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HomeMy WebLinkAboutRamsay 94-11-04 In the Matter of Sault College of Applied Arts & Technology (Employer) and OPSEU (Union) And in the matter of Diane Ramsay Before: Mr. M.B. Keller, Chair Mr. J. McManus, Union Nominee Mr. D. Cameletti, Employer Nominee Appearances: David Brady for the Employer Ronald Davis for the Union Hearing at Sault Ste. Marie, September 13, 1994. AWARD The grievor claims that the employer deprived her of her right to elect to be laid off in lieu of being reassigned to a position other than her own. The grievor was a Clerk General B in the Athletics Department working 35 hours per week, nine months per year. As a result of budgetary difficulties the Department had to find ways to increase revenues and/or decrease costs in order to maintain services. It approached the union and the matter was discussed in July 1993. During the meeting management indicated that, on the decrease costs side of the ledger it was looking at two options. One was to reduce the clerical position to 25 hours per week, 8 months per year and have a nine month 20 hour per week programmer. The other was to declare the clerical position redundant and add a full-time student programmer to the complement. No response was received from the union and the matter was briefly referred to in another meeting on August 3 at which time the employer indicated it would likely pursue the reduced hours option. On August 6th the grievor was officially informed in writing that her hours of work were being reduced from 35 to 25 but there was no reduction from nine to eight months as initially considered. The grievor indicated concern about the loss of 10 hours per week and the employer responded by assigning her an additional 10 hours, at the same rate of pay, as a clerk in the Human Resource Services Department down the hall from her then current position. A grievance was filed on August 26th and on August 31st, the union delivered a memorandum to the employer to which wa appended the grievor's letter of resignation dated August 30th to be effective September 1. Additional evidence was addiced by the employer that the purpose of the grievor's resignation was to join her husband who was then employed in British Columbia. The union's argument is that, pursuant to arbitral authorities, a reduction of work unequally applied to members of the bargaining unit constitute a lay-off. That then triggers the provisions of Article 15 of the collective agreement. In the instant case, the employer chose to reassign rather than lay-off and in that circumstance the employee has the right to opt for lay-off rather than reassignment. The employer submits, first, that the employer never contemplated laying-off the grievor as provided in Article 15.6. It further submits that none of the steps contemplated by the collective agreement in the case of a lay-off were followed and that the whole sequence of events and actions of the parties demonstrate that neither the union nor the employer ever treated this as a potential lay-off. Second, the employer submits that the collective agreement, both implicitly and explicitly contemplate that a lay-off occurs only in the situation where an employee's employment is actually ended; a reduction of hours of work does not meet the test of lay-off as provided in the collective agreement. On a careful review of the evidence and case law it is evident that this is a unique case. Unique because, ultimately, the hours of work of the grievor were not reduced by the employer. Although they were going to be, after the expression of concern by the grievor, she was assigned 10 additional hours at her current rate of pay. Thus, on the evidence the hours of work of the grievor were never reduced~ The union's case is based on the premise that there was a lay-off because there was a reduction in hours. Given that there was no reduction, ..the union's argument must fail. It is unnecessary, therefore, to determine whether, under this collective agreement, a reduction in the hours of work constitutes a lay-off. The grievance is denied. Nepean, this day of ~ ~JJ , 1994. M.B. Keller, Chair I concur/di~oon3~ ~- ~ ~ ~ ~J J. McManus, Union Nominee I ooncur/~innmr~t ~' %~ ~Ct~'7 I D. Cameletti, Employer Nominee Addendum I have read the award c,f the majority, and based c,n the facts that are peculiar tn this case I find myself in agreement when the majc, r ity states" that nn reductic, n .in he, uts took place" hence my cc, ncurren,--e. The question as to whether the ,:hange c,f duties ,_-an be interpreted as a reassignment in order for the employee to, take advantage of the conditions set. c, ut in Article 15.4.4 Layc, ff or Reassignment. will have to be asked c,n a other day. JOHN MC MANLIS.