HomeMy WebLinkAboutStewart 16-11-09IN THE MATTER OF AN ARBITRATION
PURSUANT TO THE COLLEGES COLLECTIVE BARGAINING ACT
BETWEEN:
SAULT COLLEGE
(the “Employer” or “the College”)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(the “Union”)
RE: RELEASE OF RICHARD STEWART OPSEU # 2015-0613-0009
PRELIMINARY AWARD #2
Re: Scope of Grievance and Admissibility of Evidence
BOARD OF ARBITRATION
Paula Knopf - Chair
Ann Burke - Employer Nominee
Sherril Murray - Union Nominee
APPEARANCES:
For the Employer: Dan Michaluk
For the Union: Chris Bryden
This Preliminary Award has been issued on the basis of written submissions.
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This case began with the Union filing a grievance on behalf of a probationary
teacher alleging “unjust release/dismissal.” The parties proceeded through the
grievance process and the referral to arbitration. The Union has provided
particulars of its claim, alleging violations of Articles 3, 4, 1, 6, 27.02 D, 27.02 E
and 32. Those particulars are wide-ranging, alleging that the “release/dismissal”
violated the Collective Agreement and was arbitrary, made in bad faith,
discriminatory and done in reprisal for Union activity. The Employer asserts that
it acted within its management’s right to release a probationary employee and
that the release was the result of a departmental reorganization, following the
cancellation, by the Union, of the staffing agreement that had lead to the
Grievor’s hire. Any evidence concerning the merits of the parties’ positions has
yet to be heard.
On October 31, 2016, this Board of Arbitration released a Preliminary Award in
this matter upholding the Employer’s objection to this Board of Arbitration having
any jurisdiction over the issues of whether the release was arbitrary or done in
bad faith. That ruling left many other aspects to the Union’s claim that were
raised in the particulars. Some are the focus of further objections from the
Employer. This second Preliminary Award deals with those objections. They
relate to the scope of the grievance and the admissibility of evidence.
ISSUE A: SCOPE OF THE GRIEVANCE
The Grievance reads:
Violations: Unjust release/dismissal. The College eliminated my
employment and immediately created support staff positions to circumvent
my academic position. There have also been violations of Articles 3,
4, 1, 6, 32 and any other Article, acts of legislation deemed appropriate.
The remedy sought is that the Union and the Grievor are to be made whole, with
reinstatement, full retroactivity of wages, benefits, “other credits” and interest.
The particulars that were provided by the Union include allegations that although
the Grievor received “positive performance appraisals and reviews . . .
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throughout his employment”, he did not receive progress reports at four-month
intervals as required by Article 27.02 D or a timely written response to his request
to be provided with reasons for his release in violation of Article 27.02 E. The
Union wishes to have these two issues heard and determined by this Board of
Arbitration.
The Employer’s Objections
The Employer takes the position that the allegation of a violation of Article
27.02 D raises new facts and issues that were not processed through the
grievance procedure and that the alleged violation of Article 27.02 E concerns
facts that “were not even in existence when the grievance was filed.” The
Employer asserts that this Board of Arbitration’s jurisdiction is limited by Article
32.03, where it provides:
In the event that any difference arising from the interpretation, application,
administration or alleged contravention of this Agreement has not been
satisfactorily settled under the foregoing Grievance Procedure, the matter
shall then be referred to arbitration. . . .
The Employer asserted that the only “matter” raised in the grievance was the
issue of the Grievor’s release so can be the only “matter” that has been referred
to this Board of Arbitration. The Employer submitted that litigating Articles
27.02 D and E would require evidence and legal submissions that were not
encompassed in the grievance itself. Therefore, it was said that only the
Grievor’s release can now be adjudicated by this Board of Arbitration.
Further, the Employer pointed out that boards of arbitration are, and should be,
disinclined to allow issues to be raised in a hearing that were not discussed by
the parties themselves during the grievance procedure. It was asserted that the
issue of quarterly progress reports was not discussed at the grievance meeting,
other than the Union stating that the Grievor had received “high ratings in every
performance review.” In addition, the Employer stressed that the request for
written reasons for the Grievor’s release was made two days after the grievance
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was filed. Therefore, it was argued that no duty to give the reasons had even
arisen when this grievance was filed. Therefore, the Employer submitted that
this issue should not be considered as part of this grievance. In short, the
Employer asserts that any allegations concerning Articles 27.02 D and E amount
to the expansion of the grievance and should be recognized as being outside of
the scope of this hearing. In support of these submissions, the Employer relies
upon the following cases: York Region District School Board v OSSTF, District
16, 2005 CarswellOnt 8425 (Knopf) at para 23; Fanshawe College v OPSEU,
2002 CarswellOnt 5407 (Burkett) at para 11; Daybar Industries and USWA, Local
9042, Re, 2012 CarswellOnt 10952 (Knopf) at para 19; Civil Service Assn of
Ontario (Inc) v Ontario Council of Regents for Colleges of Applied Arts and
Technology, [1975] OJ No 626 (Div Ct) [Fanshawe College (Aitchison)];
Fanshawe College and OPSEU, (Re Goosens), 2015 CarswellOnt 646 [Bendel];
Royal Ottawa Health Care Group and ONA (Chisholm), Re, 2014 CarswellOnt
9220 (Knopf).
The Union’s Response
The Union asked this Board of Arbitration to refrain from taking a “technical
approach” to the wording of the grievance. The Union stressed that the
grievance was “broadly framed” to challenge the Grievor’s release. The Union
asserted that the inclusion of evidence and issues related to Articles
27.02 D and E would not amount to an expansion of the grievance but should,
instead, be viewed as factors that are “inherent” to the grievance about the
Grievor’s release. The Union acknowledges that these Articles are not
specifically listed in the grievance document. However, it was asserted that
these issues were raised and discussed in the parties’ grievance meetings as
part of the challenge to his treatment by the College. It was pointed out that the
Union voiced its complaint about the lack of formal quarterly progress reports and
lack of reasons for release during the grievance meeting, as evidenced in the
“speaking notes” from the meeting. The Union placed great reliance on the body
of case law that recognizes that grievances are not “pleadings” and that the
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parties can clarify the scope of their disputes through discussions during the ir
grievance procedure. Further, it was stressed that the Union made it clear to the
College that it would be putting the failure to provide timely reasons for the
release in issue at this hearing, both during the grievance procedure and in the
particulars that were later provided. Therefore, it was said that these allegations
do not expand a grievance that alleges improper release and that there would be
no prejudice to the Employer if those issues were included in this hearing.
In support of these submissions, the Union relies upon the following cases:
Blouin Drywall Contractors Ltd. v. C.J.A. Local 2486, 2002 CarswellOnt 5407,
[2002] O.L.A.A. No. 1032, 113 L.A.C. (4th) 328; Fanshawe College v.
O.P.S.E.U., 1975 CarswellOnt 827, [1975] O.J. No. 31, 57 D.L.R. (3d) 199, 75
C.L.L.C. 14,295, 8 O.R. (2d) 103, 9 L.A.C. (2d) 26 (note), at paras. 10-11
(Burkett); Fanshawe College v. O.P.S.E.U. 2002 CarswellOnt 5407, [2002]
O.L.A.A. No. 1032, 113 L.A.C. (4th) 328, 71 C.L.A.S. 338, at para. 10 (Knopf);
Daybar Industries Ltd. v. United Steelworkers of America, Local 9042 (Virdee
Grievance), 2012 CarswellOnt 10952, 223 L.A.C. (4th) 126 (Knopf); St. Lawrence
Lodge v. Canadian Union of Public Employees, Local 2107 (Collective
Agreement Grievance), 2013 CarswellOnt 16532, 238 L.A.C. (4th) 263, at para.
42 (Luborsky).
The Employer’s Reply
In reply, the Employer stressed that the Union has indicated “no link” between
the alleged failure to comply with Articles 27.02 D and E and the grievance
concerning the Grievor’s release.
A. Decision regarding the scope of the Grievance
Long ago the courts and arbitrators recognized that grieva nce documents should
not be treated as strictly as court pleadings and that the substance issues
between the parties should not be blocked from resolution on the basis of
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technicalities, see Blouin Drywall Contractors Ltd., and Fanshawe College,
supra. This was summarized in St. Lawrence Lodge v. CUPE, Local 2107,
supra, at para. 42:
The foregoing authorities indicate the written grievance is not
determinative in defining the full extent of the dispute; but rather in
ascertaining the scope of the grievance one is to consider all of the
surrounding circumstances, which is a non-exhaustive list of factors that
includes the context in which the grievance arises, the relevant
discussions of the parties leading up to and in the course of the grievance
procedure, as well as an assessment of whether an issue not explicitly
identified in writing or even the subject of oral or written dialogue between
the parties is nonetheless implicit or inherently joined with the grievance
filed, applying a broad prospective in that analysis.
Nevertheless, the courts and arbitrators have also recognized that an arbitration
hearing should not become a forum where a complaint can be expanded into an
exploration of factual or legal issues that were not encompassed in the original
dispute. That would subvert the grievance procedure and divert the arbitration
from the real issues in dispute; see Fanshawe College and OPSEU, supra.
The goal of arbitration is to resolve the fundamental issues in dispute. This can
be achieved by giving a broad reading to grievance documents and by paying
heed to the issues raised and discussed during the grievance procedure. It is in
that forum that the parties are free from the minefields of legal intricacies and
they are able to discuss the essence of their dispute without concern that their
dialogue will prejudice their rights if the matter has to be referred to a hearing. If
a matter or issue is not raised in the grievance process, it is very hard to see how
or why it should be allowed to be heard at arbitration because that could result in
the grievance process losing its effectiveness or purpose. On the other hand, if
something is important enough to be raised in the grievance process as a matter
related to the original complaint, it becomes something that the parties can
address, and there is little or no prejudice to admitting it into evidence if it
continues to be relevant to the fundamental issue(s) in dispute.
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In the case at hand, the College’s alleged failure to provide written quarterly
progress reports was raised in the grievance meeting as a violation of Article
27.02 D. This is evidenced by the meeting notes filed before us and confirmed in
the Employer’s written submissions. While it is true that the Union has not linked
any failure to comply with this provision as being a factor in the decision to
release the Grievor, at this preliminary stage it is not for the Board of Arbitration
to weigh the importance of such an allegation. Further, there would be no
prejudice to the Employer to deal with this issue because it was given notice of
the complaint from the outset of the parties’ discussions about this case and
confirmed in the particulars. In addition, the issue cannot be said to be one that
should lead to an unwarranted expansion of hearing time or legal issues. It does
not appear that there is any dispute about the p oint that no formal or written
progress reports were given to the Grievor. In fact, the quality of the Grievor’s
performance as a teacher has never been raised as an issue in his release. The
onus will be on the Union to link the lack of progress reports to the remaining
arbitral issues of the Grievor’s release. However, since the lack of written
progress reports was discussed at the grievance meeting, the Union should not
be prevented from raising this as a factual issue during this arbitration concerning
the Grievor’s release. Accordingly, this aspect of the particulars shall be allowed
as part of the hearing. Therefore, evidence about the lack of progress reports is
admissible. However, it should also be noted that no grievance was ever filed
about a violation of Article 27.02 D, nor is there anything to suggest that the
Union is seeking relief for a violation of this Article, per se. Therefore, while the
Union is entitled to attempt to rely on a breach of Article 27.02 D as a factor
related to the Grievor’s allegedly improper release, this hearing shall not become
an Article 27.02 D hearing.
The allegation of a breach of Article 27.02 E is slightly more problematic
because, as the Employer pointed out, the alleged violation occurred after this
grievance was filed. However, the lack of reasons given and/or the reasons for
the release were also raised, front and centre, at the grievance meeting by the
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Union. That ultimately resulted in the Grievor being provided with written
reasons, albeit there is a claim that the delivery was late. Again, the Union has
not explained how this may link to the remaining arbitral issues in these
circumstances. Nevertheless, since the issue itself was discussed at the
grievance meeting and the reasons themselves are critical to both parties’ cases,
evidence about the timing of their delivery should not be excluded from being
considered in an arbitration concerning the Grievor’s release. Further, as will be
explained more fully below, post-release evidence that sheds light on the
reasons for discharge is admissible evidence. This Board of Arbitration will have
to hear about the reasons given for the Grievor’s release. To exclude the
evidence about the reasons would deprive both the Union and the Employer of
critical evidence. Accordingly, this aspect of the particulars and claim must be
allowed as part of the hearing. However, similar to our conclusion with respect to
Article 27.02 D, we note that no grievance was filed about an alleged violation of
Article 27.02 E. Therefore, while we will hear evidence about the delivery of the
reasons for the release, this will not be an arbitration about what relief may flow
from an alleged violation of this provision.
ISSUE B: SHOULD THE UNION BE ABLE TO INTRODUCE POST-RELEASE
EVIDENCE?
The Union’s particulars and opening statements include a number of allegations
about events that post-date his release from employment. The allegations
concern several potentially arbitral issues, including that it was discriminatory, in
reprisal for Union activity, and contrary to the Collective Agreement. The
particulars refer to issues such as:
The reasons given to him verbally about why he was released
The posting and filling of Aviation Technologist and Flight Instructor
positions
The Grievor’s application for posted Aviation Program jobs at the
College around the time of his release
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The Grievor’s discussions with his former supervisor, Greg Mapp,
on or around May 7, 2015 about the Grievor’s possible future with
the College and whether the Grievor played a part in a “work
refusal” that had taken place after his release
The Grievor’s relationship with his father, and his father’s
contemporaneous dispute(s) with the College
The cancellation of student flights after the release of the Grievor
and two other probationary instructors
The work stoppage
Whether the work stoppage was related to perceptions that the
workplace was unsafe
The Employer objects to any “post release” evidence, asserting that it is
irrelevant to the Union’s challenge of the Grievor’s release. This Board of
Arbitration was reminded that we have control over the process of the hearing
and that there is no benefit in allowing any protraction of a dispute where the
allegations would not support any legally recognized concept. Given that the
Union’s allegations that the release was arbitrary and done in bad faith have
been ruled to be inarbitrable, the Employer argued that there is no remaining
prima facie basis to admit any post release evidence. The Employer
acknowledged that the Union continues to assert that the Grievor’s release was a
reprisal connected to the Employer’s perception that the Grievor was involved in
a work refusal and/or connected to the College’s “anger” at the Union for
cancelling a staffing agreement and/or motivated by its prior dealings with the
Grievor’s father. However, the Employer argued that the only evidence that
should be admitted should be evidence that proves or disproves a material fact
or that sheds light on an issue in dispute. It was stressed that any evidence
about the work stoppage is irrelevant because it took place after the College
released the Grievor and therefore could not have been a factor in its decision
about his release. The Employer expressed concern about allowing a wide
scope of evidence that would be “a waste of time and money.”
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In support of these submissions, the Employer relied upon the following: OPSEU
v Seneca College, 2011 CarswellOnt 6423 (Cummings), para 16; Sobeys Inc. v
CAW-Canada, Local 1090, 2008 CarswellOnt 7687 (Knopf), para 11; R v T (M),
2012 CarswellOnt 9258 (CA), para 36.
The Union stressed that a board of arbitration should only exclude evidence at
this stage of the case if it would provide no legal basis for a substantive claim or
for remedial relief. The Union also cautioned that there should be no weighing of
the evidence before the hearing of the merits even begins. The Union submitted
that the evidence it wishes to introduce can shed light on the real reasons for the
Grievor’s release. In particular, the Union asserted that Mr. Mapp’s comments
regarding the work stoppage are relevant to the reliability of the reasons that the
College has given for the Grievor’s release. Further, since the Union is alleging
that the Grievor’s connection to his father and the Employer’s disputes with his
father formed an improper basis for his release, it was asserted that evidence
regarding this issue is relevant to the Union’s case. Therefore, it was stressed
that this evidence is important for it to support the allegations that the Grievor’s
release was discriminatory, and/or done as a reprisal for Union activity.
In support of these submissions, the Union relied upon the following cases:
O.P.S.E.U. v. Ontario (Ministry of Attorney General), 2011 CarswellOnt 5026
(Ont. GSB) (Harris); Fanshawe College v. O.P.S.E.U, 2002 CarswellOnt 9912,
72 C.L.A.S. 74 (Knopf); Cie minière Québec Cartier v. Quebec, 1995
CarswellQue 24, [1995] 2 S.C.R. 1095, 125 D.L.R. (4th) 577, at para. 13;
O.P.S.E.U. v. Ontario (Liquor Control Board) 2008 CarswellOnt 7902, 174 L.A.C.
(4th) 348, 94 C.L.A.S. 13, at paras. 9-10, and 14-15 (Dissanayake).
In response, the College asserts that the evidence that the Union wants to
introduce will change the nature of the case and improperly expand the scope of
this hearing
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B. The Decision regarding the Scope of the Post-Discharge Evidence
Before a hearing begins, there are two factors to take into consideration in
determining whether post-termination evidence is admissible. The first is
whether the allegations raise a prima facie basis for a legally recognized claim or
remedial relief; see Fanshawe College and OPSEU (Gurofsky), supra. The
second consideration is whether the evidence helps to shed light on the propriety
of the termination of employment at the time it was implemented; see Cie minière
Québec Cartier v. Quebec, supra.
In the case at hand, the allegations of bad faith and unreasonabl eness have
been ruled inarbitrable. However, the Union has also alleged that the release
was in reprisal to the Grievor’s perceived connection with a work stoppage and
because of his connection to his father, who has had previous disputes with the
Employer. At this point in the case, there is no ability to weigh the evidence, nor
would it be proper to speculate about whether the allegations are true or whether
they could be proven to connect to the Grievor’s release, see OPSEU v. Ontario
(Ministry of Attorney General), supra. However, if there is any merit to these
allegations, the evidence surrounding the conversation with Mr. Mapp may “shed
light” on the issue of whether the College considered the Grievor to be connected
to the work stoppage and whether this factored into the decisions about his
release. Similarly, the evidence about the allegations that the Employer may
have linked the Grievor to its previous dealings or problems with his father might
“shed light” on the reasons for his release. Therefore, to preclude the Union from
adducing such evidence would improperly thwart the presentation of its case.
However, these conclusions should not be read as an implication or suggestion
that this Board of Arbitration has any intention of allowing the relitigation of any of
the disputes between the College and the Grievor’s father. Nor will we allow any
evidence about the work stoppage or its reasons, other than the fact that it
occurred and any other evidence that may directly be connected to the Grievor
himself.
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This takes us to the Union’s desire to present evidence concerning the Grievor’s
applications for other positions at the College, decisions about the choices of
who filled the other positions in the Department and the impact on studen t flights
and/or safety. We wish to make it perfectly clear that we shall not allow this
hearing to evolve into a job posting or a workplace health and safety dispute.
This is a case about the release of the Grievor. Determining the merits of this
case will require us to hear some things about what happened after his release.
Since the College has alleged that the reasons for release were based on a
change in staffing model, we must hear evidence about the staffing changes that
were put in place. However, we will not allow evidence about who was selected
and why. To allow that would “morph” this case into a job posting grievance.
Further, since the fact of the work stoppage is critical to the Union’s claim that the
release was partly a reprisal for Union activity, we have to hear evidence about
the fact that the work stoppage occurred and anything that may link the Grievor
to it. However, this shall not become a hearing about whether there was any
validity to the Union’s health and safety concerns as a result of the staffing
changes. Those would be matters that cannot be seen to relate to the Grievor’s
release, nor could they shed light on the reasons for his release. Further, they
would unduly prolong these proceedings and involve facts, legal issues and
Collective Agreement provisions that are outside the scope of this grievance or
any of the remedial powers related to this case. Therefo re, any such evidence
will be inadmissible at this hearing.
That being said, it is clear that one issue that is critical in this case is the
College’s decision to change its staffing model and eliminate /reclassify the
position that the Grievor held. Any evidence about that issue is not a post-
release matter; such evidence goes to the core of the Employer’s decision to
release the Grievor. That is the decision that is being challenged by this
grievance. Therefore, any evidence about that decision remains relevant and
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admissible, even if it concerns circumstances that occurred after the Grievor’s
release or after the grievance was filed.
Conclusion
We trust that these preliminary rulings will enable the parties to examine their
positions, determine how to proceed with the introduction of evidence and
estimate how many of the remaining scheduled days are now required to
conclude this hearing.
The case should now proceed to a hearing of the merits or to a mutually agreed
upon resolution of the outstanding issues.
Dated at Toronto this 9th day of November, 2016
__________________________
Paula Knopf - Chair
“Ann Burke”
I concur _________________________
Ann Burke - Employer Nominee
“Sherril Murray”
I concur _________________________
Sherril Murray - Union Nominee
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