HomeMy WebLinkAboutMessinger 18-03-221
IN THE MATTER OF AN ARBITRATION
BETWEEN:
ONTARIO PROVINCIAL SERVICE EMPLOYEES UNION, LOCAL 560 (the Union)
AND
SENECA COLLEGE (the College)
RE: GRIEVANCE OF GAL MESSINGER (the grievor)
RE: GRIEVANCE NO. 2017-0560-0004
Appearing for the Union: Brett Hughes and Mathieu Belanger, Dewart Gleason LLP
Appearing for the Employer: Dan Michaluk, Hicks Morley
Sole Arbitrator: Norm Jesin
Hearing Held: March 2, 2018
Decision Date: March 22, 2018
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AWARD
The grievance in this case claims that the grievor was improperly re-classified from partial
load status to part time (partial load professors fall within the bargaining unit whereas part -time
professors do not), and subsequently, improperly terminated contrary to the provisions of the
collective agreement governing the parties. It should be noted that under the collective
agreement partial load employees may be released on thirty days’ notice. There is some dispute
between the parties as to whether a professor may be released on this basis during the currency
of a course which the professor has been contracted to teach. In any event it is not clear that
even if the Union were to be fully successful that any remedy could be given beyond paying the
grievor damages from the date of termination until the end of the term during which he w as
terminated.
The College raises two preliminary objections to the arbitrability of the grievance. This
decision deals only with these preliminary objections.
The first objections is one of timeliness. Under Article 32.01 of the Collective Agreement
an employee is required to discuss any complaint with his/her immediate supervisor. The
supervisor must reply within seven days. Pursuant to Article 32.02 the employee may then file a
grievance but it must be filed within seven days. Article 32.04 A states that if the grievor fails to
act within the time limits “at any Complaint or Grievance Step, the grievance will be considered
abandoned”. It is the College’s position that the grievor did not file his grievance within seven
days of the receipt of his supervisor’s reply to his complaint and therefore must be considered
abandoned.
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The second objection is that the grievor was part time and therefore excluded from the
bargaining unit when he was terminated. Therefore he had no protection from termination under
the collective agreement and was only entitled to severance and termination pay under the
Employment Standards Act, which in fact was paid.
It is the Union’s position first that the grievor’s supervisor had never given a full reply to
the grievor’s complaint and that therefore the grievance was not untimely. The Union further
asserts that as the grievor should never have been reclassified from partial load to part time, the
termination grievance is arbitrable. Finally, and in any event, the Union asserts t hat these
objections to my jurisdiction had been waived as the nature of the preliminary objections had
not been brought to the Union’s attention until one month before the hearing in this matter and
well after the arbitration had been scheduled.
The facts giving rise to the grievance and which are relevant to the preliminary objections
are as follows:
Until January of 2017 the grievor had been employed by the College as a partial load
professor in the school of electronics and mechanical engineering for a number of years. It is
alleged that in the fall of 2016 the grievor was asked to develop a curriculum for a new course
and had been told that rather than being paid for time spent developing the course, he would be
assigned to teach the course in the winter of 2017 (January to April). The grievor was initially
presented with a contract to teach the course in the winter of 2017. However, as the College did
not have the enrollment he had hoped for, the College was forced to remove the grievor from
that assignment and had assigned the remaining section to a full time professor. The grievor then
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raised a complaint with his supervisor – Romel Cipriani. According to Mr. Cipriani, he met with
the grievor to discuss the matter on January 13, 2017. Although the grievor did not agree with
the change of assignment, Mr. Cipriani informed him that there was nothing he could do. The
loss of the assignment also meant that the grievor’s status was now being changed to part -time
as he did not have enough hours to maintain partial load status. The grievor asked if he would be
paid for time developing the course and Mr. Cipriani stated that he would not. The grievor also
asked if he could be reverted back to partial load and again, Mr. Cipriani stated that would not
be reverted.
On January 26, 2017, the grievor sent an email to Mr. Cipriani asking about for an update
on his request for development hours and regarding his contract. Mr. Cipriani replied the next
day indicating that he would be paid as partial load for a period of 30 days from the date that the
teaching assignment was removed – that is until February 1, 2017 – in accordance with the notice
provision in the collective agreement.
On January 29, 2017 the grievor wrote back thanking Mr. Cipriani for the update. He
stated that he had not received an answer regarding his request for development hours and
asked for an update. Mr. Cipriani did not respond to this email.
The grievor’s employment was terminated by letter dated February 24, 2017. The
grievance was filed on March 9, 2017. In its reply to the grievance the College asserted that the
grievor was not entitled to grieve as he was part time at the time his employment was
terminated. It also asserted the right to raise “any other relevant preliminary objection at
arbitration, although there was no express assertion that the grievance was untimely. The
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objection to timeliness was not particularized until one month prior to the hearing, in a discussion
between opposing counsel.
It is the position of the College that Mr. Cipriani replied to the grievor’s complaint about
reclassification in the meeting of January 13, 2017 and that the grievor was required to grieve his
reclassification within 7 days of that date. Alternatively, Mr. Cipriani made it clear in his email of
January 27, 2017 that the grievor would not be reverted to partial load and that he was being
released in accordance with the 30 day notice provision in the collective agreement. Certainly
the grievor would have been required to file his grievance regarding reclassification no later than
7 days from that date. As no grievance had been filed by that time the grievor was unable to
grieve his reclassification on March 9. As he could not grieve his reclassification he must be
considered as a part-time employee with no right to grieve his termination under the collective
agreement. The College fulfilled any obligation it had to the grievor by paying his termination and
severance pay in accordance with the Employment Standards Act.
The College further asserts that it did not waive the preliminary objections raised in this
case. In its initial reply it clearly raised the grievor’s part time status as an objections and further
and expressly reserved its right to rely on any other relevant preliminary objection. There can be
no waiver in the circumstances
The Union asserts that the emails referred to above establish that there was no firm reply
to the grievor’s complaint and that therefore the time for filing the grievance under Article 32
never commenced. The grievor clearly raised the matter of his request to be paid for
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development of the course in his email of January 29 and he was waiting for the reply that never
came. Therefore the complaint had not been fully dealt with the time limit never started to run.
Regarding waiver, it is the Union’s position that the College did not expressly raise a
timeliness objection until well after the arbitration hearing had been scheduled. According to
counsel, it is insufficient for the College to simply reserve the right to rely on “relevant preliminary
objections”. Rather it must expressly indicate that time limits are being relied on. The failure to
have raised such an objection expressly in a timely manner means that the College has waived
its right to raise that objection at the hearing. As a result the grievor is entitled to grieve his
reclassification and therefore, his termination.
Regarding the question of timeliness, I am in agreement with the College that the
grievance was filed beyond the seven day period mandated by the collective agreement. I accept
the evidence of Mr. Cipriani (which was not contested) that he told the grievor on January 13
that he was not going to reclassify the grievor back to partial load or that he was not going to pay
him for his development time. It may be that the grievor sought further clarification or update in
his email of January 26, but that does not change the fact that the initial reply was give n on
January 13. But even if I accept that the reply was not given on that date then surely, Mr.
Cipriani’s email of January 27 clearly stated that the grievor would not be reverted to partial load.
That is the issue that is the subject of the grievance at issue. Clearly then, the reply to that issue
was given no later than that date. The fact that Mr. Cipriani did not respond to the further request
for an update regarding payment for development does not alter the fact that the reply to the
issue before me had been given. The grievor did not grieve within seven days of January 27.
Therefore any grievance regarding his reclassification must be deemed to have been abandoned.
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I do not agree with the Union’s assertion that the College had waived its preliminar y
objection. In its reply to the grievance the College expressly made it clear that it considered the
grievor to be part-time and that as a result the grievor could not file a grievance under the
collective agreement. In addition the reply expressly reserved the right to rely on any other
relevant preliminary objection. In Canadian Labour Arbitration, Brown and Beatty, 2:3130, the
authors state that in order for the doctrine of waiver to be operative, “waiver will generally
require both knowledge and intention to forego the exercise of such a right.” In Marks & Spencer
Canada Inc., [1988] Carswell NS 730 (L. MacDougall), the Employer replied to a grievance
“without prejudice to our right to invoke any failure on your part to complete with the grievance
and arbitration procedure”. Although this did not amount to a specific objection to the delay in
proceeding with any particular step in the arbitration, the arbitrator described this a “notice of a
kind that [the Employer] was retaining any right it had. As a result, the arbitrator determined that
there was no waiver and the preliminary objection to timeliness could proceed.
It is not clear to me that the reservation made by the College in this case could allow the
College to make any objection at the last moment, no matter how obscure. In this case, given
that the College reserved the right to make any relevant preliminary objection and given that
timeliness is one of the most fundamental preliminary objections usually made, I cannot conclude
that the College gave up its right to make the objection that it has made, particularly as it was
raised one month before the hearing.
For all of the above reasons, I am compelled to find that the grievance relating to
reclassification must be deemed to have been abandoned as it was not filed in a timely manner
as required by the collective agreement. The grievance over termination must therefore fail as
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the grievor had reverted to part-time status and was excluded from the collective agreement at
the time his employment was terminated. Accordingly, the grievance must therefore be
dismissed.
Dated at Toronto this 22nd day of March, 2018.
______________________
Norm Jesin