HomeMy WebLinkAboutMcDermott 89-11-08 IN THE MATTER OF ANARBITRATION
BETWEEN:
ST. LAWRENCE COLLEGE
(Hereinafter referred to as the College)
O~fARIO PUBLIC SERVICE F~PLOYEES UNION
{Hereinafter referred to as the Unionl
A~D IN THE ~ATTER OFT HE GRIEVANCE OF R.A. McDEP~OTT (OPSEU FILE 87M$5~
BOARD OF ARBITRATION: Gall Brent
R. J. Gallivan, College Nominee
Ron Cochrane, Union Nominee
APPEAP~NCES:
FOR THE COLLEGE: C.C. White, Counsel
FOR THE UNION: Chris G. Paliare, Counsel
Hearing held in Toronto, Ontario on October 12, 1989.
DECISION
On December 21, 198~ the majority of the board issued an award dismissing
the grievance, finding that the College had not exercised its discretion under
the management rights clause in bad faith when it released the grievor during
his probationary period. The definition of bad faith applied in connection
with the management rights clause was illegality or obstruction. On
February 19, 1989 the Divisional Court quashed the award and remitted it back
to the board "in accordance with the direction set out in the reasons". On
October 12, 1989 a hearing was held, and the parties made submissions to us
regarding the disposition of the matter in light of the Dlvisiona! Court
judgement.
As we understand the Court's decision, it was that we erred in declining
jurisdiction to consider the matter in light of the 'code of positive
obligations governing the probationary period such as clause 8.011c~ of this
agreement' Ipage 1 of the decisionl. The Court then went on to say, also at
page 1:
It is clear from Council of Printing Industries (1983) 42 O.R.
404 that different language in a different agreement read as a whole
might properly be interpreted as giving a Board jurisdiction to
consider good faith, in a sense broader than that used in Metro~oli-
tan Toronto, as a subject of a grievance. Having regard to the
language of this agreement we think this is such a case.
[underlining added]
Article 8.01 (c) of the collective agreement is set out below:
(c) During the probationary period an employee will be informed
in writing of the employee's progress at intervals of four 14)
months continuous employment or four (4) full months of accumulated
non-continuous employment and a copy given to the employee. Also,
it is understood that an employee may be released during the first
five (5) months of continuous or non-continuous accumulated
emplo~ent following the conencement date of the employee's
employment upon at least thirty ($0) calendar days' written notice
and during the remainder of the employee's probationary period upon
at least ninety (90) calendar days' written notice. If requested by
the employee, the reason for such release shall be given in writing.
In the Council of Printing Industries case referred to by the Divisional
Court, the Ontario Court of Appeal quoted at length from the award of the
board of arbitration. The thrust of that award, at least for our purposes, is
that where there is a mandatory obligation on the part of the employer to do
something, and where the collective agreement does not leave that matter to
the sole discretion of management, then it is reasonable to imply that the
employer 'must exercise its power under this article on a reasonable basis and
/
without bad faith, discrimination or arbitrariness' {quote taken from page
40g|. At page 411 the Court of Appeal concluded that such an interpretation
was %ne it could reasonably bear, or to use the words of some of the
authorities in this field, the interpretation is not 'patently unreasonable'"
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Ne therefore consider that the Divisional Court has directed us to
consider whether or not in exercising its positive obligations under
~rticle 8.01lc) the College exercised "its power under this article on a
reasonable basis and without bad faith, discrimination or arbitrariness".
believe that test is what the Court was referring to when it directed us
consider good faith, in a sense broader than that used in Metropolitan
Toronto", which looked only at illegality or obstruction in connection with a
management's rt.ghts clause.
The facts of this case are set out in the award with its attached dissent
released in December, 1987, and since the parties introduced no new evidence,
we will confirm that the facts are as found in that award and that in making
our decision here we relied on no evidence which ~as not before us when that
award was made. Ne have heard the submissions of counsel and have considered
them in making our decision.
As we have already mentioned, we believe that we are obliged to apply a
broader test of bad faith than that which we applied in the first decision.
The College's positive obligations to the grievor ~tnder Article 8.01{c) can be
summarized as requiring it to provide hi~ with periodic progress reports and
to provide hi~ with written reasons for his release during the probationary
period. Certainly, part of the reason for the progress reports Is to enable
a probationary employee to be able to ascertain how he is doing and to give
him an opportunity to improve his performance if it is lacking in some
respect. The grievor, who was hired on Sune 16, 1986, ~as not given any
progress report until Sanuary 16, 1987. As noted in the original award at
page 4:
... Certainly the professional evaluation grades hi~ as being
either 'very good' or 'exceptional' in every category~ and the
accounts of both Ms. McFadden-Dunne and Hr. l~ackey, who were
responsible for supervising him at various times, do not suggest
that either had any. serious concerns about his performance. In
fact, Hr. Nackey, who as Chairman of Business performed the
evaluation IExs. 3 & 4~, was very positive tn his assessment of the
grievor as a teaching master and a member of faculty.
Had the grievor gone on to complete his probationary period and to become
an employee with seniority, then the failure of the College to comply with its
progress reporting obligation under Article 8.01Icl would have been cured. It
is the release of the grievor roughly four months after this very positive
report that must give concern, particularly when the College had never given
him notice in the period before Sanuary, 1987 that his performance was
unsatisfactory or that he might not be able to complete his probationary
period. It is therefore reasonable to conclude that the grievor's performance
was at least satisfactory up to January, 1987, and that the reasons for his
release must be related to events which occurred after that date.
The only reason which we have before us concerning the grtevor's release
is that which was given to him pursuant to his request under Article 8.011cl.
The essence of the letter lex. 10) is set out below:
The College views the probationary period as a time to assess
whether it ts tn the best interests of our students and the future
of the Institution to grant a second year of probation and subse-
quently regular status to a probationary employee. The manager of
the department is charged by the college with the responsibility to
only continue a probationary appointment where he/she ts clearly
satisfied that to do so is tn the best interests of the college.
The letter does not in our view give any reasons which are specifically and
explicitly related to the grievor's performance of his duties; it does not tn
our view given any reason other than that the grtevorts continuation was not
considered to be Pin the best interests of the college'. We were never told
directly what those "best interests" were and how they would be affected If
the grievor were retained. The reasons, tn our view, really say nothing of
substance at all about why the grievor was released; that is, a reasonable
person reading the letter could not understand from it the reasons for the
grievor's release.
We recognize that even a probationary employee with a series of
favorable evaluations can do something which is so egregious that it would
Justify his release, or that his performance could deteriorate so that it
would lead the employer to conclude that he should be released, or that some
other situation might arise which would require or necessitate his release.
However, when an employer has positive obligations to appraise performance
and to communicate reasons for the release, those obligations must be carried
out in a reasonable manner, without bad faith, and without arbitrariness or
discrimination. In view of the previous favorable appraisal and the reasons
which the grievor was given, it is reasonable to infer that his performance
was not the problem. Since the reasons given were so vague and imprecise, we
are left without knowing why the College released the grievor during his
probationary period, even though it is obliged to state those reasons to his.
Under these circumstances, it is reasonable to conclude -that the College had
no reason to release the grievor, or that it simply decided to do so based on
considerations which it chose not to conu~untcate. In either case, the grievor
would be left helpless and powerless to satisfy the College during his
probationary period; and, in the latter case, he would be denied the ability
to know whether the College had acted in bad faith, in any sense of the term,
in deciding to release him. To allow the College to exercise its power to
release probationary employees in this way would be effectively to deny the
grtevor whatever rights he has as a probationary employee under Article
8.01[c]. It is therefore our view that, because of the failure to give the
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grievor reasons for his release in this case, an inference of bad faith, In
the broad sense as we were directed by the Court to interpret the term, should
be drawn against the College, and we should find that the College's power to
release the grievor on probation was in fact exercised in bad faith.
If we are in error in interpreting bad faith in this broader ~ray, given
the Court's direction to us to consider bad faith in connection with the code
of conduct and positive obligations set out in Article 8.01{c], we would still
conclude that a finding of bad faith is justified. ~here there is a positive
obligation to give reasons on request, where none are given following the
request, where none are apparent, where every indication is that performance
has been satisfactory, and where the exercise of management's power to release
ts only limited by the requirement to avoid bad faith, then an inference of
bad faith, in any sense of the word, can surely be drawn against the body that
exercised its power and failed to live up to its obligation to give reasons
for that exercise. To find otherwise would be to allow the College the
possibility of hiding some improper, illegal and/ or obstructionist conduct
behind the breach of its positive obligations under Article 8.01lc}, and would
have the effect of denying the probationary employee the rights granted under
Article 8.01Ici which the Court has directed us to heed.
The parties asked us to remain seized of the question of remedy if we
found in favour of the Union and to allow them to try to agree upon the
appropriate remedy. We believe this to be the most sensible approach and will
comply with their request. Accordingly, for all of the reasons set out above,
the grievance is allowed and the board will remain seized of the question of
remedy in the event that the parties are not able to agree on any aspect of
the relief which should flow to the grievor.
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DATED AT LONDON, ONTARIO THIS AY OF ~~ , 1989.
Gall Brent
R. J. Gallivan, College Nominee
I concur / ~t Ron Cochrane, Union