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HomeMy WebLinkAboutStrever 16-08-04IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION -AND- GEORGE BROWN COLLEGE grievance of Anna Strever, #2014-0556-0004 preliminary award about timeliness Mary Ellen Cummings, Chair Ann E. Burke, Employer Nominee Pamela Munt-Madill, Union nominee Submissions: Lesley Gilchrist for the union Timothy Liznick for the College Award released on August 4, 2016 at Georgetown, Ontario -1- AWARD of the panel 1. The union filed a grievance challenging the employer’s decision to terminate the employment of Anna Strever. The employer asserts that it dismissed Ms. Strever during her probationary period. The union asserts that Ms. Strever had completed her probationary period at the time of the termination. In support of that assertion, the union maintains that the College, in calculating the probationary period, failed to give consideration to work that Ms. Strever had performed for the employer in the past. The College responds that it did not fail to take into account relevant work, but in any event, the union waited too long to grieve the matter. This interim award deals with the employer’s argument that the union’s grievance about how the probationary period is calculated is untimely. Facts 2. The relevant facts are not in dispute. The parties made their submissions in writing. The College appointed Ms. Strever as an academic employee, by letter dated April 4, 2012. The letter advised Ms. Strever that her employment was governed by a collective agreement and said, “as per Article 27 [of the collective agreement] your probationary period has been reduced to 22 months during which time you will be informed of your progress at intervals of four months’ employment” [emphasis in original]. The College asked Ms. Strever to sign back the letter and she did the same day. Ms. Strever started working on June 25, 2012. The College terminated her employment on March 12, 2014, within the 22 month period. 3. The union filed a grievance in respect of Ms. Strever’s termination on March 18, 2014. Among the issues raised, the union asserted that the College should have taken into account work that Ms. Strever had performed in China in calculating the probationary period, with the result that Ms. Strever had passed her probationary period at the time of her termination. She should, therefore, be treated as an employee who had achieved seniority. The College told the union at the March 21, 2014 grievance meeting that it considered the union’s grievance concerning the calculation of the probationary period untimely. Relevant collective agreement language 4. Although Article 27 is referred to in Ms. Strever’s letter of hire, it does not have any provisions that are relevant to this issue. Article 27 sets out the length of the probationary period for various categories of employee. The typical probationary period for employees in Ms. Strever’s classification is 24 months. The collective agreement is silent about giving credit for work performed before an academic appointment. The College’s decision to take into account work that Ms. Strever had performed in the past and reduce the probationary period by two months was presumably, an exercise of discretion to the benefit of the employee. 5. The only relevant collective agreement language is found in Article 32: 32.01 It is the mutual desire of the parties that complaints of employees be adjusted as quickly as possible and it is understood that if an employee has a complaint, the employee shall discuss it with the employee’s immediate supervisor within 20 days after the circumstances giving rise to -2- the complaint have occurred or have come or ought reasonably to have come to the attention of the employee in order to give the immediate supervisor an opportunity of adjusting the complaint…… If the complaint is not resolved with the supervisor, “it shall be taken up as a grievance….provided it is presented within seven days of the immediate supervisor’s reply to the complaint.” Article 32.04A says that “If the grievor fails to act within the time limits set out at any Complaint or Grievance Step, the grievance will be considered abandoned”. Article 32.03D says that the “arbitration board shall not be authorized to alter, modify or amend any part of the terms of this Agreement” and that section 14(16) of the Colleges Collective Bargaining Act, 2008 shall not apply. Section 14(16) gives arbitrators the right to extend time limits but also says that the parties can specify in their collective agreement that the section does not apply. Issue in dispute 6. While the union did not specifically concede that we have no jurisdiction to relieve against the time limits in this collective agreement, there is significant case law to that effect (see for example OPSEU v. Fanshawe College (Dobos grievance) November 26, 1991 (Swan) at page 5). The parties sensibly focused their submissions on the first part of Article 32.01; when did the “circumstances giving rise to the complaint” come or ought reasonably to have come to the attention of the grievor? Submissions and analysis 7. The parties’ submissions and case law focused on the question of when a dispute about the length of a probationary period crystallizes. 8. The union submitted that although the grievor was made aware of the existence of a collective agreement and the employer’s view about the length of the probationary period when she received her hiring letter on April 4, 2012, she would have had no reason to look to the collective agreement until there was a meaningful dispute. In the union’s view, any grievance about the length of the probationary period prior to a consequence or detriment to the employee would be premature. Therefore, the dispute between the parties only crystallized on the date of termination, and so the grievance is timely. 9. In contrast, the employer submitted that the hire letter of April 4, 2012 provided the grievor with all of the information she needed to assess whether there was a dispute. The employer advised that her employment was covered by a collective agreement, gave her a copy of the collective agreement, referred to the relevant article, and told her that the probationary period was 22 months. The employer argued that the grievor had knowledge of the circumstances giving rise to her complaint on April 4, 2012 and so a grievance filed on March 18, 2014 complaining about the calculation of the probationary period is untimely. 10. The College added that it is important to both the employee and the College to know at the outset of the employment the length of the probationary period. Because probationary employees cannot grieve a release from employment, while the termination of an employee with seniority is subject to a just cause standard, the College submitted -3- that knowing the precise date when a probationary period ends “can significantly affect the College’s decision-making”. 11. In our view, only two of the cases filed by the parties are really relevant to this issue. The employer relied on OPSEU and Fanshawe College (grievance of Dobos), November 26, 1991 (Swan). Mr. Dobos had been employed over a number of years through a series of sessional, partial-load and part-time appointments. In particular, he was offered and accepted a “full time probationary” teaching position. The hire letter said that it was a “limited term” appointment and concluded with a reminder that the employment was “temporary”. Approximately 10 months after the grievor accepted the hire letter and completed the assignment, he filed a grievance asserting that he had achieved the status of a full time teaching master. In the meantime, the grievor had accepted another partial load position, without complaint. 12. The arbitration panel accepted the employer’s argument that the grievance was filed too late. The panel found that the terms of the hiring were clear on the face of the hire letter and the grievor “must be taken to have been fully aware of the implications of the letter…” The panel found that the hire letter “was a clear triggering event”. The panel rejected the union’s argument that complaints about status and seniority were continuing grievances. The arbitration board found that the grievance concerned “a single precise complaint about a discrete event”, that is the termination of the full-time temporary teaching position. At page 9, the panel summarized its analysis: Certain steps were taken by the College in relation to the grievor’s employment and status, those steps were taken with the grievor’s full knowledge, and they were taken in a way which offered him an opportunity to inform himself as to the implications of the collective agreement, and to seek assistance from the Union. In those circumstances, the grievor allowed the mandatory time limits to elapse, and the result is that he is deemed to have abandoned any complaint or grievance which arises from those discrete events. 13. We believe that the case before us is analogous. The hiring letter that the College gave to the grievor similarly contained very clear and precise information. The employer advised her that it was applying a probationary period of 22 months. A review of the collective agreement by Ms. Strever would not have told her on what basis the employer relieved against the normal 24 month probationary period. But a review of the collective agreement would have told Ms. Strever that there were time limits to making complaints and bringing a grievance if she disagreed with the employer’s calculation of the 22 months. Ms. Strever had all of the information she needed to know to decide whether to bring a grievance at the time she received the hire letter. The dispute, if any, crystallized at that point. 14. Any other result is unfairly prejudicial to the employer. As it noted in its submissions, clear information about the length of the probationary period is critical to both the employer and the employee. But the consequences for getting it wrong are more serious for the employer. If the employer has miscounted and terminated an employee after the probationary period has passed, then the employer faces an employee with full access to the grievance and arbitration procedure and a right to be terminated only when the just cause standard is met. If the employer miscalculates through its own error, so be it. -4- 15. It is a different matter, though, if the union and/or the grievor, with prior knowledge of the employer’s position, wait until the prejudice has occurred, and then seek to grieve the matter. In our view, that is what has happened in this case. The grievor knew when she was hired that the employer was giving her the benefit of a two month reduction in the probationary period and so, she needed to serve 22 months of probation. If she believed that she should have received credit for more of her previous work, she should have raised it at that point, when the employer could have preserved its position. It could have revised the probationary period or it could have ensured that it made a decision about the grievor’s future employment within the time limit that she and the union asserted was the appropriate length of the probationary period. Or, the employer could have maintained its position, and taken its chances. By remaining silent, the grievor deprived the employer of considering those options, with the result that the employer is now prejudiced. If we permit the grievance to proceed and the grievor is successful, then she will be an employee with seniority, subject to a just cause standard for any termination. That would not be a fair result. 16. We have given careful consideration to the decision in Canadian Broadcast Corporation v. CUPE (Pagé), (1985) 21 L.A.C. (3d) 389 (Picher) relied on by the union. On its face, the decision has a lot in common with the case before us. Ms. Pagé was hired to a position with a three month probationary period. The collective agreement allowed the employer to extend the probationary period in certain circumstances, upon written notice to the employee. The notice had to be given before the end of the initial probationary period. The day after the end of the probationary period, the employer advised Ms. Pagé in writing that it was extending her probationary period. During the extension, the employer terminated Ms. Pagé’s employment. The grievance with respect to the termination included a complaint that the employer had improperly extended the grievor’s probationary period. The employer sought a preliminary determination that the grievance was out of time because Ms. Pagé did not grieve at the time she received the extension letter. The arbitrator rejected the employer’s timeliness argument, concluding that the employer’s letter was a mere opinion about the grievor’s status: At most, the letter which Ms. Pagé received…is a statement by the Corporation as to its view of her employment status. The status of an employee, and in particular whether he or she is a probationary employee is not a matter entirely in the discretion of the Corporation. Employee status is controlled by the terms of the collective agreement, and the Corporation’s discretion is to that extent limited or constrained. If an employee has the status of a full time, continuing employee, that status is fixed in law, and cannot be altered by a unilateral assertion to the contrary by an officer of the Corporation. 17. Arbitrator Picher concluded that the grievor had no obligation to grieve the letter that purported to extend her probationary status unless and until the employer’s opinion “has some meaningful consequence for the parties”, in this case, at the point the employer terminated Ms. Pagé’s employment and asserted that she was still a probationary employee: In the circumstances, was there an obligation on the part of the grievor to grieve the letter advising her that her probationary period was being extended? I think not. First, there was at the time of the notification no i mmedi at e pr act i cal consequence t hat was cl ear l y adver se t o t he grievor. She could reasonably have expected that in all likelihood nothing would come of the Corporation’s position that she was still probationary, and that she would be confirmed in her position…If that sequence of events unfolded, there would be no harm done to the grievor. It is -5- understandable that an employee should be reluctant to precipitate a dispute with his or her employer, particularly wh e r e t h e me r i t s o f t h e d i s p u t e mi g h t we l l b e c o me academic. In the arbitrator’s v i e w , i t i s w h e n t h e d i s p u t e c e a s e s t o b e a c a d e m i c a n d h a s s o m e m e a n i n g f u l consequences for the parties, that the obligation to grieve arises. In the instant case that happened only when the Corporation purported to release the grievor as a probationary employee…At that point, the previously expressed position of the Corporation matured into an action of obvious consequence to Ms. Pagé. 18. In its submissions, the union relied on Canadian Broadcast Corporation v. CUPE (Pagé) for the proposition that any grievance about the length of the probationary period prior to the existence of a consequence or detriment to the grievor would be premature; the dispute between the parties only crystallized at the date of Ms. Strever’s termination from employment. According to the union, prior to the termination date, there was no “difference” between the parties. Moreover, it is more efficient for the parties to wait until a difference has crystallized. In this case, the union argued that until the date of her termination, Ms. Strever had no basis to treat the length of her probationary period as important. She had no reason to expect that the length would affect any of her collective agreement rights. It was only when she was terminated that the length of the probationary period became meaningful and the difference between the parties crystallized. 19. Further, the union argued, employees should not be encouraged to grieve matters “just in case”. We also note that employees who are on probation may be particularly reluctant to file grievances because of a perception that they are more vulnerable to termination without recourse. 20. With respect, we do not read the Canadian Broadcast Corporation v. CUPE (Pagé) decision as standing for the broad proposition that any grievance about the length of the probationary period prior to the existence of a consequence or detriment to the grievor would be premature. In that case, at the time the employer wrote to Ms. Pagé, the relevant events had occurred, and as Arbitrator Picher noted, the grievor would reasonably expect that nothing would come of the employer’s position that she was still on probation. The employer’s late recasting of events was just an opinion that would not affect her status if, under the language of the collective agreement, she had passed her probationary period. Not surprisingly, Arbitrator Picher ultimately concluded that the employer had not complied with the collective agreement in purporting to extend Ms. Pagé’s probationary period. 21. In contrast, in the case before us, at the time the College told Ms. Strever its view that the probationary period was 22 months, she was at the beginning of her probationary period. It is true that there would be no consequence to her and the issue would remain academic, if her performance was satisfactory and she passed the probationary period that the employer had identified. But there would be a consequence to the employer if its calculation was wrong, and Ms. Strever was entitled to serve a shorter probationary period. The issue was not academic to the employer if Ms. Strever disagreed. In our view, the employer was entitled to know about that disagreement before it was prejudiced. To use the words of Arbitrator Picher the obligation to grieve arose when there were “meaningful consequences for the parties”. In this case, if at the point that Ms. Strever received her hire letter she thought that she was entitled to a shorter probationary period, the employer was entitled to know. Otherwise, the employer was at risk of unknowingly retaining Ms. Strever until she became an employee with seniority, subject to the just -6- cause standard for termination, and with all the rights and benefits of the collective agreement. That would be a meaningful consequence to the employer. 22. We are also concerned that if we were to decide that a grievor could wait until his or her employment was terminated before complaining that the employer had not sufficiently taken into account prior work to reduce the probationary period, then in future, the College, out of an abundance of caution, would apply the strict terms of the collective agreement, and never reduce the probationary period for new hires. Since a reduction in a probationary period is generally beneficial to employees and rarely, if ever, beneficial to the employer, that would an unfortunate result for members of the bargaining unit. 23. We conclude that if Ms. Strever believed that the College had wrongly calculated her probationary period, she was obliged to raise the issue shortly after she received her hire letter on April 4, 2012. Since she did not complain until March 18, 2014 that aspect of the grievance is untimely. Disposition 24. The part of the grievance that complains about how Ms. Strever’s probationary period was calculated is dismissed as being untimely. 25. After the parties have had an opportunity to consider the award, we ask that they advise us about next steps. Signed at Georgetown Ontario, this 4th day of August 2016. Mary Ellen Cummings, Chair Ann E. Burke, Employer nominee I concur Pamela Munt-Madill, Union nominee I concur