was really nothing more to be learned apart from the likelihood of her succeeding at arbitration. That is not, in our view, a circumstances which prevents time from beginning to run. under the grievance procedure. In our view, therefore, the grievor's personal grievance was out of time when it was filed, and the Union's grievance on her behalf, which would effectively have admitted that she had no grounds for bringing a grievance of her own (see clause 18.3.3) ceased to exist upon its withdrawal, and cannot be viewed as in any way a placeholder for the grievor's own personal grievance. As a result, we find that the grievance is not arbitrable because the grievor had tendered a valid resignation which was accepted by the College, and she cannot subsequently be permitted to withdraw that resignation. In the alternative, we would have found that her personal grievance was out of time, and thus was not arbitrable. DATED AT TORONTO this 26th day of March, 1993. Ken~ I concur "R.J. O'Connor" R.J. O'Connor, College Nominee I dissent; see attached "Jon McManus" Jon McManus, Union Nominee DISSENT : SALISBURYi 91F256. I hame read the award of the .majority and wi~h respect,find.that I must dissent: Time' Limits Issue; · I dissent from the view of the Board that time started running c,n September 4th. The language c,f the provision is set out on page 12. In my View the gr. ievor cannot be said to have knowledge of the circumstances giving rise tc, the complaint until someone told' her that thos.e circumstances-could entitle her to grieve. This is particularly the case in a situation such as this 'where there is no ,:lear right in the collertive'agreement to grieve against a" forced resignation." It is quite reasonable to'my way c,f thinking,that advice wc~ld be need in such circumstances. Resignation Issue On review Of the circumstances disClosed in evidence that ~is ( the request made by the grievor to be given a opportunity to consider' the matter' prior tc, signing the letter c,f resignatic, n and that this was denied by. the emplc, yer) this wc, uld indicate to me that a certain amount c,f duress had been put on the grievor,sc, it' can be said that the grievor, never had a true intention to resign. Furthermore Cc, ntrary to the position of the'majority at Page(12) ,.~,f the award, .I would take the position that there were collateral threats. The grievor testified and it was according to my 'notes uncontradicted and not' denied by the employer·, that while they ,-learly mentioned,that these alleged acts were criminal in nature, they did not threaten the grievor With criminal prosecution but rather stated the grievor took.the resignation option t.hen upon enquir~ they wc, uld not tell anyc, ne that the reason for the departure and resignation of the grievnr had anything to dc, with fraud. It .is difficult tc, see a differenc.e ·between threatening someone with criminal prosecution., and telling them that you wil'l inform prospective emploYers that yc, u have cc, mmitted fraud. I think that this alone amounts to an implied threat,which again 'adds to the duress wh£ch the grievor was subjected to. Finall.y, ..I would note that the grievor contacted her Union the very next.day~'after the incident to' indicate that she not .wished tc, resign. Although the Employer was not put on nOtice earlier this was only because the Union informed her that she had until September 16th., to make a decision. I would have~ denied the~ preliminary· obje,-tions,mnd. . _ continued with the me.rits c,f the-case. J. Mc Manus.