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HomeMy WebLinkAboutDentone et al 15-04-16IN THE MATTER OF AN ARBITRATION BETWEEN WEST TORONTO COMMUNITY LEGAL SERVICES (the "Employer") and ONTARIO PUBLIC SERVICE EMPLOYEES' UNION, LOCAL 525 (the "Union") 0 GRIEVANCES OF RICARDO DENTONE AND CONSUELO DUENAS GARCIA ti (OPSEU#2013-0525-0001, 2013-0525-0002, and 2012-0525-0005) N SOLE ARBITRATOR: John Stout APPEARANCES: For the Employer: Thomas Agnew, Hicks Morley ( Counsel on March 2 and April 10, 2015) Lisa Amin, Barrister (Counsel on January 21, 2014) Elisabeth Bruckmann, Executive Director For the Union: .John Brewin, Ryder Wright Blair and Holmes LLP Ricardo Denton Consuelo Duenas Garcia HEARINGS HELD IN TORONTO, ONTARIO ON JANUARY 21, 2014, MARCH 2 AND APRIL 10, 2015 2 AWARD INTRODUCTION [1] This matter concerns three grievances filed by the Union (the "grievances"). Two of the grievances were filed on behalf of Ricardo Dentone ("Dentone"). One of the grievances was fled on behalf of Consuelo Duenas Garcial ("Garcia") (hereinafter together referred to as "the Grievors"). [2] The grievances arise from two specific events: ❑ The notice of layoff given to Mr. Dentone and Ms. Garcia on February 8, 2013 U The discontinuation of Mr. Dentone's benefits April 30, 2013 [3] The Union alleges that the Employer violated the Collective Agreement when they provided the Grievors with notice of layoff and ultimately laid them off. The Union also alleges that the Employer violated the Collective Agreement when they discontinued Mr. Dentone's benefits, effective April 30, 2013. In addition to violating the Collective Agreement, the Union also alleges that the Employer acted in bad faith and was motivated by "anti -union animus". The Union seeks a declaration that the Employer violated the Collective Agreement and requests that I remain seized to address the issue of damages. [4] The Employer denies violating the Collective Agreement. The Employer maintains that they acted in good faith. The Employer asserts that the layoff occurred because funding for the Spanish Interpreter Program was discontinued by their main funder Legal Aid Ontario (LAO). The Employer also asserts that the benefits of Mr. Dentone were discontinued in accordance with the Collective I Garcia was previously known - by her maiden name "Duenas" during her employment with the Employer. 3 Agreement. In the circumstances, the Employer requests that the grievances be dismissed. PROCESS [51 The hearing of this matter began on January 21, 2014. On that date the parties engaged in mediation in an attempt to resolve the grievances. Unfortunately, the parties were unable to resolve their differences and additional hearing dates had to be scheduled. [6] After the first day of hearing, the Employer retained new counsel. A conference call was held on February 25, 2015 during which an adjournment was sought by the new counsel. The adjournment request was denied. [7] After the adjournment was denied, the, parties agreed that the hearing would proceed in an expedited manner. [8] The hearing continued on March 2, 2015, at which time the Union filed statements from the Grievors and the parties agreed to admit a number of documents on consent. The Union supplemented the Grievor's statements with oral evidence provided by both Grievors, The Employer called Elisabeth Bruckmann, the current Executive Director ("Bruckmann") as their only witness. FACTUAL FINDINGS 1911 will not set out all the evidence that was submitted in this matter. Rather I will only set out what I find to be the relevant facts. I note that most of the relevant evidence is not in dispute. However, where there was a conflict in the evidence, I will explain why I prefer the evidence of one witness over the other. 4 Background [10] The Employer operates a community legal aid clinic (the "clinic"). The Employer also provides housing services. The Employer is governed by a board of directors (BOD). An Executive Director directs the clinic's day to day operations. The Employer`s main source of funding is LAO. In fact, LAO (on behalf of its affiliated clinics, including the Employer) is the Employer's Group Benefit Plan sponsor.z The Employer also receives significant funding from the City of Toronto, [I I] The Employer has faced some significant problems since at least 2010. At one point the clinic was placed in "dispute resolution" oversight by LAO. LAO hired external parties to audit the clinic's financial records. In addition, employee wages were frozen while the clinic was in dispute resolution. In September 2012 the LAO advised the Employer that they would not approve the clinic's fending application. At that point, there was a great deal of concern that the clinic would be forced to cease operations. g [12] In February 2011, the clinic moved from St. Clair and Yonge to its' z 0 current location at 2333 Dundas St. West, Toronto, Ontario. [13] In March 2011 the Union filed an application for certification. The evidence indicates that the Employer preferred not to have a trade union. The Vice Chair of the BOD wrote employees on March 15, 2011 voicing the Employer's opposition to unionization..3 Despite the Employer's disapproval, the 0 employees voted in favour of the Union. As a result the Union was certified as M bargaining agent for all employees; save and except the Staff Lawyers, the Office CD Manager, and persons above the rank of Executive Director. A first Collective 2 See exhibit 5 3 See exhibit S 5 - Agreement was agreed upon in 2013 for the period Apd] 7, 2011 to April 30, 2013.4 [14] Ms. Bruckmann is a lawyer who began her career working for a union side labour law firm. Ms. Bruckmann worked for a number of years at Parkdale Community Legal Services. In 2010, Ms. Bruckmann began working at the clinic, employed as a staff lawyer. [15] In the summer of 2012, the former Executive Director was absent from the workplace. In August of 2012, Ms. Bruckmann and another staff lawyer (Barbara Warner) worked together to assist in keeping the clinic operating. In November 2012, Ms. Bruckmann and Ms. Warner were working together as Acting Executive Director. In January 2013, Ms. Bruckmann was officially appointed Acting Executive Director. In the Summer of 2014, Ms. Bruckmann was permanently appointed Executive Director. [16] Ms. Bruckmann confirmed that she was aware of the Union organizing drive beginning sometime in February 2011. According to Ms. Bruckmann, she tried to avoid being involved because the staff lawyers were excluded from collective bargaining. Ms. Bruckmann recalled attending a few meetings with the Union after certification. Ms. Bruckmann attended the meetings at the request of the previous Executive Director, Ms. Bruckmann described being an unenthusiastic participant who only took notes.5 Ms. Bruckmann said she felt extremely uncomfortable participating in the meetings, but felt obligated to do so because the former Executive Director insisted that she participate. [17] Ms. Bruckmann did not participate in the negotiations for the first Collective Agreement. 4 See exhibit 1, tab 2 S See Z o exhibit 9 s N rI' [1$] In 1994, Mr. Dentone obtained a Bachelor's degree in Anthropology from National University in Columbia. In 2002, Mr. Dentone was granted a Master's degree in Anthropology by the University of Toronto. Prior to working at the. Employer's clinic, Mr. Dentone worked as a Refugee Worker at the FCJ Refugee Centre (1 year) and as a Legal and Administrative Assistant for a lawyer (6 years).s - [191 Mr. Dentone began his employment with the Employer on September 30, 2008. Mr. Dentone was employed full-time, with his time split between working as a "Spanish Interpreter" and as an "Intake Worker". Mr. Dentone was an active Union supporter and organizer during the Union organizing drive. Mr. Dentone was elected as a steward in 2011. Mr. Dentone was later elected as Vice President of Local 525 and then became acting President. Mr. Dentone was also on the Union negotiating committee. [20] Ms. Garcia has a Bachelor of Arts degree in English/German. Ms. Garcia began her employment with the Employer in October 2008, Ms. Garcia was working three days a week as a "Spanish Interpreter". Ms. Garcia did not physically work at the clinic. Rather her work was undertaken at other locations. Two days a week Ms. Garcia performed her duties at the Centre of Spanish Speaking People, On the other day, Ms. Garcia performed her duties at Parkdale Legal Services. Ms. Garcia was a Union supporter who was also on the Union negotiating committee, [21] l note that there is no dispute that Mr. Dentone and Mr. Garcia were active Union supporters. However, there was a dispute about whether Ms. Bruckmann was aware of the extent of Ms. Garcia's Union involvement. In this regard, I prefer the evidence of Ms. Bruckmann to that of the Union's witnesses. That is not to say that I find that the Grievors were misleading. Rather, the evidence that they provided did not prove that Ms. Bruckmann had any 6 See Dentone's resume exhibit 1, tab S 7 knowledge of Ms. Garcia's involvement. The Grievors' evidence was more along the lines of Ms. Bruckmann ought to have known because Ms. Garcia was vocal and on the negotiating committee. However, Ms. Bruckmann was not at the negotiation table and I accept her evidence that she was unaware of Ms. Garcia's Union involvement. [22] According to Ms. Bruckmann, the relationship between the Union and the previous Executive Director was "terrible". Ms. Bruckmann described a situation where all employees, including herself as a staff lawyer, were unhappy with the work environment. Ms. Bruckmann described the previous Executive Director as Z 00 being "unpleasant', "nasty` and "abusive". Ms. Bruckmann also indicated that she was not surprised by the Union drive. In fact, in light of the unpleasant working environment, she thought unionization made sense. [23] Mr. Dentone confirmed that the previous Executive Director had made some anti -union comments during the organizing campaign. [24] Ms. Bruckmann indicated that the previous Executive Director installed a camera in the recepfion area, which made most staff unhappy. Later a hidden N camera (in a sprinkler) was also installed by the previous- Executive Director.7 Ms. Bruckmann advised that she personally did not see the need for any cameras in the workplace. [25] 1 note that the Union did not file a grievance relating to the installation of the cameras. In fact, the evidence clearly indicates that the Union never filed an unfair labour practice complaint (with the OLRB) nor did they file any grievances prior to the layoff that gave rise to these proceedings. [26] In early 2012 the clinic was in trouble. Most of the BOD quit. Jeff Za]ak, one -remaining BOD member, became actively involved in running the clinic. 7 Also see exhibit 1, tab 7 page 2 and 3 8 [27] Mr. Za]ak was told about the hidden camera and it was immediately removed. According to Ms. Bruckmann, in January 2013 she personally removed the other camera located in the reception area. [28] Mr. Dentone accused Ms. Bruckmann of removing some Union shirts that were in the workplace. Ms. Bruckmann recalled the incident, indicating -that the Office Manager brought to her attention that a shirt (with an OPSEU logo) was draped over a chair at a shared work station used by Mr. Dentone. According to Ms. Bruckmann, she.felt it was inappropriate for people to leave clothing on a chair at a shared workstation. Mr. Dentone was .not in the office to remove the shirt. Therefore, Ms. Bruckmann took it upon herself to move the shirt. Ms. Bruckmann said she took the shirt and neatly folded it, leaving it on the comer of the desk at the work station. [29] Ms. Bruckmann does not recall ever having any problems dealing with Mr. Dentone. In fact, Ms. Bruckmann recalled providing Mr. Denton with travel letters for his spouse to travel with his children.s The layoff [30] On November 28, 2012 LAO advised all their clinic partners, including the Employer, that the Spanish Interpreter Program would not be funded past March 31, 2013.9 [31] After receiving the notice from LAO, Ms. Bruckmann consulted with the z 0 BOD and it was determined that the Employer would need to layoff employees ti associated with the Spanish Interpreter Program. B N See exhibit CD 7 0 9 See 0 C14 exhibit 2, tab S 9 [32] On January 29, 2013, Ms. Bruckmann spoke with Union Representative Paul Attard (Attard) informing hire about the funding issue and the fact that three employees would be adversely affected. The three employees were affected because the Spanish Interpreter Program funded some or all of their work. The three individuals identified were as follows: ❑ Ms, Garcia (Duenas at the time) 0.6 FTE ❑ Mr. Dentone 0.4 FTE ❑ Elizabeth. (Liz) Valenti-Sorbara 0.2 FTE [33] Ms. Bruckmann indicated to Mr. Attard that it was her understanding that layoffs were to be done by seniority and Ms. Sorbara was the most senior employee. Therefore the Employer intended to layoff Ms. Garcia (all three days she worked) and Mr. Dentone (three of his five work days, he would continue to perform intake work for two days). (34] In terms of the decision to only layoff the Grievors, Ms. Bruckmann explained that Ms. Sorbara worked at the front desk three days a week and one day performing duties associated with the Spanish Interpreter Program. io Ms. Sorbara was hired in 2005, which was prior to Mr. Dentone and Ms. Garcia, According to Ms. Bruckmann, the decision to layoff the Grievors was based solely on seniority, which in her view was what the Collective Agreement mandated. [351 Ms. Bruckmann followed up on her conversation with Mr. Attard by sending an email on January 30, 2013, where she also asked for times to meet and discuss the issue.n [36] Ms. Bruckmann advised that Mr. Attard was unavailable to meet for a discussion until February 11 or 12, 2013. Ms. Bruckmann then realized that 10 It should be noted that Ms. Sorbara appears to have signed the collective agreement as Union negotiating committee member. is See exhibit Z, tab 6 �0 - February 8, 2013 would be the last day she could give notice of the layoff to the Grievors, which was to be effective March 31, 2013. [37] On February 6, 2013 Ms. Garcia sent an email to Ms. Bruckmann inquiring about a pay equity claim and requesting a letter confirming her work experience so she could obtain a "stamp from the Association of Translators and Interpreters of Ontario (ATIO). Ms. Bruckmann provided the letter to Ms. Garcia by email on February 7, 2013.12 [38] Ms. Garcia was not working on February 7 or 8, 2013, so Ms. Bruckmann attempted to call Ms. Garcia on February 7, 2013. Unfortunately, Ms. Bruckmann was unable to speak with Ms. Garcia. As a result of being unable to contact Ms. Garcia, Ms. Bruckmann advised Ms. Garcia of the layoff by email on February 8, 2013. Ms. Bruckmann indicated how "exceedingly son -V` she was to give the bad news and "particularly sorry to do so via email". [39] Also on February 8, 2013, Ms. Bruckmann summoned Mr. Dentone to her office. During this meeting, Ms. Bruckmann gave Mr. Denton his notice of layoff. -13 Mr. Dentone insists that he requested the presence of a Union representative during this meeting. Ms. Bruckmann does not recall any request for union representation. Ms. Bruckmann went on to indicate that had union representation been requested by Mr. Dentone then she would have happily granted the request. [40] 1 am of the view that it is not necessary for me to resolve this conflict in the evidence. Even if I were to accept the evidence of Mr. Dentone as being more accurate, in my view the failure to provide union representation would not N Al violate the Collective Agreement. My reasons for making this determination will be elaborated upon later in this award. 1Z `See exbibit 2, tab z 13 0 13 See exhibit v 2, tab J 8 0 uz 11 [41] On February 14, 2013, both Ms. Garcia and Mr. Dentone filed grievances civ alleging an improper layoff 14. -[42] A meeting was held on February 25 or 26, 2013 to discuss the layoffs. In attendance were Mr. Attard, Mr. Denton and Ms. Bruckmann. Mr. Dentone and Mr. Attard suggested alternatives to avoid the layoff. [43] One of the suggestions was to use other funding sources to fund the Spanish Interpreters. Ms. Bruckmann indicated that she was sceptical about being able to avoid the layoffs by accessing other funding sources. Ms. Bruckmann pointed out that much of the clinic's funding is related to specific programs and any surplus in the funding would need to be returned to the funder. Ms. Bruckmann acknowledged that the previous Executive Director would shift funding between programs. However, Ms. Bruckmann indicated that the previous shifting of funds was a concern to LAO and the City of Toronto, who, now mandated that the clinic fully account for how their funding was spent. [44] Mr. Dentone and Mr. Attard also noted that the Housing Help Worker position was recently vacated and suggested to Ms. Bruckmann that this work be given to the Grievors. Ms. Bruckmann dismissed this suggestion indicating that the Housing Help Worker position was a skilled position that required someone with a background in social work or advanced education in social work. [45] According to Ms. Bruckmann, Mr. Attard and Mr. Dentone also suggested just funding the Spanish Interpreter Program until the clinic closed. Ms. Bruckmann noted that at this point in time there was concern that the clinic might lose its LAO funding and close. However, Ms. Bruckmann was optimistic that things could be turned around and the clinic would survive. 14 See exhibit 1, Tabl 12 [46] Despite her scepticism, Ms. Bruckmann indicated that she would discuss the Union's suggestions with the BOD. [47] On March 5, 2013, Ms. Bruckmann wrote to Mr. Attard advising that the Employer was unable to utilize funds from other projects to avoid the layoffs. Ms. Bruckmann also advised that the Employer maintained their position that the Grievors were not qualified for the Housing Help Worker position. Therefore, the Grievors would be laid off. Ms. Bruckmann also sent notices to the Grievors confirming the layoff and indicating that the alternatives proposed by the Union were not feasible.is _ [48] On March 13, 2013, Ms. Bruckmann wrote to Mr. Dentone (with a copy to Mr. Attard) confirming Mr. Dentone's request to displace a junior employee- z 0 working in the Housing Help Worker position. Ms. Bruckmann responded to the request as follows: N The job requires, at a minimum, the skills which are gained through N one of two educational programs — a Certificate in Community Services (or related certificate) or a Bachelor of Social Work.... I am familiar with your previous work experience and the responsibilities of your current position. I find that you do not have the necessary experience or skills to make up for your lack of educational credentials. We do not have the capacity to provide you with training in the areas set out above and even if we did, the extent of the training required is so extensive that it would be completely unfeasible. If you would like to discuss this further, please do not hesitate to contact me.16 [49] The evidence is clear that neither Mr. Dentone nor the Union contacted Ms. Bruckmann to discuss this issue any further. is See exhibit 2, tab 9 16 See exhibit tab 5 13 [50] According to Mr. Dentone, he felt he was qualified to perform the Housing Help Worker position. Mr. Dentone noted his educational background -and his experience working with underprivileged people. Mr. Dentone believed that he should have at least been given an interview for the position. [51) On April 3, 2013, Ms. Garcia wrote an email to Ms. Bruckmann indicating that she would like the February 7, 2013 letter confirming her employment revised to provide additional information required by the ATIO. Ms. Bruckmann revised the letter and sent it to Ms. Garcia by email. 1 note that Bruckmann . indicated the following in the letter: 'We were very sorry to lose Ms. Duenas' (now Garcia) services when the Spanish Interpretation Program was defunded by Legal Aid Ontario."17 Mr. Dentone's benefits are discontinued [52] On April 25, 2013 Bruckmann wrote to Denton (with a copy to Attard) advising that Manulife, the Employer's benefits carrier, would not continue Mr. Dentone's benefits beyond the end of April 2013. [53] On May 7, 2013 Mr. Dentone fled a grievance alleging that the- Employer "arbitrarily and unfairly terminated" his benefits.18 g [54] After the grievance was filed, Ms. Bruckmann made additional inquiries o with both Manulife and the plan sponsor, LAO. According to the Manulife Group Benefit Plan, employees are eligible for coverage (among other terms) if they work 20 hours per week or more.is An -exception can be made by the plan N sponsor (LAO). After the layoff, Mr. Dentone was working less than 20 hours per 17 See c� r, exhibit N 2, tab. 13 18 See exhibit 1, tab 1 19 See exhibit 5, page 20 14 week and LAO would not agree to make an exception in the case of Mr. Dentone.20 Mr. Dentone obtains employment with OPSEU [55] After Mr. Denton was laid off, he continued to work for the Employer two days a week as an Intake Worker. [56] Mr.-Dentone was also able to obtain employment with the Union. From April 15, 2013 until May 26, 2013, Mr. Dentone worked three days a week for OPSEU. [57] On May 27, 2013, Mr. Dentone requested and was granted a leave of absence to work for OPSEU. From May 27, 2013 until April 2014, Mr. Dentone worked full-time for OPSEU. From April 28, 2014 until September 2, 2014 Mr. Dentone worked seven days bi-weekly for OPSEU. Ms. Garcia is advised of available work [58] On May 8, 2013 Ms. Bruckmann wrote to Ms. Garcia advising that the intake work formerly performed by Mr. Dentone was available for her. The letter was sent by email and Registered mail2l. Ms. Bruckmann indicated that she sent the email to Ms. Garcia's personal "email account', which is the same email she used in all earlier correspondence. According to Ms. Bruckmann the email did not "bounce back". However, weeks later the registered letter was returned to the clinic unopened and with a check mark indicating unclaimed.22 Ms. Bruckmann assumed that Ms. Garcia was not interested in the available work. 20 See exhibit 2, tab 14 21 The email address for Ms. Garcia was the very same email address utilized by Ms. Garcia for obtaining the letter confirming employment 22 See exhibit 2, tab 10 and 11 is [59] Ms. Garcia claims that she did not receive the May 8, 2013 letter or a notice to pick up the letter. Ms. Garcia also conceded that sometimes she did not receive other mail at her home. [60] On May 24, 2013 the Employer hired a law student to perform the intake work that was formerly performed by Mr. Dentone.23According to Ms. Bruckmann, the students were utilized to fill in on a temporary basis while Ms. Dentone was on a leave of absence to work for OPSEU. Ms. Bruckmann noted that Mr. Dentone's leave was extended a number of times for approximately four month intervals. Students were ideally situated to perform the available work for such short periods of time. Mr, Dentone resigns his employment [61] As of September 2, 2014, Mr. Dentone secured full-time employment with OPSEU. Mr, Dentone resigned his employment with the Employer on October 17, 2014.24 [62] Mr. Dentone acknowledged that he could have worked for the Employer for the period between April 28, 2014 and September 2, 2014, but he decided not to return to the workplace because he felt stressed and believed he would be z unwelcome. 00 DECISIONNr [63] The Union alleges the following violations of the Collective: ❑ The Employer failed to give the Union prior notice and hold a J meeting with the Union before issuing the layoff notices. As a 23 En See � exhibit tab 6 24 See exhibit 2, tab - 14. 16 result, the Union asserts that the layoff notices given to the Grievors are invalid. ❑ The Employer failed to properly consider the Unions' suggestions during the meeting in February 2013. ❑ The Employer violated the Collective Agreement by not providing Mr. Dentone with union representation when he was given his notice of lay off. ❑ The Employer violated the Collective Agreement by not permitting Mr. Dentone to displace the junior employee in the Housing Help Worker position. ❑ The Employer violated the .Collective Agreement by failing to properly recall Ms. Garcia. ❑ The Employer violated the Collective Agreement by discontinuing Mr. Dentone's benefits. ❑ The Employer acted in bad faith and their conduct was tainted by "anti -union animus". [64] The relevant provisions of the Collective Agreement are as follows: 16.02 (a) In the event of a layoff of a permanent or long-term nature, the Employer Wil provide affected employees with notice in accordance with the Employment Standards Act, but in no event less than 14 calendar days. (c) The Employer agrees to provide fourteen (14) days` notice to the Union to meet with the Union during this time period, if requested, to discuss means of avoiding the layoff. (d) Such meeting will review the following: ® the reason causing the layoff, ® the services the Employer will undertake after the layoff; ® alternatives to layoff; o ® the method of implementation; and, ® the ways the Employer can assist employees to find alternative employment. 17 C 16.03 A copy of any notice of layoff to an employee will be provided to the U Union at the same time. LO 0 16.04 Employees with the least seniority within the position in which the layoff takes place shall be laid off first, providing that the employees who remain on the job have the ability and qualifications to perform the job. 16.05 An employee given notice of a permanent layoff shall be entitled to accept the layoff and retain recall rights or displace an employee of the same status (eg. PTIPT) with less seniority provided that the senior employee is able to perform the normal requirements of the job. 16.06 Benefits Continuation (a) In the event of a layoff of an employee, the Employer shall pay its share of the insured benefits premiums up to the end of the month following the month in which the layoff occurs, or the statutory notice period, whichever is the later. (b) If approved by Legal Aid Ontario and the benefits carrier, the employee may continue to. pay the full premium cost of a benefit or benefits for up to a further twelve (12) months. Such payment can be made through the Payroll Office of the Employer provided that the employee informs the Employer of her intent to do so t the time of the layoff, and arranges with the Employer the appropriate payment schedule. Where the employee does not continue payment, the insured benefit coverage will cease. 16.11 (c) Employees eligible for recall will be notified of any vacancy for which they possess the necessary qualifications, skills and ability to perform the required work. Notice will be by registered mail, telephone, electronic transmission, or delivery to the last address left with -the Employer. Any notification by telephone or electronic transmission will be followed up with confirmation by registered mail. If the laid off employee want to return, the employee must notify the Employer within seven (7) days of the date notification was received, or fourteen (14) days from the date the notice was sent, whichever occurs first. The employee will be given at least an additional seventy-two (72) hours to report to work. 23.01 Benefit Plan: There shall be no change to the current benefit levels. The benefit plan shall contain major medical, life, dental, AD&D and LTD components. 18 The layoff allegations [65] Article 16.02 requires that the Employer provide affected employees with _ notice of layoff in accordance with the Employment Standards Act, and in any event not less than 14 calendar days. The evidence is clear that the Employer z 0 complied with this obligation and gave the Grievors adequate notice of the layoff, which was more than 14 calendar days and in accordance with the Employment N Standards Act. [66] Article 16.02 (c) does require notice and a meeting with the Union, if requested, prior to a layoff. However, article 16.02 (c) does not mandate that theca Employer must provide the Union with notice and .a meeting prior to issuing a notice of layoff to any employee. The language only requires the Employer to N give the Union 14 days notice to meet and discuss means of avoiding the layoff. T the parties wished to make prior notice and a meeting as a pre -condition to providing notice of layoff to employees, then they would have stated such a precondition in clear language. [67] The fact is that the Employer provided the Union with advance notice of the layoff. At the same time, the Employer provided the Union with their reasons for the layoff and how it would be implemented. The Employer offered to meet with the Union, however Mr. Attard was unable to meet until after the date upon which the Employer needed to provide the Gdevors with their notices of layoff. I find that the Employer did not violate the Collective Agreement by failing to meet with the Union prior to issuing notices of layoff to the Grievors. [68] Article 16.02 (d) sets out the topics of discussion at the meeting mandated in article 16.02 (c). Articles 16.02 (c) and (d) do not require the Employer to do anything other than have a discussion, which would include considering alternatives to the layoff. The evidence is clear that the discussion occurred and alternatives were discussed. The Union was given an opportunity to provide suggestions on alternatives. Unfortunately, there were no viable 19 alternatives. It was not improper for Ms. Bruckmann to voice her scepticism. She was not required to provide any unjustified hope that the layoffs might not occur, when she knew that the alternatives were not feasible. [69] Despite her scepticism, Ms. Bruckmann did approach the BOD with the alternatives and they also concluded that the alternatives were not feasible. In my view, the Employer made a genuine effort to keep the Union appraised of the situation and sought their input. The Employer's decision not to accept any of the Union's suggestions did not violate the Collective Agreement. [70] There is no requirement under this Collective Agreement to have a Union representative present when an employee is given a layoff notice. Instead, Union consultation is found in article 16.02 (c) and (d). As indicated above, the Union was properly consulted during the process. ft might well have been of assistance to have a union representative present when the notice of layoff was given. The Union is the exclusive bargaining agent for employees and their assistance might have provided Mr. Dentone with some comfort during a very stressful situation. However, providing union representation at the time of giving a notice of layoff is not a requirement under the Collective Agreement. More importantly, the failure to provide union representation when giving a notice of layoff does not invalidate the notice of layoff. [71] It should be noted that in article 12.03 the parties specifically turned their minds to when an employee has a right to union representation. The'lack of a similar provision in article 16 makes it clear that the presence of a union o representative is not mandatory and the failure to provide such representation N does not invalidate the notice of layoff. As indicated earlier, the presence of a N union representative may well have been helpful, but it was not mandatory. In N light of my finding with respect to the requirements of the Collective Agreement, it is unnecessary for me to resolve the conflict in evidence between Ms. C) Bruckmann and Mr. Dentone because either way, the Employer did not violate o the Collective Agreement. 20 [721 In terms of the Housing Help Worker position, I find that Ms. Bruckmann considered both Mr. Dentone and Ms. Garcia for the Housing Help Worker position. Ms. Bruckmann felt that neither was qualified to perform the normal requirements of the position. The Union did not pursue this issue any further until the hearing. Based on the evidence, neither Mr. Dentone nor Ms. Garcia has the educational background or experience necessary to perform the normal requirements of the Housing Help Worker position. 1 find that Ms. Bruckmann was correct in her conclusion that the Grievors were not able to perform the normal requirements of the Housing Help Worker position as required by article 16.05. [731 In terms of the recall of Ms. Garcia to the work made available by Mr. Dentone working with OPSEU, 1 find that the Employer complied with their obligations to provide her with notice by electronic transmission followed up by registered mail. It is unfortunate that Ms. Garcia never received the notice, However, the Employer can't be faulted for sending the notice to the email address that they had been using to correspond with Ms. Garcia. There is also no dispute that the Employer sent the letter by registered mail to the last known address. The Employer just can't be faulted for the registered letter never being picked up. In the circumstances, I find the Employer complied with their obligation under the Collective Agreement. The benefits being discontinued [74] In terms of the decision to discontinue Mr. Dentone's benefits. I acknowledge that the language in article 23.01. is less than clear with respect to eligibility. However, the Wage and Benefit Schedule does mention each employees weekly hours and also refers to benefit eligibility. [75] What is determinative in this case are the provisions found at article 16.06, which addresses the effect of a layoff on benefits. Article 16.06 (a) provides that benefits are to be continued up to the end of the month following 21 the month in which the layoff occurs, or the statutory notice period, whichever is later. Under article 16.06 (b), LAO and the benefits carrier may approve continuatiori for an additional twelve months. [76] In this case the evidence is clear that Mr. Dentone was provided benefits until the end of April, which was the end of the month after he was laid off. The evidence is also clear that Ms. Bruckmann contacted the benefits carrier and LAO to inquire about extending Mr. Dentone's benefits. Unfortunately, LAO would not agree to extend his benefit coverage. Accordingly, the discontinuation of benefits did not violate the Collective Agreement. The bad faith allegation 0 [77] 1 accept that the layoff of two members of the Union's negotiating committee, might raise suspicion that the Employer acted in bad faith and with- N anti -union animus. I also agree that one must carefully scrutinize the facts to N determine if the Employer was motivated in any way by anti -union animus. [78] However, the onus is still on the Union to prove more than mere 0 suspicion. The Union is required to prove that the Employer acted in bad faith "' and was at least in some way motivated by anti -union animus. N [79] In this case, the evidence is clear that the prime motivator for the layoff was the decision by LAO not to continue funding the Spanish Interpreter Program. This decision affected not only the Employer, but all other LAO clinics. It was extremely unfortunate that the Grievors were the junior employees who were affected by this decision. 22 [80] 1 accept that there is some evidence that the Employer, under the previous Executive Director, did not want to have a Union in the clinic.25 However, there is no requirement that an Employer must like having a union in their workplace. To prove bad faith, one needs to prove more than dissatisfaction with having a union. Instead, the Union must prove that the adverse treatment affecting the unionized employees was at least in part motivated by improper motives (i.e. anti -union animus). [81] In this case, there is no evidence that the Employer was motivated by any improper motive. Ms. Bruckmann is a lawyer who worked at a union side law firm. Ms. Bruckmann faced a difficult situation caused by the decision of an external third party. In my view, it would be inappropriate to infer any adverse inference based on the conduct of a previous Executive Director or members of the BOD who had long since resigned. The Employer had a legitimate business reason to explain the layoffs. There is no evidence to support a finding that the Employee's actions were motivated in any way by anti -union animus. [82] 1 accept that the Grievors feel that they have been singled out and mistreated. There is no dispute that they were the only employees affected by the layoff. However, the Grievors were not singled out because of their union involvement. Rather, the Grievors are victims of their own circumstances. They unfortunately were performing work related to the Spanish Interpreter Program that LAO stopped funding. They were also the junior employees performing such work. Accordingly, the adverse treatment suffered by the Grievors was only related to a legitimate business decision and their ranking in seniority. In my view, the conduct of the previous executive Director is not relevant to the matter before me as she had nothing to do with the decisions made in this matter. Moreover, it would be extremely unfair to pass judgement on the conduct of the previous executive Directorwithout providing her with an opportunity to respond to the accusations. CONCLUSION [83] After carefully considering the evidence and submissions of the parties, I find that the Employer acted in good faith and their conduct did not violate the z Collective Agreement. Accordingly, the grievances are dismissed. a Dated at Toronto, Ontario this 16th day of April, 2415. John Stout -Arbitrator CV