Loading...
HomeMy WebLinkAboutBlair (Mynerich) 07-02-03 fIl yZ I c200 f ---q,S,b -ooo} IN THE MATTER OF AN ARBITRATION UNDER THE COLLEGES COLLECTIVE BARGAINING ACT BETWEEN Ontario Public Service Employees Union ("the Union") R EC w=-i~~;;~ AND FEf3 0 8 200/ ,. N , GRIEVANCe LJU"n 11I<,tNT Cambrian College of Applied Arts and Technology ("the Employer" or "the College") And in the matter of the grievance of R, ("the grievor") who claims that she has been "discharged without just cause". And in the matter of a preliminary motion by the College to dismiss the grievance because it is not arbitrable, and because, on its face, it discloses no breach of the collective agreement. ---------------------------------------- BEFORE R.O. MacDowell Sherril Murray Marc Piquette (Chair) (Union Nominee) (College Nominee) APPEARANCES For the Union: Mary Anne Kuntz (Counsel) Katherine Hilyer For the College: Timothy Liznick (Counsel) A hearing in this matter was held in Toronto, Ontario on January 8, 2007. RULING I - Introduction: This Ruling deals with a preliminary motion by the College to dismiss this grievance, because (according to the College) the grievor's claim that she has been "discharged without just cause" is not arbitrable, and because the grievance, on its face, discloses no breach of the employer's collective agreement obligations. We will refer to the grievor simply as "R". There is no need to identify her by name. II - What this case is about. in brief This arbitration proceeding arises from the grievance of R ("the grievor") who contends that she has been "dismissed without just cause". R's grievance is dated May 19, 2006, and reads as follows (emphasis added): "STATEMENT OF GRIEVANCE" The employer is in violation of relevant proVIsIOns of the Collective Agreement on, or about, May 12, 2006 by un;ust dismissal under articles 16.1, 16.2 and any other articles or Acts that may apply. SETTLEMENT DESIRED Full redress, including, but not limited to, reinstatement to my position in the Registrar's Office or to an equivalent position in the Bargaining Unit." 2 At the time of her termination, the grievor had been employed by the College, as a clerk, for only a few months. She had not yet completed her 6 month probation period. Her letter oftermination reads this way (emphasis added): As per the reasons outlined in our conversation, as well as the review of your work competencies during your probationary period, I have made the decision that I cannot recommend you continue your full-time employment at Cambrian College. Your last day of work will be today, Friday, May 12, 2006. We will be providing you with two weeks pay in lieu of notice. Any outstanding overtime and vacation entitlement will be paid accordingly. The grievor complains that the College has acted improperly and in breach of its obligations under the Support Staff Collective Agreement, because (we are told), the grievor's supervisor did not give her sufficient formal feed-back or "mentoring" with respect to her work performance; and thus, in the grievor' opinion, she did not have a fair opportunity to meet the College's performance expectations. That is why the Grievance Form refers to Article 16.1 of the Collective Agreement: a provision that deals with formal performance appraisals (see below). The Union maintains that the employer's decision to terminate the grievor's employment was 'therefore' "arbitrary", or "discriminatory", or motivated by "bad faith". The College replies that under the terms of the Support Staff Collective Agreement, probationary employees have no right to grieve their termination on a 'just cause basis", nor does the College need to demonstrate 'just cause" before discharging a probationary employee. Moreover, the clauses to which the grievance refers, (Article 16.1 and 16.2) have no application to R, or to her situation; and no other provisions of the 3 Collective Agreement are referred to or relied upon. And (according to the College) there is no "statutory" foundation for the claim either; since there no relevant "Acts" - to pick up the language of the grievance. There is no suggestion, for example, that the grievor was terminated because of her union activity, or for a reason prohibited by the Ontario Human Rights Code. The College submits, therefore, that there is nothing in the material submitted by the Union/grievor that would support any breach of the Collective Agreement, express or implied; nor is there anything in the grievor's statement of complaint that even suggests (let alone demonstrates) any impropriety on the College's part. The College maintains that it was entitled to monitor or reVIew the grievor's performance, on an ongoing basis, as issues arose; and that it was not obliged to perform some formal assessment, of the kind contemplated by Article 16.1 (which deals with filing and notice to employees, not the appraisal itself). The College says that no adverse inference can be drawn from not doing something that the employer was not required to do in the first place. In summary then, the College submits that this grievance is not arbitrable as an "unjust discharge"; nor is there any "case to meet" on the Union's alternative submission ("arbitrariness", "bad faith", "discrimination") - a submission which, College Counsel complains, was not even raised in the grievance itself, where (it will be noted) 4 there is no such assertion. In the result, the College submits that this grievance should be dismissed, on a preliminary basis, because, on its face, it provides no foundation for proceeding further. III - Some Mechanics R's grievance was filed on May 19, 2006, and (as we understand it), the grievance was processed through the required steps of pre-hearing discussion, set out in the Grievance Procedure. We do not know what was discussed. But since there was no resolution of the grievor's complaint, the matter was referred on to arbitration. The parties are agreed that this Board of Arbitration has been properly appointed under the terms of the Collective Agreement, and that the Board has jurisdiction to hear and determine the matters in dispute between them - including, any question as to whether this particular grievance is "arbitrable". The parties are further agreed that the Board should first determine whether the gnevance should be dismissed on the preliminary basis outlined by the Employer above. Finally, the parties are agreed that we may make this determination on the basis of the written material put before us, read in light of the terms of the Collective Agreement, and certain cases to which we were referred: Re St. Lawrence College and 5 OPSEU (McDermott Grievance) December 21, 1987 (Brent), application for judicial review granted, February 17, 1989; final decision issued November 8, 1989 (all unreported); Re OPSEU and George Brown College (grievance of Lee-Ann McLaughlin), decision released December 7, 1984 (Brunner), unreported; Re Algonquin College and OPSEU (1986), 22 L.A.C. (3d) 129 (Brent); Re Norfolk Association for the Mentally Retarded and OPSEU, Local 221 (1990), 10 L.A.c. (4th) 252 (Verity); Re Hawker Sidley Canada Inc., Orenda Division and International Association of Machinists, District Lodge 117 (1991), 21 L.A.c. (4th) 289 (Joyce); Re Seneca College and OPSEU (E.G. O'Neil grievance), decision released February 28, 1984 (Brent) unreported; Re OPSEU and Ontario Property Assessment Corporation (Ian Morrison grievance), decision released December 20, 2000 (MacDowell), unreported. * The Collective Agreement contains the following provisions: 3. MANAGEMENT FUNCTIONS 3.1 Union Acknowledgements The Union acknowledges that it is the exclusive function of the Colleges to: - maintain order, discipline and efficiency; - hire, discharge, transfer, classify, assign, appoint, promote, demote, layoff, recall and suspend or otherwise discipline employees subject to the right to lodge a grievance as provided for in this Agreement; - generally to manage the College and without restricting the generality of the foregoing, the right to plan, direct and control operations, facilities, programs, courses, systems and procedures, direct its personnel, determine complement, organization, methods and the number, location and classification of personnel required from time to time, the number and location of campuses and facilities, services to be performed, the scheduling of 6 assignments and work, the extension, limitation, curtailment or cessation of operations and all other rights and responsibilities not specifically modified elsewhere in this Agreement. The Colleges agree that these functions will be exercised in a manner consistent with the provisions of this Agreement. 14.1 Probationary Period An employee will be on probation until he/she has completed six (6) months of employment with the College in any twelve (12) month period. At the discretion of the College, the probationary period may be reduced for an individual employee to such period of time as the College may determine. On successful completion of the probationary period, he/she shall then be credited with seniority equal to the probationary period served, and seniority thus acquired shall be applied in the manner set out in this Article. 16.1 Performance Appraisal The copy of an employee's performance appraisal which is to be filed on the employee's record shall be given to the employee in advance. The employee shall initial such appraisal as having been read within seven (7) days of receipt of a copy of such appraisal. If the employee wishes, he/she may add his/her views to such appraisal within such seven (7) day period. A notice shall be printed on the performance appraisal stating "The employee's rights concerning performance appraisals are found under Article 16.1 of the Collective Agreement.". In preparation for the performance appraisal process, the Supervisor shall review the employee's PDF to determine if it is current. 16.2 Disciplinary Notice Each employee shall receive a copy of any formal disciplinary notice that is placed in his/her personnel file. With the consent of the employee concerned, notification shall be given to the Local Union that a disciplinary notice is being served on the employee. 7 18 18.1.4 18.2.1 18.6. 18.6.1 COMPLAINTS/GRIEV ANCES "Grievance" means a complaint in writing arising from the interpretation, application, administration or alleged contravention of this Agreement. If the grievor fails to act within the time limits set out at any Complaint or Grievance Step, the grievance will be considered abandoned. Grievance re: Dismissal, Suspension, Layoff or Reassignment General Articles 18.6.2 and 18.6.3 (the grievance and arbitration procedures and "just cause protection" - see below) apply to an employee covered by this Agreement who has completed his/her probationarv period. it beinl! understood that the dismissal. suspension or release of an emplovee durinl! the probationarv period shall not be the subiect of a I!rievance. 18.6.2 Grievance An employee who claims he/she has been dismissed or suspended without just cause or improperly laid off or reassigned, shall, within fifteen (15) days of the day he/she is advised in writing of his/her dismissal, suspension, layoff or reassignment present his/her grievance in writing to the President, commencing at Step No. 3 and the President and his/her designee shall convene a meeting and give the grievor and the Union Steward hislher decision in accordance with the provisions of Step No. 3 of Article 18.5.1.3. A Union Staff Representative may be present at such meeting at the request of either the College or the Local Union. 18.6.3 Arbitration If the grievor is not satisfied with the decision of the President, the grievor shall, within ten (10) days of receipt of the President's decision, by notice in writing to the Director of Personnel or the College's Designee, refer the matter to arbitration, as provided in this Agreement. 8 18.6.4 The Arbitration Board shall have the powers set out in the Colleges Collective Bargaining Act, 1990 18.6.5 The Arbitration Board shall not be authorized to alter. modiry or amend any part of the terms of this Agreement nor make any decision inconsistent therewith nor to deal with any matter that is not a oroper matter for f!rievance under this Agreement. For comparison purposes, we should also record Article 27.02 D and Article 27.02 E of "Academic Collective Agreement", which pertains to the College's teaching staff: 27.02 D During the probationary period an [Academic] employee will be informed in writing of the employee's progress . at intervals of four months continuous employment of four full months of accumulated non-continuous employment and a copy given to the employees. 27.02 E A probationary employee may be released during the first five months of continuous or non-continuous accumulated employment following the commencement date of the employee's employment on at least 30 calendar days written notice and during the remainder of the employee's probationary period upon a least 90 calendar days' written notice. If requested by the employee, the reason for such release will be given in writing. The Academic Collective Agreement reqUIres the College to inform probationary teachers of their progress - periodically, and in writing, The Support Staff Collective Agreement does not. In other words, probationary employees under the Support Staff Collective Agreement work under a different legal regime, which does not require the employer to conduct the kind of formalized written evaluation, which pertains to teachers (who also have a longer probation period). 9 There is no dispute that employees under the Support Staff Collective Agreement, have different rights and obligations than "teachers", covered the Academic Collective Agreement, negotiated by these same bargaining parties. Moreover, it is also common ground that under the Support Staff Agreement, probationary employees, have far fewer "rights" or "rights to challenge things", than do "regular/permanent" employees, who have completed their probation period. Thus, under the Support Staff Collective Agreement, probationary employees do not have seniority rights (Article 14.2.3); they do not have protection from layoffs (Article 15.4.1); they do not have access to job po stings (Article 17.1.1); and so on. Nor does the employer have to establish "just cause" to terminate a probationary employee. In the result (and subject to a qualification to which we will return later), the situation of probationary employees is not markedly different from what it would be for an employee, "at common law". A newly-hired employee does not come to enjoy the full panoply of collectively bargained rights, until s/he has completed the probation period; and during that probation period, the employer is given considerable latitude to decide who will become a member of its permanent staff. And if the employee is considered "unsuitable", s/he may be terminated, on appropriate notice or pay in lieu of notice - just like an employee at common law. The employer need not show "just cause" for such termination of employment. 10 IV - Discussion We might begin by observing that pursuant to section 46(1) of the Colleges Collective Bargaining Act and Article 18.7 of the Collective Agreement an aggrieved support staff employee has a prima facie right to proceed to arbitration with any dispute arising from "the interpretation, application, administration or alleged violation" of the collective agreement -"including any questions as to whether a matter is arbitrable". The parties have negotiated a "right to grieve"; and failing settlement of such grievance, there is a prima facie right to proceed to arbitration with the employee's (or the Union's) complaint. However, emphasized words in the previous paragraph are important; because they suggest that not every complaint is "arbitrable"; and thus an arbitrator may be called upon to make that determination before dealing with the alleged "merits" of the dispute. In other words, there can be a preliminary question of "arbitrability"; and if the grievance is not "arbitrable", it may be dismissed. There is nothing unusual about this. Because the highest Court in this Province has made it clear that certain kinds of employee concerns may be excluded from the collective agreement and the arbitration process altogether; and certain grievances may be prevented from getting to arbitration if they have not been properly processed in 11 accordance with the procedural requirements of the collective agreement (see: Sun Life Assurance Co. of Canada Limited v. National Automobile Aerospace, Transportation and General Workers Union of Canada, (2000) 135 O.A.C. 115 where LTD claims were held not to be arbitrable under the collective agreement; and Leisure World Nursing Homes Ltd. v. SEIU (1997),99 O.A.C.196; affd 75 A.C.W.S (3d) 854 (Ontario C.A.) where it was held that a failure to follow the time limits in a collective agreement, meant that the complaint was not "arbitrable"). * A gnevance may not be "arbitrable" either because the collective agreement does not regulate the subject matter of the complaint, or because the employee/union has not followed the proper procedure to engage the arbitration process. * The point is: not every employee complaint is "arbitrable"; and not every potentially arbitrable dispute, can actually be dealt with at arbitration. It depends upon the facts of the case, the nature of the complaint, and the provisions of the applicable collective agreement. * So what does the Support Staff Collective Agreement have to say about the rights of a probationary employee to grieve his/her termination? * 12 On its face, Article 18.6.1 of the Agreement purports to remove from the grievance and arbitration mechanisms set out in Article 18, any complaint about the termination of a probationary employee - including the complaint [Article 18.2] that s/he has been terminated "without just cause". The clear intention of the parties is that this kind of complaint is "not arbitrable" - on a just cause basis, or at all. And lest there be any misunderstanding about the parties' intentions in this regard, Article 18.6.1 goes on to say "it being understood that the dismissal. suspension or release of an employee during the probationary period shall not be the sub;ect of a grievance". Looking at the words of the Collective Agreement, therefore, it might be thought that the College's decision to terminate a probationer is completely unreviewable; and it is certainly unreviewable on a 'just cause" basis. The parties have expressly excluded this kind of probationer complaint, thus putting probationers in a very different position from regular employees. Moreover, under Article 18.6.5 of the Collective Agreement, an arbitrator has no jurisdiction to a supplement the obligations or processes prescribed in the collective agreement. - to add something that the parties did not negotiate (or, as here, that they have expressly excluded). And the Colleges Collective Bargaining Act does not contain any freestanding statutory power to review the termination of employees - probationary or otherwise. We might also observe, parenthetically, that the provisions of the Support Staff Collective Agreement are not unusual in this regard. They are, in fact, fairly 13 common in the labour relations world; where it is recognized that it is open to the parties, (and often quite sensible), to give the employer the kind of discretion, in respect to probationary employees, that it would have at common law - which is to say: that permit the employer to discharge such new employees, on notice, or with pay in lieu of notice. Indeed, it may be in the union's interest not to burden the arbitration process with the complaints of these, still contingent, bargaining unit members; or to expend the union members' scarce resources on this kind of contest. And despite a current of judicial authority that suggests that the parties cannot "oust" the "statutory right" to go to arbitration, it is now well established that, with appropriate contract language, the parties may preclude a probationary employee from asserting that he was "dismissed without just cause". It is a "bargain-able item", like any other; and in a free collective bargaining system, the parties can define the terrain on which there can be disputes between them (See generally: Mitchnick & Etherington, Labour Arbitration in Canada Lancaster House, 2006 at pp.53-55; and note once again, that the statute itself appears to contemplate the parties' ability to prescribe what their collective agreement will cover, and what will be "arbitrable"). In summary then, the parties are entitled to oust the general 'just cause" protection ofthe collective agreement, if they do so clearly - as, it is agreed, the parties in the instant case have done in the Support Staff Collective Agreement. Because it is well established, that under this Collective Agreement.. a probationary employee has no "substantive right" to assert that s/he has been discharged "without just cause", nor does s/he have any right to arbitrate that claim (or to put the matter more accurately: s/he may 14 be able file a grievance about it, but such grievance will be unfounded, on its face, because it will not disclose any breach of the collective agreement). * Be that as it may, it is also common ground that under this Collective Agreement (and despite Article 18.6.1), the College's right to discharge probationary employees is not completely unfettered. On the contrary, it its conceded that management must still exercise its discretion to terminate probationary employees, in a manner that is not arbitrary, or discriminatory, or motivated by bad faith. There cannot be what we will call in this decision: an "abuse of managerial discretion". Where does this obligation come from, if the collective agreement has to be in writing (as it does), if there are no words in the collective agreement to this effect (as there are not), and if the arbitrator is ostensibly precluded from adding words or obligations to which the parties have not agreed (Article 18.6.5) ? How is it that a probationer can still complain about his/her termination, despite the clear wording of Article 18.6.1 (see above)? The answer lies not in the express language of the Collective Agreement, but rather in what arbitrators have said about the exercise of managerial discretion under 15 Article 3. Because, despite the language of Article 18.6.1 and Article 18.6.5 of the Collective Agreement, arbitrators have superimposed or implied this restriction on the exercise of "management rights"; and for the purposes of this case, that proposition is not challenged. However, unlike cases involving the discharge of an employee who has completed his/her probation period, it is the union which bears the onus of proving of that management's exercise of discretion was improper; and it seems to us that before embarking upon a time-consuming and expensive litigation inquiry, it is incumbent upon the union to stipulate what it is (i.e. what the employer has done), that falls within these parameters. Otherwise, an aggrieved employee need only raise the verbal formula "arbitrary, discriminatory, bad faith", and the arbitration process is engaged - the very result which, it is apparent, the parties have sought to avoid, by the contract language reproduced above. Indeed, it would rob those clauses of much of their practical utility if the employer (and the union) found itself embroiled in time consuming and costly litigation, merely on the bald assertion, without more, that the employer has acted improperly ("bad faith", "discrimination"). * So what does the current grievance say, that, if accepted, would make out a "prima facie case" of what we have called, for convenience, an "abuse of discretion"? * 16 Or to put the matter another way: assummg, without finding, that the statements in the grievance document are all true and provable, would those statements, support the inference of an "abuse of discretion" - which is to say: that the College has acted in a manner that is "arbitrary", discriminatory" or "in bad faith"? * In our view they would not. * Because all the grievance complains about, is a failure to provide some kind of formalized performance appraisal, and none is required by the Collective Agreement under review. On the contrary, that managerial activity is one of the "exclusive" "Management Rights" which is preserved by Article 3.1 of the Collective Agreement; and is unfettered by any procedural or substantive constraints found in Article 3.1, or elsewhere in the Collective Agreement. * The Collective Agreement before us (unlike the Academic Collective Agreement), does not prescribe any settled process for "feedback" or "mentoring" or telling the new employee how s/he is doing. It does not stipulate or regulate the content of training or communications. Nor, given Article 18.6.5 would it be appropriate for an arbitration board to imply such formal obligations. Moreover, it is worth noting that the bargaining parties in this case "know the words to use" when they wish to bind the employer in this way. Because they have used those very words in the Academic 17 Collective Agreement. But, they have not used those words in the Support Staff Collective Agreement; and in this regard, the situation before us is distinguishable from the one that engaged the attention of the Divisional Court in the St. Lawrence College (McDermott grievance) case supra. The St. Lawrence College case arose under the Academic Collective Agreement, which has a prescribed process for formal evaluation; and in our view, a close reading of the Divisional Court's decision, reveals that the Court was simply requiring the arbitration board to consider the "abuse of discretion" argument in the manner described above. The Court held that a failure to apply, to the grieving teacher, a performance review procedure that was explicitly prescribed in the collective agreement [see Article 27.02, above] and that was supposed to apply to all probationers, was at least some evidence of "bad faith", which should have moved the Board of Arbitration to hear the union's evidence in this regard. There was a manifest and acknowledged breach of the Collective Agreement, and the Court suggested that it was therefore appropriate to ask: why? - was it motivated by "bad faith"? The Court was not requiring the Board of Arbitration to reach any particular conclusion on the facts before it, but rather, merely said that the Board should receive the union's evidence in that regard; and of course, we are not "bound" by the opinion of that arbitration board, even if the facts and contractual context were the same - which they are not (see Laurent Isabelle et. al v. The Ontario Public Employees Union (1981) 81 CLLC p. 259 (S.C.C)). 18 The present grievance is not like the St. Lawrence College case at all. In the instant c.ase, there is no obligation (as there is in the teachers' collective agreement) to undertake any formalized process of performance appraisal; and there is nothing to prevent the employer from simply reviewing the grievor's work competencies (as the letter to the grievor says it did), and concluding either that the probationer does not meet the standards that the College expected, or that s/he was otherwise unsuitable for permanent employment. There is no manifest breach of the collective agreement to trigger a collateral enquiry into the employer's "good faith". This case is different from St. Lawrence College; and we do not read the Divisional Court as saying that the arbitration mechanismlhearing must be engaged, simply because someone (rather belatedly here) asserts "bad faith" etc. v - Decision In the instant case, the statement of grievance (recall that the Collective Agreement requires the grievance to be in writing, so that the parties will know what the complaint is about) complains of a breach of the just cause provision - which, it is agreed, has no application to probationers like the grievor. There is no attack on managerial discretion, as such; nor is there any suggestion that the employer has "abused its discretion" or acted in a manner that is "arbitrary" or discriminatory" or "in bad faith". 19 Nor does the grievance point to any particular facts, or to any default on the employer's part, other than an alleged failure to do some kind of formal performance appraisal. However, as we have already noted: under the Support Staff Collective Agreement (in contrast to the teachers' collective agreement) no such formal performance appraisal is required. Nor does Article 16.1 mandate the conduct of a formal performance appraisal. Rather, Article 16.1 speaks only to the safeguards or process which pertains, IF such assessment is done. And there is nothing in the grievance that suggests, for example, that such was done for some probationers and not others (i.e. that there has been "discrimination" on the employer's part). In the circumstances, we do not think that it would be appropriate to infer "arbitrariness" or "discrimination", let alone "bad faith", simply because the Employer has not done the kind of formal appraisal to which Article 16.1 relates - a formal assessment which the Employer is not required to do, under this Collective Agreement. We accept the College's submission in this regard; and the gnevance identifies nothing else in the College's behaviour which would constitute an "abuse of discretion" of the kind described above. 20 This is not to say that, in an appropriate case, the employer's behaviour might not provide evidence of an "abuse of discretion". On the contrary, either particular incidents, or a pattern of conduct, may well lead to that inference. However, it seems to us that if the Union seeks to rely upon an alleged "abuse of discretion", (i.e. an assertion of "bad faith", "discrimination" etc.) in order to precipitate a time consuming and expensive formal enquiry, it must say so - and at the very least, identify some behaviour which, if proven to be true, supports the inference of "bad faith" etc. And the grievance, as written, has not done so here. It simply alleges "unjust dismissal", flagging provisions that do not apply to probationary employees at all. To put that matter another way: in the face of very clear contract language stipulating that "the dismissal, suspension, or release of an employee during the probationary period shall not be the subject of grievance", it seems to us that there should be some clear statement in the grievance that engages the narrow exception that arbitrators have grafted, by implication, on to the exercise of the Management Rights, preserved by Article 3.1. And this grievance contains no such allegation;. For as Counsel for the College fairly points out: it does not even allege "bad faith", "discrimination" (etc.), but rather relies on provisions of the agreement that have no application to the grievor's situation at all. Weare satisfied that the written material put before us does not disclose any arguable breach of any employer obligation under the Collective Agreement; nor is 21 there any general right of a probationer to challenge his/her termination on a 'just cause" basis. In other words: the grievance of May 19, 2006 raises no "case", for the employer to meet. To be clear: we are not saying that the Employer was correct in its assessment of the grievor's abilities. Nor are we suggesting that the grievor was a "bad employee". The question before us, rather, is whether the grievance set out above, provides a foundation for reviewing management's assessment of her performance, and its decision not to offer her permanent employment. And we are satisfied that it does not. The grievance of May 19,2006, is therefore dismissed. Dated at Toronto this 3rd day of February 2007 . _.....~. ---~""~- , u 9l.. (9.. JKac!l)o.wJL' R.O. MacDowell for the Board 22