HomeMy WebLinkAboutAmato 06-11-08
IN THE MATTER OF AN ARBITRATION
BETWEEN:
CENTENNIAL COLLEGE
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
CLASSIFICATION GRIEVANCE OF MARION AMATO
JANE H. DEVLIN
SOLE ARBITRATOR
TIMOTHY P. L1ZNICK, FOR THE COLLEGE:
ROBIN GORDON, FOR THE UNION:
OPSEU NO.: 2005-0559-0220
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This ruling concerns two preliminary objections to the arbitrability of a
grievance signed by Marion Amato on August 23, 2005 in which she claims that she is
improperly classified as a Support Services Officer B and seeks reclassification to
Support Services Officer Atypical at payband 11. Attached to the grievance at the time
was a PDF dated June 14, 2005.
It was the submission of the College that Ms. Amato's grievance is
inarbitrable as it was not properly processed through the grievance procedure and is,
therefore, deemed to have been abandoned. The College further contended that the
grievance was filed in relation to a PDF, which was in draft form, which was not the
Grievor's official PDF at the time. The parties agreed to address the College's
objections by way of written submissions, which were provided on October 23, October
31 and November 2, 2006.
The submissions indicate that in early 2005, the Grievor was assigned to
the Department of Engineering Technology, Applied Science & Transportation for the
School of Continuing Education and Corporate Training, following which she reported to
Marie Cockburn. In Mayor June, 2005, the Grievor and Ms. Cockburn began preparing
a PDF for the Grievor's position, which they completed on June 14, 2005. They then
forwarded the PDF to the Human Resources Department for rating by the Job
Evaluation Committee. In a letter to the Grievor dated September 22, 2005, Ms.
Cockburn indicated that in view of their agreement on the content of the PDF, it was her
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understanding that the PDF was accurate and complete and ready for rating by the
Committee.
According to the College, the PDF prepared by the Grievor and Ms.
Cockburn was not rated by the Job Evaluation Committee as it was in draft form and
revisions were made to the PDF as a result of discussions which took place in October,
2005. The College advised that the revised PDF was submitted to the Committee on
October 6, 2005 and the Committee confirmed the Grievor's classification of Support
Services Officer B at payband 9. The College further advised that subsequent to the
evaluation, the PDF was returned to the Department for signature by the Grievor and
Linda Neil, who replaced Ms. Cockburn as the Grievor's Supervisor. According to the
College, the PDF was not finalized until January 18, 2006 when it was approved by Ms.
Neil. The College indicated that no grievance was filed to contest the evaluation of the
revised PDF, which took place in October, 2005, nor was a grievance filed with regard
to the PDF, which was signed in January, 2006.
As noted at the outset, the grievance in issue was signed by Ms. Amato
on August 23, 2005. However, the College submitted that it did not receive the
grievance until September 6th. In this regard, the College tendered a grievance form on
which the notation "Received Sept 6" appears beside the name of Aida Haroun, a
Human Resources Consultant, whose telephone number and job title also appear on
the form. In contrast, the grievance form tendered by the Union contains only Ms.
Haroun's name, telephone number and job title. The Union maintained that, in fact, the
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grievance was filed on August 23rd and that there was no suggestion at the time that the
College did not receive the grievance until September 6th.
On September 8th, Ms. Haroun forwarded an e-mail message to Ms.
Amato, which she copied to Larry Goldin, the President of the Local, and Sheila
Draycott-Gregg, a Grievance Officer, which contains the following:
This is in reference to the Classification Grievance Form you sent me.
I am writing to set up a meeting but I understand that the PDF for this position is
in a draft mode and has not yet been evaluated, therefore, it may be premature
to meet prior to the official evaluation, However, if you wish to go ahead with the
meeting, it will be based on a without prejudice basis.
Please let me know so that I can proceed.
On September 9th, Larry Farr, the Chief Steward, wrote to the President of
the College advising that the College had failed to set up a meeting at step I of the
grievance procedure. As a result, Mr. Farr indicated that the Union was referring Ms.
Amato's grievance to arbitration without prejudice to her right "to disagree with the
current PDF which should have been provided by the College for discussion at the Step
I meeting".
On September 12th, Mr. Farr wrote to Ms. Haroun reiterating that the
College had failed to set up a step I meeting within 14 days of receipt of the grievance
as required by the collective agreement. He also indicated that there was nothing in the
language of the collective agreement to suggest that such a meeting was premature
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because the PDF was in draft form and had not been evaluated. Mr. Farr indicated, as
well, that it was the College's responsibility to ensure that the PDF was in proper form
and that it was provided to the Union at least five days prior to the step I meeting. In
this regard, Mr. FaIT's memorandum to Ms. Haroun contains the following:
I have your email of 09/08/2005. Your obligation to arrange for a meeting within
14 days after receiving the grievance is clear and unequivocal. Nothing in the
language of 18.4.2.1 would even hint at your suggestion that a meeting is to be
delayed or postponed or may be premature because the "PDF is in a draft mode
and has not been evaluated". The Collective Agreement clearly sets out that you
"shall ensure" that the current PDF is provided at least 5 days prior to the
meeting. The fact that the College has failed on both counts is just another
example of HR's ineptitude in failing to meet the College's obligation under the
Collective Agreement. If as you say "the PDF is in a draft mode and has not
been evaluated", then it is the College's responsibility to have it ready in its
proper form for a Step I meeting within 14 days after receiving the grievance, and
for you to ensure that it is provided to the Local Union at least 5 days prior to the
meeting.
It goes without saying that your response fails to meet the College's clear
obligations under the Collective Agreement, with specific reference to 18.4.2.1,
and is therefore unacceptable.
The College also produced a number of e-mail messages between Ms.
Haroun and the Grievor dated October 5th and 7th in which Ms. Haroun reiterated her
understanding that the PDF was in draft form and had not yet been evaluated.
The Union advised that on October 12th, Ms. Haroun provided the Grievor
with a revised PDF, which was also dated June 14th, and on October 17th, Ms. Neil
informed the Grievor of the results of the evaluation process in which her classification
of Support Services Officer B at payband 9 was confirmed with a total of 606 points.
The revised PDF and the rating were subsequently discussed by the parties at a
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meeting at step I of the grievance procedure, which was held on a without prejudice
basis in late 2005. According to the Union, the College's reply to the grievance at step
I, which was dated January 23,2006, included the PDF which was discussed at the
step I meeting.
In late June, 2006, Nancy Fisher, Director, Labour Relations and HR
Consulting, advised Mr. Goldin that it was the College's position that as the Grievor's
PDF was in draft form and had not been evaluated when the grievance was filed, the
grievance was premature. Ms. Fisher further advised that in the College's view, the
grievance had not been properly processed through the grievance procedure as the
Union had referred the grievance to arbitration following step I in violation of Article
18.4.2.4.
The relevant provisions of the collective agreement are as follows:
18.2 General Conditions
18.2.1 Time
If the grievor fails to act within the time limits set out at any Complaint or
Grievance Step, the grievance will be considered abandoned.
18.4 Classification Grievances
18.4.1
Grievance to College official
An employee who claims his/her assigned job is improperly evaluated may
present a grievance in writing to the College Official designated responsible for
classification grievances.
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The written grievance must specify the payband claimed by the employee to be
appropriate.
18.4.2
Grievance Process
18.4.2.1
Step I - Meeting and Information Provided
The College Official shall arrange a meeting within fourteen (14) days after
receiving the grievance to permit the employee and a Local Union
Representative the opportunity of making representations in support of the
grievance.
The College Official shall ensure that the current Position Description Form
(PDF) as per Article 7.2.2, is provided at least five (5)days prior to the meeting.
At the meeting, the employee must first indicate in writing whether he/she is in
agreement with the PDF and if not what specific disagreements he/she has with
it. A discussion to resolve any differences shall then take place. At this meeting,
following discussion on the PDF, both parties will exchange, in writing, the point
rating by factor for the position in dispute.
18.4.2.2
College Official's Decision
Within fourteen (14) days after receipt of the point rating by factor from the
Union, the College's Official shall give his/her decision in writing. It is understood
that the grievance cannot proceed further until the point rating by factor and the
specific disagreements on the PDF, if any, have been received by the College
Official, in writing from the Union.
18.4.2.3
Referral to Arbitration after Step I
Where the grievance has not been resolved at Step I but there is agreement
concerning the PDF, the matter may be referred directly to Arbitration by notice
in writing given to the College within fourteen (14) days of the date the grievor
should have received the College's decision under Step I. The matter will be
referred to a single Arbitrator as provided in Article 18.4.3.
18.4.2.4
Step II
Where the grievance has not been resolved and where the grievor is not in
agreement with the PDF, then he/she shall refer the grievance in writing to the
President of the College within fourteen (14) days of the date he/she received or
should have received the decision.
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The President or his/her designee shall convene a meeting concerning the
grievance within fourteen (14) days of the presentation, at which the grievor shall
have an opportunity to be present. The President or his/her designee shall give
his/her decision in writing within fourteen (14) days following the meeting.
18.4.2.5
Referral to Arbitration After Step II
Where the grievance has not been resolved at Step II the matter may be referred
to Arbitration by notice in writing given to the College within fourteen (14) days of
the date the grievor should have received the College's decision under Step II.
The matter will be referred to a single arbitrator as provided in Article 18.4.3. On
mutual written agreement signed by the Local Union and the College, the matter
shall be referred to an Arbitration Board as provided under Article 18.4.4.1.
As noted at the outset, the College raised two objections to arbitrability
and I propose to begin by considering its submission that Ms. Amato could not grieve a
PDF which was in draft form. With regard to that submission, in her grievance, which is
dated August 23, 2005, Ms. Amato claims that she is improperly classified as a Support
Services Officer B. Attached to the grievance at the time was a PDF dated June 14,
2005, which was prepared by the Grievor and her Supervisor, Ms. Cockburn. At the
time, the two evidently regarded the PDF as accurate and complete and Ms. Cockburn
confirmed that view in a letter to the Grievor dated September 22, 2005. In contrast, it
was the College's view that the PDF prepared by the Grievor and Ms. Cockburn was in
draft form and the College pointed out that certain amendments were made to the PDF
in October, 2005, following which it was rated by the Job Evaluation Committee.
While I agree with the College that an employee cannot insist that a
particular PDF be evaluated, there is nothing to indicate that prior to the filing of the
grievance, the Grievor or the Union was advised that the PDF was in draft form. Based
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on the agreement reached with Ms. Cockburn, it was the Grievor's understanding that
the PDF had been finalized, a view which was evidently shared by Ms. Cockburn.
Moreover, although Ms. Amato's grievance was admittedly premature as her position
had not yet been evaluated, if the College intended to object to the arbitrability of the
grievance on that basis, it ought to have done so promptly. However, that did not occur
and instead, in an e-mail message in response to the grievance, which was dated
September 8, 2005, Ms. Haroun suggested only that it might be premature to meet prior
to the evaluation of the Grievor's position. Moreover, as noted by the College, it is not
uncommon for a PDF to be revised or amended after a grievance has been filed and
the provisions of Article 18 dealing with classification grievances are clearly intended to
encourage discussion regarding the content of the PDF. Accordingly, amendments are
often made after a grievance has been filed and, in my view, there is no need to file a
fresh grievance each time a revision is made.
As to the second objection to arbitrability, it was the initial submission of
the College that it did not receive the grievance until September 6, 2005 and that under
the collective agreement, it had a period of 14 days within which to convene a meeting
at Step I of the grievance procedure. As the Union referred the grievance to arbitration
on September 9th, the College contended that the referral was premature. The Union
contended, however, that at the time, no issue was raised regarding the date on which
the grievance was filed and that it is simply too late to raise such an issue at this
juncture. The Union further contended that as the College failed to arrange a meeting
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at step I of the grievance procedure within the 14 day period referred to in Article 18, it
was entitled to process the grievance in accordance with the collective agreement.
When the Union referred the grievance to arbitration, it advised the
College that it was doing so because the College had failed to set up a step I meeting
and I was not provided with any documentation from the College at the time which
suggested that the 14 day period had not elapsed. Moreover, even when Ms. Fisher
raised an issue regarding the processing of the grievance in her letter of June 27,2006,
she claimed that the Union had referred the grievance directly to arbitration following
step I, in violation of Article 18.4.2.4. Accordingly, her objection related to the Union's
failure to refer the grievance to step II, rather than to arbitration. She did not suggest
that the referral to arbitration was premature as the 14 day period within which to hold a
meeting at step I had not elapsed at the time of the referral. That issue, it appears, was
raised for the first time in the College's written submissions and I agree with the Union.
that it is too late to raise an objection of that nature and the objection must be taken to
have been waived.
Nevertheless, the College contended that as there was no agreement on
the PDF in September, 2005, the Union was required to refer the grievance to step II of
the grievance procedure, rather than to arbitration. In this regard, Article 18.4.2.3 of the
collective agreement provides that where the grievance has not been resolved at step I
but there is agreement on the PDF, the matter may be referred directly to arbitration.
Article 18.4.2.4, which is entitled step II, provides that where the grievance has not
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been resolved and the grievor is not in agreement with the PDF, he or she shall refer
the grievance in writing to the President of the College within 14 days of the date he or
she should have received the decision.
Although the Union maintained that it was entitled to refer Ms. Amato's
grievance directly to arbitration as agreement had been reached on the content of the
PDF with Ms. Cockburn, prior to the referral, the Union was advised by Ms. Haroun that
the PDF was still in draft form. In fact, the Union evidently recognized that there could
be some dispute regarding the PDF as it referred the grievance to arbitration without
prejudice to the Grievor's right to disagree with the PDF which the Union maintained
ought to have been provided by the College. The collective agreement, however,
makes it clear that a grievance may be referred directly to arbitration following step I
only if there is agreement on the PDF. In my view, therefore, it was not open to the
Union to refer the grievance directly to arbitration and reserve the right to object to the
PDF. Accordingly, if there is any disagreement on the content of the PDF at this point,
the Union is directed to refer the grievance back to step II, which is one the remedies
requested by the College in its letter of June 27,2006. If, on the other hand, there is
agreement on the PDF, different considerations apply.
While the provisions of Article 18 are intended to foster discussion and an
exchange of information with regard to both the PDF and the factor ratings during the
grievance process, in this case, no discussion took place prior to the referral to
arbitration. However, I understand that a discussion did take place at a meeting which
. . . ...
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was held at step I on a without prejudice basis in late, 2005. In light of that discussion,
provided there is agreement on the content of the PDF, the appropriate course is to
proceed with the hearing as scheduled on November 20, 2006. In keeping with the
intent of the provisions of the collective agreement dealing with classification disputes,
the hearing shall be based on the PDF which was evaluated in October, 2005.
Although the College suggested that the PDF was not finalized until January, 2006, it is
not clear whether there is any material difference between the final version of the PDF
and the PDF which was evaluated in October and any issue in that regard may be
addressed by way of conference call prior to the hearing.
I shall remain seized pending final disposition of Ms. Amato's grievance.
DATED AT TORONTO, this Y!day of November, 2006.
~~t
Sole Arbitrator
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