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HomeMy WebLinkAboutSt. Lawrence College's Book of Authorities (Probationary Status) IN THE MATTER OF the Colleges Collective Bargaining Act, R.S.O. 1990, c. (,15; AND IN THE MATTER OFa grievance filed by Keith Guitard, dated June 6, 2007 BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES' UNION ("the Un ion") - and - ST. LAWRENCE COLLEGE OF APPLIED ARTS AND TECHNOLOGY. ("the College") COLLEGE'S BOOK OF AUTHORITIES (PROBATIONARY STATUS) Tab Case Name 1. The Civil Service Association of Ontario (Inc.) v. The Ontario Council of Regents for Colleges of Applied Arts and Technology (18 June 1975, ant. Div. (t.) 2. Ontario Council of Regents Colleges of Applied Arts and Technology and Civil Service Association of Ontario Inc.) Re (1976),13 LAC. (2d) (Weatherill) . 3. The Civil Service Association of Ontario (lnc.)v. The Ontario Council of Regents for Colleges of Applied Arts and Technology, No. 414/76 (7 March 1977, ant. Div. (t.) 4. The Ontario Council of Regents for Colleges of Applied Arts and Technology (St. Clair College) and The Ontario Public Service Employees Union (Minto), Re (20 February 1979,Brandt) 5. The Ontario Council of Regents for Colleges of Applied Arts and Technology (Fanshawe College) and Ontario Public Service Employees Union (Safran), Re (21 February 1981, Rayner) 6. Durham College of Applied Arts ~nd Technology and Ontario Public Service Employees' Union (Mcintyre), Re (6 December 1982, Weatherill) - 2 - Tab Case Name 7. Sheridan College of Applied Arts and Technology and Ontario Public Service Employees Union (Brackenridge), Re (8 May 1985, Brunner) 8. Seneca College and Ontario Public Service Employees Union (Roy), Re (10 February 1988, Samuels) 9. Loyalist College of Applied Arts and Technology and Ontario Public Service Employees Union (Chapman), Re (6 September 1988, H. Brown) 10. Fanshawe College and Ontario Public Service Employees' Union (Robson), Re (9 September 1988, P. Picher) 11. St. Lawrence College and Ontario Public Service Employees' Union (Abel), Re (19 January 1989, Swan) 12. St. Clair College and Ontario Public Employees' Union (Chesterton), Re (17 June 1996, Swan) 13. Algonquin College and OPSEU (Mullins), Re (28 June 1998) 14. Rizzo & Rizzo Shoes Ltd. (Re) [1988] 1 s.C.R. 27 '"" :::-1 ;.. j f'""""ll F-'1 '"~ , .oJ F:? ~1 L ~ - , u J.I L .J cT) ~;' :. "'&:3) ;f~ G?c.,LO IN THE SUPREME COURT OF ONTARIO DIVISIONAL COURT ZUBER, MORDEN and REID, JJ. AND IN.THE MATTER of The Judicial Review Procedure Act, Statutes of Ontario, 1971 20 Elizabeth II, Chapter 48 BET WEE N: THE CIVIL SERVICE ASSOCIATION OF ONTARIO (INC.) Applicant - an d - THE ONTARIO COUNCIL OF REGENTS FOR COLLEGES OF APPLIED ARTS AND TECHNOLOGY Respondent - and - E.A. BLACK, T.H. TRIMBLE, and D. HOMUTH Arbitrators ZUBER, .J. (Orally) . .:-- ..' h__ ~_ -..:r-' ." ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) } ) . Heard: C. G.Paliare for the Applicant C. G. Ri~gs for the espondent June 6th, 1975 . -.--. "-""':'~'::"'.:.' ,,~,~~.~~:t~~~;:~t';.:;...::-_. ~.~:~-~::,~..~:'-:- of Orifarfo~(Inc:)-:"fo~r'-:fudicial review of an award by the Public Service Grievance Board pursuant to a memorandum of understanding between The Ontario Council of Regents for Colleges ,of Applied Arts and Technology and the applicant. The facts, in general terms, upon which this application is based are as follows. Mr. Aitchison on August 14, 1972 - 2 - was taken on the staff of Fanshawe College at London as a Master on a probationary basis. On May 24, 1974, Mr. Aitchison was informed by Fanshawe College that he was to be released. . He was told in the letter from Fanshawe that his active duties at the College would cease on June 28th ~ -" but that he would be paid until August 31st of that year. Payment was based on the fact that Mr. Aitchison had earned and was entitled to his vacation period which extended until that time. This is to be distinguished from severance pay or just a plain money allowance at this time. In the memorandum of understanding between the Council of Regents and the Civil Service Association, there are two terms that are relevant. The first is 8.01 which reads as follows: "8.01 An employee will be on probation until he has completed the probationary period which shall be of two years duration, it being understood that a further period of probation of up to one year may be established by mutual agreement. During the probationary period, the employee will .'.': be 'informed ,of ;his.;;progress. at.'. approximately -., - six' month'" interval's. .:- Also; , it; is understood .:;~:~thaffan~eiiip'loyee~may_ be. released during . . the"first five months following the commencement date of his employment upon at least one (1) month's written notice and during the remainder of his probationary period upon at least three (3) months written notice." ...' ~~ ~ ! r l r l ......,.. - 3 - And 8.02 reads: "8.02 It being understood that the release of an employee during the probationary period shall not be the subject of a grievance under the Grievance Procedure, an employee who has completed his probationary period and is discharged for cause may lodge a grievance in the manner and to the extent provided in the Grievance Procedure." On September 9, 1974 Mr. Aitchison launched a grievance which proceeded to the arbitration board. At the commencement. of the arbitration process, the Board of Regents took issue with the jurisdiction of the Board taking the position that Mr. Aitchison was a probationary employee and pursuant to section 8.02 the grievance was non-arbitrable. In our view, the issue as to whether or not Mr. Aitchison was, in fact, a probationary employee was a preliminary issue . . .'"' "........,,:, ':: .. .. n\- ,'" ': :. ~.-. . 'r- . . ~':>o. _ . and was critical to the jurisdiction of the Board to deal with the matter. In view of the fact that it was a jurisdictional .'..;~~~~~;:,~~_~~ry~i~::t~~~~;~~~i~~l:~is~~~~~:~n .t.o. deter~:~~ .- n._. ..,.. ~'" whethe~~or."'.o - e~B~~t?:':~}f~~;ri.g~.t5.or;~n~t,:-_in its' conclusi~n. . . .~"':. '..~~=-.;:tE;..:::.:::--- ~.uf~~'1'i~,~~,;,~~,::-::~,-:,:":~:-'-"'~:':J:.~.-<,_~.~-...:~.;~: -, ,-' . _ _. " . . . that Mr. Aitchison was a probationary employee and not simply to determine whether or not they placed upon the term an interpretation which it might reasonably bear. Tur~ing to the issue then of whether or not Mr. Aitchison was a probationary employee, the sequence of dates makes it obvious that he was notified of his release within the two E-~ ""l 1,- ".'~ ,---~ - 4 - .....- year probationary period and it is further obvious that the termination date of August 31st fell outside the two year period. The somewhat narrow and crucial point therefore to be determined in this matter is simply the meaning of the term "release" as it is used in sections 8.01 and 8.02 of the agreement. The position of the Council of Regents is that simple notification that one will be released or that one's services will come to an end at a future time is sufficient to constitute release. The position of the Civil Service Association the issue in this case is correspondingly determined. In our view, the term "release" must mean the total cessation of the"-'relationship. of employer. and - empl-oye-e and this cessation of the relationship in this case must occur before the expiration of the two year period. The ....mer.~c?;~_~__~i:~~~t~~l?~~~~,:. - fut'u.re :~'dt~C"not~Jf,ci tsel f,7ter~e '~ihe'~ietafionship.. . . ,. In adopting this view, we recognize the fact that this interpretation of the term "release" will have the effect of shortening the probationary period to 21 months as it will then be incumbent upon an employer in circumstances like this to give the three months' notice at a time sufficiently "'''~ ".,1\'fI - 5 - ...... distant from the expiration of the probationary period to allow the three months to run within the two. year period. I should add as well that, in our view, this interpretation of the agreement is not only the proper one, but also the only interpretation that the language of this agreement could reasonably bear. This application will, therefore, be allowed. The order of the Board will be quashed and the matter remitted to it for further consideration. Costs will be to the applicants to be taxed. C-. . .- ."-7- '~:~'r:'!""-"""_'~"_ ._I.o--'~'''._',''''" ___.", ....";~,~~]!l;~~f;;~~l:~i#%: ILLs Released: June 18th, 1975 , J r~ ~~: :<:,\, 1',. ",' :',' ;::>,' j ,,),:" ,: .i: ," :(;,," :~,.; .'" ,':,::;~,~ ' _,,- ,", ..,.~....~IIJ,\.,.l.I. '., ..,.;...,." '..,.. .' j ',....,(.."..;.,1,.....,. '.'~ .':~"':.'." .l.~.',~"', '.". "'.::;.;..' ,:.) , , CA.' Lf::ro ' IN THE MATTER OF AN ARBITRATION BETWEEN: THE ONTARIO COUNCIL OF REGENTS OF COLLEGES OF APPLIED ARTS AND TECHNOLOGY AND THE CIVIL SERVICE ASSOCIATION OF ONTARIO (INC. ) AND IN THE MATTER OF THE GRIEVANCE OF R. GROT SKY BOARD OF ARBITRATION: J.F.W. Weatherill, Chairman J.K.A. Hayes, Union Nominee ~. Wright, Employer Nominee A hearing was held in this matter at Toronto on June 25, 1976. G.A. Richards, for the union E.T. McDermott, for the employer AWARD In this grievance, dated April 22, 19?6, the grievor protc~ts her dismissal from the teaching staff of ~ " " " , ,. " " .,== ''':, . ',. ., \ ,.:", ,<. :, , .... " . '. ,. .' " ':,.\....;,',.,.....,',..~.:.~",.:,:'..:,. ~.'." ,,' ';;.' :..;,I,.,..,:;..,~'..~,' ,:.':.'. '.. ,',.".... '.',~.;,."..:,.~.. ".....,'.'..:.', I',', :'.., .,', .~: ',.~I."." "..'l;. . ~l."." .,.',....,:'.. " -,~t..~~.'.~;~j~,:~.;:':.~,~ ~.~:.::., j ..,..:~'.:;.. .:;,':.~..,:..:::<~::,:~:', :': :; r'..: ~::, :::: .':,:. :..'< :.,....:'. . , r . - ' , . - 2 - ~ Seneca College. The college has raised, in timely fashion, the preliminary objection that the grievance is .... .... not arbitrable, the ground of objection being that the grievor was dismissed during her probationary period.. .... This award deals only with the preliminary objection. The grievor served as a "sessional" employee ... (and as such was not a member of the bargaining unit) from April 29, 1974 until April 29, 1975, when she was hired as a full-time employee. She became, pursuant to article .... 8.01 (a) of the collective agreement, a probationary employee. The period of probation there provided for is of two years' duration. The grievor was, it seeIns, given credit for her service as a sessional employee, so that her probationary )- period was considered as expiring on.Apri1 29, 1976. On April 14 I., 1976 r' the grievor was notified thather~ services with: the College were terminated as of '- ~ that date. The evidence of the Dean was.to the effect thatr.apparent1y because of certairi matters that bad occurred since.January, 1976, that the grievor "did not meet the standards the College required" in a teaching ma~ter. No notice of termination was given, although the College did tender payment of three months' salary, apparently in lieu of notice. :":,~:,:~,:,,'.;!.,',,;.,~' ;,:"(,:, > ,. :~:;~'I;. '->,'::-': .i1",,:,,/;~,<,,:.~: /:;~:.:..:<.::.~,;.t:'.\... _ I ~ - L \f I' .L \.1 \ ", .,,;l .... . J" .' . 'I . t. . .. . . I .,.",' .,.,.1 "' \ " I I . . ,-;......,: .... .L" ." ....... "w-. . .." . .. .!a'.... ',' "" .:. ,,"; tJ.. ". '. .... ". . I, . . . .'.. .', . . .. .'.. .. .:", ,. '1",.. ., '.. : ' ... ',:;> ::; (;:\: i. ,', :;,;:' .'::,~o::,( ,: \: , r: :::'~ :',,' ;;:::':: ' '--~. - 3. - Article 8.01 (a) of the collective agreement is as follows: 8.01 (a) An employee will be on probation until he has completed the probationary period which shall be of two years' duration. During the probationary period the employee will be informed o~ his progress at six- month intervals. Also, it is understood that an employee may be released during the first five months following the commence- ment date of his employment upon at least thirty (30) calendar days' written notice ,and during the remainder of his probationary period upon at least ninety (90) calendar days' written notice. The grievor was, ~e think, "released" within the meaning of article 8.01 (a). She was released during "the remainder" of the probationary period, that is after the first five months but before its expiry. It was open to the employer to release the grievor during that time, upon ninety days' written notice. As we have stated, no such notice preceded the grievor's release during her , . probationary period. Whether-the failure to .give such .notice constituted a violation of the collective agreement is not, strictly speaking, in issue before us. As has been noted, a payment said to be in lieu of notice was tendered. ~. The term "release", as employed in an earlier memorandum of understanding between the parties, was said by the Divisional Court, in an application for judicial -: . '.~~.. 4 )1.-. review of an award by the Public Service Crievance Board '- made in the case of one Aitchison (June 6, 1975), a teaching master at Fanshawe College, to mean "the total cessation of -- the relationship of employer and employee --- before the .... expiration of the two year period". In that case an employee had been g~ven three months' notice of termination -- or release, the notice being given during the two-year period, but the termination being effective after the two-year '- . - ~ period had expired. The question of the Board's jurisdiction turned on the question whether t'he grievor had been "releasedll during his probationary period. Since the grievor in that case remained in the employ of the College until \ J. a date after the expiry of the two-year period, his employment was not in fact terminated within that period, and the .Court, relying on the. defini~ion of the.' ~1~ ,~,".release" . . , which. we have quoted, .quashed the Board's award ~"which . had been based.on.a.findin<;r tha.t. the..grievor nhad not achieved - . permanent status when his release. took effect". '- In our view; weare bound to apply the -\ definition of the term "releasell enunciated by the Court. In the.Aitchison case it is clear that on that definition (with which, with respect, we would agree), the grievor was not "releasedll until after the expiry of his probationary ) ........,....,,,...,,,,....~.__.. ''Il~' :..04;.......... '-';..,..1. '~hl,.'.". ......,..:.:..,.~~. ..........,.~:..'.....\'..".,., ~....' '. .', , .. ~ '- ,; - 5 - period. In the instant case, on the other hand, the employer took those steps generally associated with the "total cessation of the relationship of employer and employee", and it took those steps before the two-year. period had expired. 'In the instant case the employer purported to, and took appropriate steps to "release" the grievor, that is to terminate the employment relationship. ~ , during the probationary period. That is something which the collective agreement contemplates the employer may do. Under article 8.01 (a), however, such release may be effected on notice. The question which arises in the instant case is whether or not, since there was no such notice, the release or termination must be said to be a nullity. 1 I If the release was' indeed e~fective and not .a nullity, then it is clear that this board has no jurisdiction to proceed further. Articles 8.02 (a) and 9.06 leave no room for doubt on that score:.. '8.02.(a) It being understood that the release of an employee during the probationary period shall not be the subject of a grievance under the Grievance Procedure, an employee who has completed his probationary period and is discharged for cause may lodge a grievance in the manner and to the extent provided in the Grievance Procedure. 9.06 Dismissal It being understood that the dismissal of an employee during the probationary period shall not be the sUbject of a grievance, an employee who has completed his probationary period may lodge a grievance in the manner set out in sections 9.07 and 9.08. ...~ .~.~~.. . '. - 6 - lri the instant case, we think it is clear that what the employer sought to do was to "release" the ...... grievor, pursuant to article 8.02 (a). Certainly it may be said to have "dismissed" her within the meaning of '- article 9.06. The two terms are not quite synonymous: "dismissal" has, we think, a somewhat broader connotation, ~ '- reference to a termination of employment during a '- probationary period, we think there is no substantial significance in the difference of terminology as between article 8.02 (a) and article 9.06. The ~stance__o~ ~~~ ~greement is clear: ~~re the employer terminates_~~e '- \ , employment. of an employee during )}L~J:Ob~t-; ona.r.~. ~:){~ri.odL . that te.rmination 'tshalr not be the subject of a grievance,lI. ~ It is not for this board.to consider the wisdom or otherwise . .... of the employer.rs. actr- nor,. to conclude .that the. employer - '- may have had ample opportunity to assess the employee even e ore the expiry of the period. Our jurisdiction -------- - '- in the matter turns en our finding whether or not the griever was. IIreleased" or "dismissedll during.her probationary period. Ne make this determination in the exercise of our jurisdicti-.9i1 to determine "whether the ------ ,""" ., - 7 - , matter is arbi t-r;::,~le!'. -pursuant to article 9.04 (a) of the collective agreement._ In the Aitchison case the Divisional Court, having defined the term "release" and having found (as is implicit in the decision) tha~ \~e grievor was no longer an employee at the time of, his actual termination, quashed the award of the Board and remitted the case for fu~ther consideration. In its reasons, the Court stated (and again, with respect, ~e would agree), that "The mere notification that such termination will occur in the future does not of itself terminate the relatirinship." In. the instant case, of course, the grievor was advised of an immediate termination of emplo~~nt. In the Aitchison case, however, the -Court went on to make the follo\'ling statement: In adopting this view; we recognize the fact that this_ interpretation of the term "release" will have the effect of shortening the probationary period to 21 months as it will then be incumbent upon an employer in circumstances like this to give the three months' notice at a time sufficiently distant from the expiration of the proba-tionary period to allow the three months to run within the . two year period. I should add as well that, in our view, this interpretation of the agreement is not only the proper one, but also the only inter- pretation that the language of this agreement could reasonably bear. . With respect, these appear to us to be, strictly speaking, obiter dicta. While we consider ourselves bound to apply the Court's definition of the term "release", .' ' - 8 - which would in any event be our own, we do not consider that it is within our jurisdictio~ to ~~t to r~~~ "- ,the ~robationary ~~d_~ll:L'<!l_~jir.~ i_p~L-b..ve-set- 0_. (;l) in express terms in article B.Ol (a). Our jurisdiction _. _._ _ -' ,.t-;T"::"'I.'" _~ J.. ..~,........,.. ...T... -...... ,. -'.~- in this respect is limited in any event by the general law, and is expressly limited by article 9.04 (d)'ofthe ~ collective agreement, which is as follows: 9.04 (d) The arbitration board shall not be authorized ~ to alter, modify or amend any part of the terms of this Agreement nor to make any decision inconsistent therewith not to deal with any matter that is not a proper matter for grievance under this agreement. c... ~ collective agreement provides that the employer may release ) In our view, where article B.01 (a) of the a probationary employee upon notice, it does not make the giving of such notice a necessary condition precedent ~ to, the release. Failure to give such notice would be a. violation of the agreement for which an appropriate remedy '- {such as. payment inl~eu of notice} could be gra.?ted., It . . is our view,_ however,-. that it would. take'. express language .- in the collective agreement to establish the giving of notice as a necessary condition prprpAQP~ ~n th~ release of ~ probationary employees, and to effectively alter the express- "--"~" provision of the agreement;.. th~!,_,_!:~~~ob~j:,ioEa~period . . _......~. "shall be of..j;Jj..Q~r::-?' d\lrationu. Such language does not -- ~ - 14........---_ ~........--. appear in this collective agreement. :r ':.)~;, ;~;"~ ,,>~' . ":~':", ~ . ': :>'~'I:. ,~. :":.: ': ell" ~,D: <.~.: ,:.;);.',:.:~ ';' ':',~/:.(':';., ~ .,'=-_....,..............:L...... .....' ..~... ." ,.... ,,'~.,.. ................' ~. \.\ , , . '. '0 11;."':'...,' I :'_.'; ">,:;.. .~', >: ,<:.::.\~,'" "'.' .<<.,': '~ ,.,:,. . .. .' . ~ ',.'..,', I . j.. ~. Il" , F~ - 9 - For these reasons, we conclude that the College did indeed release or dismiss the grievor during her probationary period. It is clear from articles 8.02 (a) and 9.06 that such release or dismissal shall not be the subject of a grievance. The instant case, therefore, is not arbitrable under this collective agreement. The grievance is accordingly dismissed. DATED at Tqronto, thi s 3 0 ~ day of July, \~:cJ) ~~~:J C airman . . union Nominee -\ \ ' . f/ Lv. U~~,Lf Employer Nominee II , ,. .. . .; ~ .... '. ",I', .'." ': . I , C~ "'""'I F~ - j c j ~ i' ,~ '-' NO, 414/76 , III I 373 G sn( g. IN THE SUPREME COURT OF ONTARIO DIVISIONAL COURT GALLIGAN, SOUTHEY AND MALONEY, JJ. IN THE ~~TTER OF The Judicial Review Procedure Act, S.O.1971, c.48, AND IN THE ~~TTER OF An Arbitration Award Dated July 30, 1976, ~ I BET \'l E E N: THE CIVIL SERVICE ASSOCIATION OF ONTARIO CINC.), Applicant - and - '-..-/ THE ONTARIO COUNCIL OF REGENTS FOR COLLEGES OF APPLIED ARTS AND TECHNOLOGY, Respondent - and - J.F.W. WEATHERILL, J.K.A. HAYES and W. WRIGHT, Arbitrators. GALLIGAN, J.: (Orally) ) ) ) ) ) ) ) ) ) ) C. G. PALIARE, ) for the applicant ) ) E. T. NcDERNOTT A},'D ) J. R. HASSELL, ) for the respondent ) ) ) ) ) } ) } ) ) ) ) Heard: February 28 and ) March 1, 1977. This is an application for judicial review brought by the applicant, seeking an order quashing the --' ~ ... -;; .2- 'L "'\.....; award of the majority of the Board of Arbitration on July 30, 1976. The application arises out of a grievance presented by Rose Grotsky with respect to the termination of her employment with Seneca College of Applied Arts and Technology. in Toronto. It is common ground that Ms. Grotsky was employed by Seneca College, commencing the first day of May, 1974. It is also common ground that on April 14, 1976, she received a letter from her employer, which states as follows:- , j , , " In confirmation of our conversation of today's date, this is to notify you that I am unable to recommend extension of your faculty appointment beyond the probationary period, and that your services with Seneca College are terminated as of now. ~-./ You are advised to contact Personnel Services, Finch Campus, regarding final salary and benefits to which you are entitled." On April 22, 1976, Ms.. Grotsky filed the following grievance:- " I grieve that I was dismissed improperly and without just cause in that I was a) denied evaluations and b) denied 90 days notice of termination. Settlement Desired: I request reinstatement to my former position without loss of pay and other benefits." l.O-_-<i '-- -,; ,-,- - 3 - '- The parties to this application are bound by ~, ~. a memorandum of agreement extending from September 1, 1975 '- to August 31, 1976. It was strongly contended on behalf '-- of the respondent that because of the privative section contained in s.85 of The Colleges Collective Bargaining Act, 1975, our jurisdiction to review the award was very narrowly prescribed .to matters of strict jurisdiction. We have come to the conclusion that it is not r -: necessary to decide the extent of the restrictions imposed by s.85 in this case because weare of the view that even if we have jurisdiction to review the decision of the Board broadlj, the decision of the majority was one which is reasonable and one which can amply be supported reasonably upon the wordin;:; of the agreement. The decision of the majority of the Board was that the grievor was not entitled to the benefit of the grievance procedure under the agreement because the termination of her employment took place during the probationary period of two years following the commencement of her employment: The applicant strongly suggested that we were bound by the decision of this court in a case which - 4 - c, ''"-'' is called the Aitchison case, the correct style of cause of which is The Civil Service Association of Ontario v. The Ontario Council of Regents for Colleges of Applied Arts and Technology, which decision was given by this court on June 5, 1975, and apparently is not yet reported. I do not think that it is necessary to review the Aitchison case in detail, because in our opinion it is distinguishable on its facts. In this case, th~ total cessation of the relationship of employer and employee did in f~ct occur prior to April 30, 1976, that is, it did occur ....-ithin the probationary period. In the Aitchison case the court held that the employee was not a probationary employee at the time of termination.of employment by the employer. In this case, on its facts, this grievor was still clearly within the probationary period at the time the termination occurred. Article 9.06 contains among other provisions the following words:- " the dismissal of an employee during the probationary period shall not be the subject ~, " 01 a grlevance,.... . While ....-e have been presented with an attractive argument to ~, "--'" - 5 the contrary, it seems that the Board was acting reasonably when it concluded that the grievance of this grievor was not arbitrable under the terms of the contract. '- c " It is our opinion, therefore, that the Board was acting within its jurisdiction when it determined that the particular subject of grievance was not arbitrable and it appears to us that that decision was one that could reasonably be arrived at having regard to the provisions of the collective agreement as a whole. Accordingly, this application must be dismissed, with costs, '--.../ Dated: March 7 , 1977. , e.f^/ = ~:, ,--" ~ .-' \ . - ~ . \ ~>, ~ I, - . J ~ -...J .... )}- . \ ) , I ,"', '(:' : ".~~~..:~~ . ;...r.. ; ~ J : '-':;-hi;iffE'~~TTER .OF AN,. ABITRATION , , -. ..;\,~Et~E,E~;. ,~.- , . :' .;\:}}_~;i\~BtTRATI ON': r 1 . ....'. _, . . '".;...~. ~.., ,.".,~gJ?-E;fJl~CliJf.oR- THE ~Q~~EGE:.. .:;(:/"._'.~/':1":;;:'~:~AP.itiil.~-1:~G,:fOR THE UN ION: : . ". ,. t~.-.,. \" '-t: " . ",.. ~ . .. ..- .... CA Y&l '" THE :ONTARIO :COUNCIL OF REGEiHS FOR. . 'COLLEGES OF'APPLIED.ARTS AND TECHNOLOGY (St. Clair College) {,,-. , - and - -THE ONTARIO PUBLIC SERVJCE EHPLOYEES UNION 'Grievalice'.of G~L~ Nfn:to G.J. Brandt. Chairman J.H. McGivney. Q.C.. College Nom;nee C. Trm'/er. Union Nomi nee . C.F. Murray_ Counsel John Payne. Oi rector of Personnel. , J ~ . -Oucha rme. Cha i rman . of Automoti ve Richard Nab;. Grievance Officer George L.- Minto. Grievor ;~~Th~-:::h'~aring was heJd in;,London. Ontario on December 14. 1978. .~ ~. i; . ~. ;. . I ~. ~ : . . ,. , ~. .. ~ 'I . '" - ~. .~. :l( '" . . .! '" .'^'\~ARD . . . ,I . ,... -'r . ", . '1 . j. ~:.., \ ... . ....-r )/ , -. ....-... --'" ( ".';' .... In thi s case the gri evor. Mr. George Hi nto tin t\'l;ch,$!para te' . grievances, alleges that his E~ployer, St. Clair College~ has violated the collective agreement in that it failed to giVe;~im'~'pro-;~notice . ' , , of his release from employment and that it failed,;,ui.';9~~~.a . . . ,. .~ ;. '" ~ ~. . .' ;'. ~"":!I) .1.;11 vacation to \'1hich he is entitled. .t ,tf.,j',IoL..\.l'l At the hearing into the matter the parties.a~~d.r.that. save in r~spect of certain of the r€lief r~quested"~by~,~:~r, the .' ..', , - ."". Board \'/as seised of ~n arbitrable grievance. ~~'~:~.ri" ',J', .."~,t . The issue in this case concerns the status antf:::I'!.ig-ht"5 of persons ,", :.... '''. ~ .. ~ .... ,--- hired under individual contracts of employment as sessiona~~pl~yees.. "More . , ..~ . particularly the grievance protesting improper not1ce concer,ns. the extent of the rights, if any, of a sessional employee to d~anp.",J).ot.iipe of rei'~as~"\~-<-" .. . . \- from employment and, assuming such a right .to ex~st an9!;'~Qj;1Lwr~ peen violated, .the extent of the relief \'1hich may beaffQrde.t~er~Y. .The grievance respecting the failure to give a vacation,~o."~~t1"e; extent , . -- -- to \'lhich sessional employees enjoy .the .same rights"':~S;:I~i';~ees to . .. . ~ vacation entitlement. . " .'- '.Oi'":, :\" '... ~'"' '. .."'.!' '. .'. '\ ~:,. - . ' There is no serious' dispute as to the factS:,.,;..Aso'~~.r;esu)t of. the loss of a pennanent faculty member on assig~ent for,:a'yea.r and as a resul t of an undertaking between the Coll ege and. th~:l>.~cial Government to run a 40 week pilot program in motor ven':J'Cle~;mechanics it became necessary for the Call ege to e~gage so~eone"w'j~li.:tbe proper - - '-- ., , qual ifications to assist in the carrying out of 'the. progra~. Consequently " ~. on August 13, 1976, the grievor \'las, by a letterfr~~ ~1.H. Geraedts, the Dean of the School of Technical Arts and Tr~des, offered a position in the '\, .... . ~.. 2. - Automotive Department-bf the SctlOol of Techni ca 1 Arts and Trades. By letter dated August 17th, 1976 the grievor accepted this offer of a position. The offer and the terms of the contract of employment are set out in the letter of~Aogust 13th which recites as follows: - ., - '.: -~jJ'<o' .. :i'. .:". "'" "D,ear ~1.r. Mi nto: :::j',::,. -"If'. f:~" -. . St. Clair COllege .is pleased to offer you'a sessional , ." t-!achitig'posi tion in the Automotive Department of the School of Technical Arts and Trades for the period August 30, 1976 to. June 30, 1977.. ,~.:," mt~b~.V0'YoiJ\1ill be required to teach 21 hours per \'/eek for a ' ,'w;eek1y..sa1ary of $322, \'/hich includes a vacation pay allo\'/ance. ...,:~~.~~ft('\'11," also be entitled to some of the fringe benefits the .,Coll ege offers. These incl ude medi ca 1 coverage, sick 1 eave ~redits, and life insurance. We also require a statement frQm ,You~ physician that you are in good health. t~~\"1 ~~~~ r: i." '.~.I.' -.. """.. .., If there is a shortfall in enrollment which results in ' ".""'':fOuir.s.erv ices no long er be i ng requ ired, your emp 1 oymen t may be terminated on two \'leeksI' notice or pay in lieu thereof." , '". "' ..,"\ . ":,/,On'Jurie 30,1977 the pilot p~ogram vias completed and the grievor's contrac' of-employinent expired on June 30, 1977 the term fixed in the contract for explrf~t:,f)tiH,ngthe summer of 1977 negotiations to run a second pil ot p'r<>gram:Were concl uded and, th~ gri evor was asked if he \'/oul d .1 i ke to come .::"baokt;.'J'lJ~'i-ndicated that he would and, as a r,esult, a letter dated , Ju.ly.'.7, 1977 \'/aS sent to him, ,again by Dean Geraedts. That letter recrtes"as: fo 11 OvlS : ~ :.........~1\. ~F~..-.. : ." . '<'~1Jear:'f.1r. "linto: , ~;. :iSt. Clair College is pleased to offer you an extension of your employment in the Automotive Department of the School of'T~chnical Arts and Trades. This extension is for the . ~e~iod August 8, 1977 to April 1, 1978. .. ,-,. ,-. . ~, ,3. . c-; You will ,be required to teach twenty-one hours per week and you will receive a weekly salary of $348. This rate of pay includes a vacation pay allo\'lance. Effective October l~ 1977 you will have completed on year of the two-year. probation- aryperiod as outlined in the faculty contract. As a result. your status will change from sessional to. probationary and 0 you will be required to pay union dues.. You \Olill be eligible for life insurance, medical coverage and sick leave credits. If there is a shortfall-in enrollment, or if for any other reason the College determines that your services are no longer required, you will be given two weeks' notice or the equivalent pay in lieu of notice. . If the above offer is acceptable to you, please sign belO\'1 and return thi s' 1 etter to my offi ce ''Ii thi n seven days .1.0 . , On July 13. '1977 the gri.evor signed the document indi cati ng that he accepted the terms and conditions of this employment' offer in their entirety. Although the term of this contract of employment was stated' ~ ... o , to expire on April 1st, 1978 Mr. Ducharme, the Chairman of the Automotive Depar~ent in which :the grievor was employed, spoke to him about the end of March and asked hlm if he would be interested in staying on through to the end of June. T~e grievor and Mr. Ducharme came ~oa verbal agreement that his employment \'Iould continue and. on April 4th, 1978 the grievor received a letter from Dean Geraedts stating that '- . ',- .- o , St. Clair was "pleased to offer you an extension of your present . employment from April ls.t, 1978 to Jun~ 23rd. 197811 and stating that "all other terms and condi.tions remain as outlined in your letter. - '- of [July 7, 1977]". Thegrievor did not sign any document indicating his acceptance of this offer although he did continue on, in employment until June 23~ 1978. No offer of employment was made to the grievor for the academic year 1978-79 and his employment relationship with the College was cffectivelv severed as of June 23~ 1978~. ., . - 4. =-=, , It is the position of the Union that . under the provisions of the collective agreement (to beset out belm'/) the grievor \'laS entitled to receive 90 days written notice of his release from employment and that, having not received such notice, certain remedies flow therefrom. . The College does not deny that, apart from the contract of employment i tsel f (as set out in the 1 etter of July 7, 1977, as extended by the 1 etter of April 4, 1978) which contract specifies its own fixed date of termi~ation, no other written document notifyin~ the grievor of hi~ release from B~ployment was sent. As far as the matter of vacation entitlement is concerned it is admitted that the grievor \'/as not given a vacation follO\'l1ng the completion of the services he provided over the 1977-78 year. However, it is contended that, notwithstanding that fact, the College has in any event met its obligations to ~he grievor in respect of the payment of the vacation pay allowance. We propose now to consider the arguments with respect to each of these separate,grievances. --- - - -. -, "" . . 1. Failure to Provide Adequate Notice of Release .The provi sions of .the coll ective agreBllent .\'lhich are rel evant to this claim are Appendix III, Sections lea) and l(c) and Articles 8.01 (a), (c) and Article 8.02(a). These Articles recite as follows: "Appendix III l.{a) A sessional employee is defined as a full-time employee appointed on a sessional basis for up to twelve (12) full ~onths of continuous or non-continuous accumulated employment in a twenty-four (24) calendar month period. Such sessional employee may be released . upon two (2) weeks' written notice and shall resign by giving 1\010 (2) \'leek's \'/ritten notice. I q- /~ 1. (c) If a sessional employee is continued in employment for more than the period set out in paragraph (a) above. he shall be considered as having completed the first year of his two (2) year probationary period and thereafter covered 'by the other provision of the Agreement. The balance of such an employee's probationary period shall be . twelve (12) full months of continous or nonccontinuous accumulated employment during the immediately follo\'1- ing b/entY-four .(24) calendar month period.. . 5. a.Ol(a) A full-time employee will be on probation. until he has completed the probationary period which shall be two years' cOlltinous employment. 8.01 (c) During the probationary period an employee will be informed in writing of his progress at intervals . of six '(6) months continous employment or s,ix (6) full months. of accumulated non-continuous employment and a copy given to him. Also, it is understood that an . employee may be released during the first five (5) months of continuous or non-continuous accumulated. employment following the commencement dateofh,is employment upon at least thirty (30) calendar days' written notice and during the remainder of his prObationary period upon at least ninety (90) calendary days' \'1ritten notice.1I ... ~ ( - The argument of the Union is that, commencing OctOber 1. 1977. the grievor had continued his employmeni for more 'ihan the twelve month period which is prescribed under Appendix 'Il!. 1. (a) as defining a sessional, employee and that. by reason of Appendix 'Il!, 1 :(c) he then became..a probationary empioyee'entitledto certain, rights under the collective agreement one of which is the right to receive notice of release as per Article a.Ol(c). In the Union's submission. this effect is confirmed in ~he 1 etter from Oean Geraedts to the grievor. dated July 7, 1977, ',hich states that "effective October 1. 1977 ... YOUr status wi] 1 change from sessional to probationary,....: Having thus established the right of the grievor to claim the protection of Article 8.01 (c) the Union then submits that j'n the circumstances of '-- ....... T ., b. ......, thi s case that Articl e.-was not cOinpl i ed wi the In that regard "it submitted that neither the letter of July 7. 1977 nor the letter of April.4. 1978 can be treated as constituting written notice of release' from employment. In respect of each of these it was submitted that. although tney did expressly refer 'to the. termination date of the contract of appointment. - " , . they,did not provide sufficient explicit notice of release such as . to satisfy Article 8.01 (c). Rather it 'lIas suggested that in essence what they were was an exteosion of employment and not a notice of' " release from e~ployment. In any event. with respect to the letter of April 4. 1978. if that \'Iere to be treated as the \'/ritten notice it was not given within 90 days of the date of release~ Finally. .it was submitted that since the notice was deficient .it coul d not be treated as notice and that consequent]y' the. gri evor . still "remained in the employment of the College entitled to all ,the ..... ..... "'"' -, benefits which would flow from his status as such. In the alternative it was. submitted that. at the very least. he is ent~tled to be given "money compensation in the amount of 90 days pay for the defective noti ce. The College advanced a number of alternative arguments. First. it was argued that a sessional ~~ployee on a fixed. term contract need not be given any notice where the contract comes to its natural conclusion upon the expiry of the fixed term stated therein. Secondly. it was argued that. if written notice is required. then the appropriate. provision governing the giving of that notice is as contained in Appendix III, l.(a) rather than Article 8.0l(c}. Thirdly. it was argued that. if Article 8.01 (c) governs then the College has. in any event. complied \.tith the notice requirements. Finally, it 'lIas a,'gued that to the extent that the Union here ~ 1. was seeking reinstatement of the grievor to the status of an employee. the grievance.was not arbitrable by reason of Article a.02(a). It is appropriate to set out in detail the substance of . each of these arguments. The first argument is that irrespective of. whether or not'Appendix III, l.(a) or Ar~icle a.Ol(c) applies in neither event is there any obligation to give notice where the'release _ '" of an employee on a f.ixed term contra~t comes about by reason of the. natural' e~piry of the term' of that contract. The kind of contract under which the. grievor was employed was dis~inguished from the sort of contractual relationship which obtains between regular" full-time employees and the College. In the latter instance there fs no fixed term to the period of the ~mployment w,hich is indefinite in the duration and,therefore, in order to "bring about an end to the employment, the College is required to give adequate \'larning of its intention in the form of ,."ritten notice. However,it ,."as submitted that.;n the situation of a fixed term contract, such. as .... '- '-. ..... ....... :. I. obta,ined here. it is known, from the beginn~ng \-/hen the contract of employment will come to ,an end and that as such there is no necesslty for giving any \-larning where the College does not intend - - . to termi.nate that employment prior to the expiry 'of, 'the ,period of stated in the contract. Instead, the only time that th~ College ...... . , needs to:~rovide notice is where it proposes to bring about,what Ccun~el for the Cbllege described as the "extraordinary, u~natural, or p'rernature" termination of the relationship. Thus, in the 'circumstances of this case, since'"the Employer did not bring about a ,premature end " - --' to the f"ixed term contract,. there \~laS no need to give notice. In o. ~ i: } this connection the Board \'las referred to principles of the common lah' of contract under which notice is not required to bring about the natural end of a contract for a fixed tenm. The first alternative submission of the College \'las that. in the event that notice is required>> the particular period of notice is that prescribed by Appendix III. l.(a) rather than Article S.Ol(c). ' In that regard the College submitted that. af.ter October 1.1977 at \'lhich. point the grievor was convnencing his thirteenth month. of employment. his. status did not change from that of sessional employee to pr~bationary 'employee but that instead he remained as a sessionalem"ploye:e entering the second year of his probationary period. In short he,\'las, from that --. --. - -- '"" .... ""\ point on, a probationary sessional employee. It was further argued that, since he remained a sessional employee, his rights fell to be ~:, "I. determined under Appendix III. l.(a) according to \'/hich he could be released upon two weeks' written notice. The basis for the College's submissions in this regard rests on the concluding sentence of Appendix III, l.(c). It was submitted that the principal effect of the continuation in ~~p1oyment past the' twelve month period as prescribed in Appendix III, l.(a) is, not to convert the employee from a sessional employee to a probationary employee, but merely to treat his first year of employment as the first year of his probationary period as a sessional employee. It was argued that this is confirmed by the concluding sentence of Appendix III, 1. (c) which merely soes on to indicate the manner by \'/hich "such an employee", that is, a sessional employee, may qualify as having served his probationary period. Thus, according to this submission) the grievor's continuation in employment past the, twelve mont~ per'iod had no effect other than to permit him to claim that . . he had served the first year of his probationary period. The only significance then of the October 1. 1977 date is that it would mark the ~omm~ncement of the second twenty-four month calendar period during which he must complete his remaining twelve full months of continuous or . non-continuous accumulated employment. , .. :On the assumption that. at the time of his release. the grievor remained a sessional employee. the College submits that. having sen~ him the letter of April 4. 1978 in which his employment extended to June 23. 1978) it had given him two weeks' written notice of his release. The second alternati,ve submission of the College \'las that) in the event that the Board should conclude .tn~t the grievo~ wa~ entitled to notice under' the provision of Article 8.0l(c). the . . College had nevertheless complied with that requirement. 'It argued that his employment during the 1977-78 academic year should not ,. , , , 9.. . ~ . ... '.... ..... '.... ..... ..... '- '- ""- - ~ -- " - 1 a. 1- ~le deal now \'lith the various argLiments raised in respect of the issue.as to the adequacy of the notice given to the grievor. It is appropriate to deal first with that argument of the.College which states that, whether or not one is guided by Appendix III or by Article 8.0l(c), in either event there is no obligation to give notice where a fixed term contract is permitted to expire 'by passage of time and is not brought to a IJpremature or unnatural" end. Hhatever the position may be at common la\" ,-lith respect to individual contracts of employment the parties to this collective agreement have specifically made -provision for termination of contracts of employment, for both sessional employees and full-time employees on probation. These provisi'ons for te.rminationare contained in.Appendix III, 1.(a) and Article 8.alec) respecti~ely. In neither case does the language suggest that the ~otice requirements according to which release may be effective only apply in the circumstances of an unnatural end to the contract. As the Board derives its jurisdiction from the collective agreement it mus~ limit its consideration of the rights and obligations of the.parties to those provisions set down in .the agreement itself. . He therefore reject the argument that would introduce, by implication from the common law, a restriction on such rights to notice as are contained in the collective agreement. Thus the principal issue becomes one of determining whether or not the grievor's rights to notice are governed by Appendix III, 1.(a) or by Article 8.al(c). He are unable to accept the arguments advanced by the College in connection with ...... -: ... -. "', 11. 'the issue as to which of these two clauses governs the required notice of release of the grievor. That. if 'accepted. would render, meaningless the concluding words of the first sentence of Appendix III. ... l.(c). that is, "and 'thereafter covered by the other provisions of ,. " " ' the Agreement ". Appendi x I II. 1. (c) does make provi sian. for ,ca 1 cul ati ng the service ~y" a sessional employee of his probationary period of employment. However. it also provides that certain rights\'liil a.ccrue to hi'm upon the completion of the first of .his 'bio year 'period. \~e \. o. are unable to. see how the concluding sentence of Appendix III. J..(c), . upon.which Counsel for the College relied. which provides only for the calculation of the balance of the probationary period of a sessional employee, can be taken as depriving a sessional employee who is continued in employment beyond the period set out ,in Appendix III, l.(a) of ~uch rights as "he may ha~e under the other provi.~ions. of the agreement. It may be added that this construction does not r.ender meaningless the concluding sentence of Appendix III, l.(a) which". r. . . . remains applicable to the situation of a session employe~who has not continued in employment past the per~.od prescribed in Appendix III. ,1 . (a) . I n the case. of such employees ,re 1 eas e may be effec ted upon the giving of two weeks written notice. . We therefore conclude that the grievot's rights to notic~ are to be determined by reference to Article B.Ol(c). The. issue now becomes one as to whether or not the College has nevertheless complied with any requirements imposed on it thereby. In that respect it may be observed initially that the document iss~ed on April 1, 197B wherein the grievor's employment was extended to ... '- .... ... - , _. -- I (:: . .. June 23. 1978 cannof be treated as a third individual contract of '; employment under which his services were engaged. Unlike the other two contracts there is nothing to indicate the grievor as having provided written acceptance of a new offer and it consequently should be treated as simply an extension of the original contract entered into on July 13. 1977. What is at issue here fs whether ...... , 'or not Article 8.bl(c) requires. in the context of a sessional "'" " employee on a contract with a fixed expiry date. express written notice of re1eas~ over and above that which is. explicitly set out in his contract of employment at the time that he is hired. Common sense would appear to di~tate that, in the case of a sessional employee on a fixed term contract. there is really not the same need for notice as is the case with someone on an indefinite contract. A sessional employee is aware of the insecurity of his tenure from the moment of hire. and the sorts of considerations which argue for adequate notice of release from employment without a fixed termination date are not as persuasive~ Notwithstanding t~ose consi~erations it is the. duty of this Board to construe the agreement and. even though .the agreement may require something which is unnecessary or indeed Silly in its context. those are not reasons for refusing to ' recognize the obligation. In pur opinion Article 8.0l(c): does requir~ specific written notice of release and we are unable to conclude that the contracts under which the grievor \'/as hired. \.,hich contracts admittedly contained a termination date, can be considered as complying with a requirement that 13. adequate notice of release be given. The essence of those contracts \'/ere that they \'/ere either offers of employment or extensions.,of . employment and can only be technically considered as also constituting notice of rele'ase from employment. ~Je therefore conclude that the grievor was entitled' to specific written notice of release from employment which notice should have been provided at least 90 calendar days in advance of.his release. There is no dispute that such obligation was not met and accordi~gly the College has violated Article 8.0l{c) of the collective agreement. The issue now to be considered concerns the appropriate relief that should be awarded in respect of this violation. In connection - : \.~ .J ~ with the matter'of reli€f the Union claimed first thats'insofar as '- the notice of release was defectives the griev~r has not yet bee~ properly terminated and continues as an employee o{the College until such time as his rel ease is properly .brought about. Consequently s the, argument runs, the grievor 'is ent~tled to be reinstat~d in his employment and is entitled to receipt of all benefits denied him ~s a result of the v~olation of the agreement. The response of the College to this claim for relief is that such a:claim is, by reason of Article 8.02(a), not arbitrable. Article 8.02(a) provides ~ - as f 011 O\'/S : "8.02(a) It being underst60d that the release of an employee during the probationary period shall not be the subject of a grievance under the Grievance Procedure, an employee who has completed his probationary period and is discharged for cause may lodge a grievance in . the manner and to the extent provided in the Grievance Procedure." -- ..- I ~. "' - The basis for the argument on behalf of the College is that, insofar as the relief claimed by the Union is that the grievor be reinstated it is in effect a grievance against the release of the employee .and as such is not arbitrable. In George'Brown"Co11ege v. OPSEU (Grievance of Godo et a1) the Soard dealt with an issue involving a grievance by probationary employees alleging that the notice provisions of Article 8.0l{~) had not been complied with.. The particular relief requested in that case did not go as far as the:relief requested in this case insofar as the Union sought merely a declaration th~t the nqtice of termination of employment was null and void and a direction to the Employer to serve proper notice of termination in keeping with the collective agreement. The arbitrator dealt with the matter of arbitrability as follows. .:-. - .., - '; -. II I n our vi ew, the gri evors may, purs uant to Article 9.01, bring a grievance on the question of whether or not proper notice has been given under Article 8.0l{c)" TheY\"lOuld not be entitled. under"this co11ective'agreement, to grieve their.~r~leaSe":as such; but,the . question whether there has been a proper release - that is. whether the proper notice was given-is a distinct question and one \oJhich is, in our vi e\'l, arb; trab 1 e. Othenli se the provisions of Article B.Ol{c) would be unenforce- able." (Emphasis added). .,. , . .] 5: .~ " ' In the alternative .~he Union claimed 90 days pay a~ the relief.to which the grievor is entitled for the breach of the notice provisions of the agreement. In response the College submitted that. the 1 etter of April 1", 1978 shoul d be treated as cons ti tuti ng the. wri tten noti ce requi red and that, since that 1 etter \'1as 'recei ved '.some 80 days prior to the date of termination, any liability of the 'College in respect of its failure to provide the full 90 days should be limited to t~e difference between the notice required ana the notice actually provided, that is, a period of,lO days. . For the .reasons set out above we cannot conclude that the letter of April 1st, 1978 constituted the written notice of release contemplated by Article 8.01(c). As indicated above that letter was in fact an offer . to extend a' period of employment and \"as not 1n fact a notic~ .of ' . .~.~ .....:"" . -. c'. y. . \" . :'~:. ..... ., , .re 1 ease from employment nobli thstandi n9 the fact tha tit did c~ntemp 1 ate ..... . . a fixed date .for the termination of that employment~ We therefore conclude that the grievor is entitled to receive.90 days pay'for . the failure of the College to provide him with adequate notice of release as required by Article 8.0l{c) of the collective agreement. '-. '- 2. Failure to Grant.a.VaCation '- This is a claim that the grievor.was not given the benefits to which he is allegedly entitled under Article 5.01 of the agreement. -...- There is no issue bet\'/een the parti es as to 't/hether or not the grievor is a person who qualifies as one entitled to the benefits contemplated by Article 5.01. There is however dispute as to what 16. ...... those benefits are) in respect of a sessional employee, and as to whether or not.the College has complied with its obligations under Article 5.01. Article 5.01 does not specifically provide for the payment of vacation pay. All it states is that members of the ,. . '.{. ... teaching faculty who have completed one full academic year's service are entitled to a vacation of two months as scheduled by the College. However, apparently the practise of the College with respect to its full-time members is to take their annual salary and divide it .\ ., by a factor of 26 and pay the result of that mathematical calculation on a bi-weekly basis for 52 weeks of the year. Thus full-time members } of the faculty continue to receive the appropriate portion of their salary during that period of time that they are off on vacation. It is the grievor's claim that) since his contract of employment. terminated on June 23, 1978, he was not given a vacation and moreover, unlike full-time members of the faculty, the salary he received,Qver the period of his employment did not include an amount in respect of the vaca~ion to which he was allegedly,~ntitled. Specifically his claim is that, since he did not receive the two month vacation, he should receive, in lieu thereof, t~o months pay. We find no support for this claim. Initially it maY,be . observed that his contract of employment recited that he \'lOuld receive , . a weekly salary of $348.00 which included 'Ia vacation pay allm'/ance". The figure of $348.00 per week was arrived at by taking the grievor's annual salary, which was $14,975.00, and dividing it by a factor of 43 which reflected the number of weeks actually served. In this respect the grievor was treated differently than full-time employees whose weekly . . ~ 17. .salary \"ou1d be determined by dividing their annual salary by 52 weeks, the full working year. The grievor apparently do~s not allege ~hat he did not receive an annual salary which was commensurate with. his skills and qualifications. , . .. We are unable to see in what respect the grievor has been treated any differently than a full-time employ~e for the purposes of determining vacation pay. The 'only sense in which a full-time employee receives a paid vacation is that he or she continues to receive 1/52 of the annual salary throughout each week of the:. vacation. No amount over and above the.~nnual salary is paid as vacation pay. The grievor appears to have been treated identically. He received an annual salary, the amount of which is not the subject. matter of any complaint. He received that annual salary in the form of a weekly payment which was based on the number of weeks' which.he actually worked. In effect, this grievance if a110\oJed would entitle the grievor to more than would be obtained by a J!r .~;~ ' .~ . ~ i.. \,. ':,"' ... - . ...... . , , ., full-time employee \'/ho was being paid the same annual salary as the grievor. Such an employee \'lOuld have. his annual salary.distribut- ed over the full 52 week~ of the year. The grievor's claim is that his annual s~lary may be received over the 43 week period and that, . in addition to that, he is entitled to a further 1/6 of his annual . salary. We are unable to see any basis in the collective agreement for permitting a claim of tHat.kind. . 'While it may be true that, unlike full-time members of .... faculty, the grievor does not receive a blo month vacation in the sense of a break from continuous employment, it'isundeniably .. '-' .. . 18. --. the case that the grievor did enjoy relief from work both during the summer of 1977 and the summer of 1978. The only difference , between his situation and that of a full-time member. of faculty was that>> at the time he \'IaS enjoying "rel i ef" from.work he did ~.t1 ..... \ ~" '\ not know whether his employment would resume in the fall. Whether or not his employment would resume in the fall 'he did, to al! intents and purposes>> enjoy a "vacation from work" \'ihen hi s contract c;>f employment te.rrrrinated. ~letherefore conclude that the College has not violated the collective agreement in having failed to. grant the grievor a vacation. Even if we are wrong in this conclusion it is evidently the case that, in the circumstances, to order the College to give the grievor a vacation is not a remedy having any practical effect. The only practical relief that the grievor can receive is an amount of money which would reflect his vacation entitlement and, for the reasons indicated above, we are satsified -- ... ..., that the College has complied \'/ith its obligations, under the collective agreement in that~respect. For these reasons the gri evance respecti ng Vacation is. dismissed. DATED in London, . Ontario this 2-a day..of;;6v..i,'!-j 1979; I x:aacuoI d i s s-en t . "..1 .H.t>lcGivney" (dissent attached) J.H. McGivney, College Nominee I concur/d~g;~n~x "c. TrO\.;er" (\d th addendum) C. T rm'/er, Un ion Nomi nee ' /. . - :. .. I Decision of Arbitration Board Me~ber J. H. McGivney, Q.C.. I wish to record my dissent with respect to the -, ..... . findings of the majority of the Board on the grievance alleging improper notice of release. ....r.. Ir.-=..,'. '). l ~ In considering this particular grievance, it is useful to have in-mind the nature of the employment arrangement which the College offered and which the grievor accepted. The specific details of the employment arrangement, . are. contained in letters dated April 17, 1976, July 7, 1977 and April 4, 1978 from the College to the gri~vor. , These letters establish .three distinct fixed employment periods the ess~ntial feature of which is that the ~irst and last' days of each of the employment periods was. fixed and known in advance of the starting date of the employment period. As a result of the July 7, 1977 letter the grievor knew that he was. to be employed by the College from August 8, 1977 to April 1, 1978. Further, the letter dated April 4, 1978 confirmed what the grievor had been told before April 1 that he was to be employed from April 1, 1978 to June 23, 1978. In the grievance with which we are concerned the grievor claims that he was given 'inadequate notice of his release by the College with respect to his employment which terminated on June 23, 1978. . ===:; 2 - " ... , In those situations where a notice. requirement - arises either by practice or by agreement, "the justification for such a requirement is founded upon human, humane and '- practical considerations; that the person whose status is being affected, usually prejudicially, has the benefit of .... bei~g forwarned of the event so that he may adjust to the.ne .... circumstances. In the employment situation the requirement of notice of termination exists in Common Law and in the ..... Employment Standards Act for contracts of indefinite hiri~g - but it has no application when the employee is employed under a fixed term contract. The logic of the distinction. is readily apparent from the fact that the employee covered. by a contract for a fixed t~rm knows, in advance, ,the last ..... day of his employment. I turn nO\v to t.he findings of the majority . The determination in the majority. award whi~h is particularly trouble"some is that and I quote from page 10 ,of tl1e a\'~ard, .' --- "the parties of the collect~ve agreement hav~ specifically "~ made provision for termination of contracts of employment ..,... : ~ for both sessional employees and full-time employees on probation. 0,....- In neither case does the language suggest" that " the notice requirements according to which release may'be -...-' effective apply o~~y in the circumstances of an unnatural end of the contract." Refer to Appendix III, 1 (a) and Article 8.01 (e). What this means with respect to a . ::...'-----=> . - 3 - - sessional employee with less than 12 months employment, is that the College is required to give him two-weeks -, written notice of release from employment in order to have - the employment contract terminate at the time both parties have previously agreed that the contract would terminate. .-'"- .r".. I '11: I submit with respect that the Arbitration Board should endeavour to ascertain the intention of the parties, and the words in the agreement are of great assistance in that pursuit, but where the words lead to a ludicrous result, the Board should favour the possibility which leads to a sensible result providing it doe~ no manifest disservice to the language of the agreement.. Assume a sessional employe~ covered by Appendix III, lea) is hired for ~he period.June 1 to 15. With the arrival of June 15, the employee would know that, in the absence of some other arrangement, June 15 would be 'his last, day of employm~nt. l,am unable to accept that the parties of the collective agreement intended to negotiate a-provision which would . have required that written notice of release be given to a sessional employee in order to have the fixed term contract terminate on its last day of the term. \vhile the interpretation of Appendix III, 1 (a)' does not bear on the disposition of this grievance, it does permit the majority to suggest that since the parties agreed that written notice of release was required in ~~---= , - 4- these circumstances'under Appendix III, lea) so too was ,it required in the same circumstances for sessional " ... I should observe that the majority award recogniz~: that to construe the agreement in the manner indicated ~ "may require something which is unnecessary or indeed . . silly in its context." And yet the majority express the view that it is. constrai~ed by the language to interpret the agreement in this way. With respect, I do not agree . that the Board is required to so interpret the agr~ement. '- tn my opinion it is open to the Board to determine.that the notice provisions in Appendix III, lea) ~elated 'to '- premature,.termination of a fixed term, .that the notice provisions in Article 8.01 ec) relate only to full-time -- .term agreement whic~ expires on the last day of the term ~ and this view would be consistent with the Common Law, --- statute law, the reasonable needs of the parties and the contract of emplayment.. l"1hile the argument was not raised at the hearing ;-. the point should be made that the collective agreement applicable to this grievance expressly recognizes and ~ :' - 5 L- sanctions the employment of sessional employees. The ., Arbitration Board should endeavour to give effect to the pro~isions of an individual agreement between the College '';& .. ~ and a sessional employee. In this case the intention of .1,- '"~- both the College and the grievor was that the fixed term contract would terminate or expire on the last day of its ---,', "' term without any further fqrmality or notice. The ... Arbitration Board should not frustrate the clear intent of the parties. There is one other aspect of the individual contract ... of employment between the grievor and the College and this involves the principle of estoppel. The effect of that co.ntract vias that the grievor in effect said to the. College II I will \'lork for the College for the period from August. 8, 1977 to June 23, 1978.11 The grievor in effect is.saying: II.X agree that my last day of employment is June 23, 1978. II It is clear that the grievor.made a representation which the Co~lege relied -on. Had the assurance not been given by the. grlevor, the College might well have enhanced its. .position vis a vis the termination by pursuing other steps. In my view of the principle of estoppel the grievor should not be permitted to deny the representation. In the majority a\\Tard there are several findings on the unacceptability of the letters of July 7, 1977 and April 1, 1978 as valid written notices of release. The following statement is taken from the award (page 13). E~ -[ :; " - 6 - "TIle essence of those t t th t h con rac s were a t eywere either offe~s of employment or extensions of employment"and can only be technically considered as also constituting notice ~ of release from employment." The requirements for a valid notice of termination are that the notice be specific as. to~ date of termination and that it be clear and unequivocal. .. The letters referred to would seem to meet the requir~ments for'a valid notice. The letter of July 7, 1977 would have ~ been proper notice of termination of the fixed term which expired on April 1, 1978 and I do not accept that the .. validity of that letter as notice was destroyed by the extension of employment to June 2~, 1978. In addition the College refers to the letter of April 4, 1978 and submits that it meets the requirements of a notice and 'if ~ .inadequate it is . only to the extent that it "Tas given to the grievor less than 90 days before his release date. Assuming that' the notice is valid as to. form and substance ", does the failure to give the notice, 90 days or more in advance of the termination date vitiate the total notice?' We might be guided by the practice in the civil courts where a determination is made that insufficient notice of ~ termination has been given. In that situation the courts would make an award which added to the actual notice given; and adjudged to be inadequate, would represent the amount of notice which the court deemed appropriate.- In this '......J ~ - 7 - case, the letter of April 4, 1978 was given to the grievor 80 days before June' 23, 1978. The grievor has had 80 days actual notice and an award of an additional ten days would have brought him in line with the requirement of Article .,~~ ~: :....... .' .~ - 8.0J., (c). ""' I am somewhat mystified by the references in- the ':.."?-- . majority award (page 13) to the e~fedt that the letters ~ referred to "were either offers of employment or extension of employment and can only be technically considered as also constituting notice of release from employment." If the letters meet the generally recognized requirements for a notice of release, and whether they do or do not meet the requirements is a technical question; if they do . meet the standard, even technically, as the majority award suggests, the College is enti~led to the benefit of that notice. In view of this statement I am at a loss to understand on what basis the majority are able to avoid . giving effect to the letters as meeting the requirements of Article 8.01 (c). In summary, I would have come to the conclusions which follow: 1. There is no requirement in the collective agreement for written notice of release from employement for -a sessional employee ina fixed term contract which has run its full term. - 8 - , * : 2. In the alternative, that if the 90-day written notice requirement was'applicable,- that the letters from the College constituted valid written notice. 3 i In the ~lternative, that if- the.extens.i6n . ! ofemp1oyrnent referred to in. the April 4,' .1978' letter vitiated theearl{er notice of release ~ that then the April 4, 1978 l~tter was a valid notice except with respect to length. To cure that d~ficiency, I would award the grievor 10 ~ ,days pay i~ lieu of notice which when added . - to the 80 days actual notice would have provided the grievor with the full 90 days '- written notice. '- - .,..... ..... Dated at Windsor this 31st day of January, 1979 1~}1v1-- " I v. . /2 { !/. 4.... '" ..i/j I J. H. McGivney, Q.C. '. \..-- -;;.. ...., . . . , Re: s~. Clair College and Ontario Public Service Employees Union (OPSEU) - Grievance of G.L. Minto In my opinion it is open to a board of arbitration . to find that where the notice required by article BOlC of the Collective Agreement in this matter has been improperly given or: in any way given in a defective manner, that such notice is no notice at all and that therefore it has 'no . effect on the employees status as an employee. . I find the provisi6ns of article BOle with respect to notice to be . mandatory,accordingly a failure by the college to comp~y ~Tith those provisions renders the release of the employee nugato!"y . I cannot agree that article 802A of the Collective Agreement in any way detracts from the~andatory effect, of article BOIC. In its O\oTn terms article 802A provides that an employee who is released during his probationary period cannot grieve that release. Nothing in the Collective Agreement restricts the right of the probationary employee to grieve th~ inadequacy of the notice given of his release. Consequently in my vie\." if the college does not terminate an employee during his probationary period as they have a right to do .and if such an employee is given no effective notice that he is to be released then he continues in the status of employee and \,'ould in my opinion have the right to Grieve claiming whatever benefits accrue to an employee. . . ~. - 2 - ,- , That argument was made by the union on behalf of the.grievor in the instant case. I would have Supported that argument. Nevertheless I have agreed with the , I , . chairmans disposition of this grievance in the circumstances of this case, but I do not wish my concurence ~o.be seen as . an agreement that ,in no circumstances can a board of arbitration find that a defective release has had the effect of maintaining the grievors status as an employee therefore entitling him to reinstatement and full compensation. . In the instant case as I read the evidence the grievor accepted the fact of his release. He did not, for example, present himself for work at the beginning af the next" . academic term as though he were still an employee. The '11 thrust of his case in these particular circumstances seems to be that he was entitled to compensation in the form of damages. Since the award has given him that I am prepared to concur in it but my concurence goes no further" than that. All of which is respectfully submitted. -- Christopher Trower 'Union Nominee -- ~ CT: j 9 I i . I IN THE MATTER OF AN ARBITRATION BET WEE N: THE ONTARIO COUNCIL OF REGENTS FOR COLLEGES OF APPLIED ARTS & TECHNOLOGY (FANSHAWE COLLEGE) (hereinafter called the "Employer" - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (hereinafter called the "Union" ) GRIEVANCE OF S. SAFRAN (hereinafter called the BOARD OF ARBITRATION: W. B. Rayner, Chairman J. H. McGivney, Q.C., College Nominee R. Cochrane, Union Nominee APPEARING FOR THE UNION: R. Nabi " G r i e v o r ~ ~ APPEARING FOR THE COLLEGE: C. Murray HEARINGS IN RELATION TO THIS MATTER WERE HELD IN LONDON, ONTARIO I ON 1 MAY AND 12 NOVEMBER, 1980 A WARD This grievance arises from the release of thegrievor on October the 5th, 1979. The grievor claims that she was a full time probationary employee at the time of her release and that she was not given the proper notice as required by Artic.le 8.01(c) of the Collecti Agreement. That article provides for at least 90 calendar days written notice when a probationary full time employee is released after the first five months of continuous or non-continuous accumulate employment. The grievor claims that since she was not given proper notice she has not been properly released and still remains an employee of the College. She therefore seeks back pay from the time of October the 5th, 1979 as well as a declaration to the effect that she still continues asan employee. 4 The College maintains that the grievor was not a full--time probationary employee at the time that she was released. The grievor was given two weeks notice and the College takes the position that that was the appropriate notice given to the grievor because of her status at. the time that the notice was given. There are really no facts in dispute. Both parties agree that the grievance is properly filed and is properly before the board. They both agree that the Board has jurisdiction to hear the grievance. 3 The grievor commenced employment at Fanshawe College on December 19th, 1977. She worked occasionally for the college. In 1978, in July, the grievor was offered and accepted three weeks of sessional employment. In September of 1978 the grievor received certain instructions from her c~ordinator, Mr. McGowan. In the first week of September the grievor taught . two days as a substitute teacher. Mr. McGowan then asked her to share a class because the class was too large. Hence, in the next week in September the grievor worked four days, The following week, the week of September 25th her part of the shared group became her class. Mr. McGowan gave her . this class and thereafter the grievor taught for three or four days a week with a substitute teacher taking the fifth day. This arrangement was unsatisfactory and McGowan asked the grievor to take the classon all possible days after that. The grievor worked a substantial number of weeks from October 1978 to October 1979 wherein her total days work were five and her hours worked were fifteen. These figures become important because of the provisions of the collective agreement. The parties filed a list of hours and days worked for each week by the grievor. The Board attaches that as an appendix to this award, 4 On or about December the 1st, 1978 the grievor entered into a verbal agreement with the Employer to teach three hours per day, twelve hours per week until March 31, 1979. In actual fact, for many of the weeks in that period, the grievor exceeded twelve hours per week. The parties agree that the period between December 1977 and September 11, 1978 is not in issue. At all material times the grievor was paid as a teaching master teaching in the adult education, division, Level II in English and Mathematics. The grievor did not however receive benefits under the Collective Agreement. After her termination, the grievor advised the Employer she did not consider herself discharged and requested placement in two vacant positions for which she was qualified. In response to this, the Employer indicated by a letter from the president of the College, Mr. Rawson, that the grievor was properly terminated. That letter is important with respect to the College's position and it reads as follows: "I have reviewed the facts surrounding your grievance dated 1979 10 17, and it is clear that ona number of occasions you worked in excess of the range of hours per week for partial-load teachers as outlined in the Academic Memorandum of Agreement. We therefore have addressed ourselves to what your status would have been if we had reviewed ahead of time the various teaching assignments you have actually conducted during the whole of your period of employment with the College. 5 It is our view that during the 6 months of July and November, 1978, and February, March, June and July, 1979, your employment would have been considered "full-time sessional" since during those months you taught in excess of the partial load limit for a period of more than 15 days in each of the months mentioned. We believe that "full-time sessional" is a reasonable classification for those 6 months in the light of Article 8.01 of the Collective Agreement, which indicates how an employee may accrue seniority when employed on a full~time, but non-continuous basis. During the remainder of your period of employment, you would have been classified as a.partial-load teacher. Since the College's normal practise is to pay full-time sessional teachers based on an annual salary rather than hourly rates/we will ensure the necessary financial adjustments are made to reflect the above conclusions. In addition, we will reimburse you at an hourly rate for those hours about which there is some discussion as to whether or not the work was properly authorized. The college considers the two week notice period appropriate in view of the fact that you would have been considered either as a sessional or partial-load employee." The parties agree that during the period when the Employer considered the grievor as a sessional employee, she was compensated as ifshe was a teaching master, a step on the salary grid except that she did not receive any of the benefits provided by the Collective Agreement. The griever, on cross'-examination, was questioned by the lo-:er's counsel . with respect to those weeks wnerein she worked less ;h-n five days, The griever had several different reasons why she did : - : t ;.: ork five days for most of those weeks. In some instances the r.~son was because a statutory holiday fell within the week. In instances the griever did not work because of illness or death -he family. In one instance she did not work because it was a 6 professional development day at the college. In other instances the grievor took time off for personal reasons including both extension of vacation and religious holiday. The grievor testified that she had no difficulty in getting time off when requested. However, during the month of September, 1979, the grievor was told by her co-ordinator that her hours were too high and that she was supposed to take off one day a week. Hence for the weeks in September of 1979 the grievor worked only 4. days per week. It should be remembered that the co-ordinator is a member of the bargaining unit. The grievor testified that she was paid monthly and that on occasion she had trouble rationalizing her pay with the hours worked. She indicated that her pay cheques were wrong at least twice and perhaps four times. However she said the normal pay cheque matched her work. Finally, the grievor indicated that her class was her responsibility. She did however indicate that she would teach one hour English and two hours Math to her class and then a second person would teach two hours English and one hour Math to the same class. Nevertheless, she was responsible for the progress and records of her students. She also planned her own curriculum, The Union argues that since October of 1978 the grievor employed as a full time teaching 7 , , Mr. Nabi indicated that there were six types of .employees who worked iri teaching capacities at the college. The first type of employee he classified as a part-time employee and that was an employee who worked six hours or less per week. That employee is excluded from the operation of the collective agreement by article 101 of the agreement, the recognition clause. The second type of employee according to -1r; Nabi I s breakdown was a sessional employee. That employee is also excluded under the recognition clause of the collective agreement. A sessional employee is defined in appendix three of the collective agreement, section l(a) as "a full-time employee appointed on a sessional basis for up to twelve full months of continuous or non- continuous accumulated employment in a 24 calendar month period." The third type of employee is a sessional probationary employee. Under the appendix just quoted a sessional employee who stays on for more than the 12 full months goes into the probationary stream. That result is set out in section l(c) of the appendix. The fourth class of employee is a full time probationary employee. Under the provisions of section 8.01 (a)a full time em-loyee is on probation until he has completed 2 years continuous er-ployment. Article 8,Ol(b) sets out the method of calculating that 8 period. It reads: "ARTICLE 8 -SENIORITY ~ 8.01 (b) Effective September I, 1976, the probationary period shall also consist of twenty-four (24) full months of non-continuous employment (in periods - of at least one (l) full month each) in a forth- eight (48) calendar month period. For this purpose, only the period after September I, 1975 shall be taken into account or credited. However, an employee' continuous service acquired in accordance with the provisions of the previous agreement dated the 17th day of September 1975, as at August 31, 1976 for the period ~ back to September 1, 1975 shall count as continuous employment or months of non-continuous accumulated employment for the purpose of this Section. For the purpose of this paragraph, effective September 1, 1976, a calendar month in which the employee completes fifteen (15) or more days worked shall be considered a "full month" The. fifth category of employee is a full-time employee described in section 3.03 (a) of the collective agreement.. That Article reads: "ARTICLE 3 -SALARIES 3.03 (a) Persons who teach thirteen hours or more will be salaried, the salary r.ange to be determined according to the proportion that the individual's part-time teaching load is to the average full-time teaching 10- of the department of the particular College concerned (This pro-rating of salary does not apply to any full- time teacher who for whatever reason may at some time have a reduced teaching duty of less than thirteen hours per week.) Effective September 1, 1977 pro-rata salary pay ment under this article will be discontinued and the salary scales as set out in Appendix I wi.ll aTpply to persons teaching fourteen (14) hours or more on a regular basis. Persons teaching over six {6) and u; to and including thirteen (13) hours on a regular bas: will be covered by paragraph (b) hereof and Appendix Mr. Nabi pointed out that under that provision it is possible for a full-time employee to work less than fourteen hours per week. ;: .::; The last type of employee is a partial load employee. That type of employee is described in Article 3.03 (b) of the Agreement. That Article reads: "3.03 (b). Persons who teach over six (6) and up to and including thirteen (13) hours per week on a regular basis shall be referred to as "partial-load" employees and shall not receive salary, vacations, holidays or fringe benefits (except for coverage of 9 Workmen's Compensation and liability insurance} under this Memorandum and Appendix I but shall be paid for the performance of each teaching hour at an hourly rate within the range of hourly rates set out in Appendix II and in accordance with the other provisions of Appendix II." The Union argues that the grievor is not a part-time enployee as she clearly worked more than six hours per week. There is no doubt that this is the case and indeed the College does not even suggest that the grievor was a part-time employee. The Union also argues that the grievor was not a sessional employee as her only appointment as a sessional teacher was for July of 1978. Mr. Nabi argued- that a sessional employee must be appointed by the College as a sessional er-ployee and that that was not done. Hence, the grievor could not be a sessional employee. Ho also argues that the Employer could r.c't a-oint the griever as a sessional employee retroactively as Mr. Ra-'son attempted to do in his letter. Although Mr. Nabi recognized the need for sessional employees, and recognized the fact that sessional employees could 1 o be appointed for more than one session, he denies any right of the 1 college to make that appointment retroactively. At this point it should be pointed out that schedule I of the College's Collective Bargaining Act 5.0. 1975, c. 74 section {viii} contemplates an appointment for more than one session. Mr. Nabi referred the Board to Article 12.02 of the Collective Agreement which provides in part that "if requested by the local Union, the rationale for a sessional appointment by the College shall be the subject of discussion." Obviously, the Union has some concern in protecting the integrity of the bargainin unit. This section indicates that concern. Mr. Nabi argues that if the college can make sessional appointments retroactively, 4 Article 12.02 would be rendered meaningless. Mr. Nabi argues that since the grievor is not a sessional employee she clearly is not a probationary sessional employee. He argues as well that the grievor cannot be considered a partial load employee, He indicates that for a considerable pen' of time the grievor worked weeks where her hours exceeded thi rteen. Indeed, according to his figures for the majority of the timethe grievor worked fifteen hours per week. This then, according to the Union's position, means that the grievorcan only be considered a full-tine cnployec. Mr. Nabi says that the grievor should be considet-d a full-time probationary 1 1 ~ l employee as she had, at the time of release, not yet completed the period of time set out in Article 8.01 for probation, The second major point raised by the Union is that the grievor, being a probationary full-time employee, was entitled to 90 days notice under Article 8.01 (c)., . Since she did not receive this notice she was still an employee. In other words, the giving of notice was a mandatory . condition precedent to a valid release. In support of that proposition, Mr. Nabi relies on Re CIP Containers 2 L.A.C. (2d) 308 (Brown). In that case the learned arbitrator referred to Re Valade and Eberlee,(1972) 1 O.R. 682. We will refer to this decision in more detail later. Finally, the Union contends that since the grievor was not properly released and still remains an employee, she is entitled to compensation from the time that the invalid release was made. Not unnaturally, the Employer disputes the Union position. Mrs. Murray argues that the Union's argument is based on a false premise, She says that there are no air-tight compartments in the Collective Agreement. She says that there are various '-:ays people can be employed and a person can enjoy a hybrid status. . In essence, this argument requires the Board to find that for the period 0- time when the grievor worked in excess of thirteen hours, per week, she was a sessional employee and for the period of time 1 2 ~ When she worked thirteen hours or less per week she was a partial load employee. In support of this position, Mrs. Murray breaks the period of employment down into three separate components. She says that from September 11th to December 30th the grievor wa- a r-,-rtial l6a- teacher. During that period of time sheworked six weeks over thirteen hours per week and six weeks under thirteen hours per week. The second period of time is between December 4th and Marc1- 31st, 1979. Again, the teacher was a partial load teacher accord ing to Mrs, Murray. By agreement, the grievor agreed to provide twelve hours per week. During that period of time the grievor in actual fact worked seven weeks under thirteen hours and ten weeks over thirteen hours. - , The final period of time occurs after March 31st. There Mrs. Murray says that a day-to-day arrangement was in effect. Mrs. Murray indicates that there can be more than one sessionfor a sessional teacher. This is contemplated by the provisions of the Act referred to earlier. Alternatively, the Employer says that if it is necessary to label the irievor, she is best labelled as a partial load teachc -rs. Murray says that the griever, on a regular basis, worked 1 3 between six and thirteen hours. In essence, the Employer says that the grievor did not work sufficiently over thirteen hours per week, to say that on a regular basis, she was working more than as a partial load teacher. According to Mrs. Murray's figures, the grievor worked somewhere between 56 and 57 percent of her time at fifteen hours per week or more. Using the test enunciated by the Labour Relations Board in Re Sydenham Hospital, the grievor failed to establish that' she worked the 5/7th ratio in the category as set out in that decision. Mrs. Murray also indicates that all other indcia of the relationship indicate a partial load employee. The grievor did not receive benefits of the full-time employees. The Collective Agreement prevents partial load employees from receivinq those benefits. The grievor had a very flexible relationship with respect to time off and vacations. Finally, the Employer argues that even if the Union is correct in all its submissions, the proper remedy to be given to the grievor is damages for failure to give the.90 days notice. She is not, however, to be reinstated. In essence, the College is saying that Article 8.01 (c) of the Collective Agreement isnot a true mandatory condition precedent to a proper release. If it has been breached, the proper remedy lies in datmages in lieu 0- notice. tho College says tnat if the tffiion is correct in all of its submissions, including the invalidity of the release the Board should not award damages until argument and evidence be led on the quantum of damage, as there will be some difficulty in _ calculating damages and seniority. Indeed, both parties asked the Board to remain seized of this issue if the need arises and, accordingly, we propose to say no more about it at this stage of the award, We are of the view that the grievor cannot be considered to be a partial load employee within the meaning of Article 3;03 (b) as she did not usually teach between six and thirteen hours .per week, The evidence is that the grievor on a regular basis worked more than thirteen hour per week. We are also of the view that the grievor is n?t a sessional employee as set for in the appendix to the Collective Agreement, We do not feel that the College can retroactively appoint a person to the sessional status, in view of the particula provisions of the Collective Agreement relied upon by the Union, i.e., Article 12. Moreover, the Board is not convinced that an employee should move from one category to another on a weekly basis as suggested by Mrs. Murray. Rather, we are satisfied that the grievor was a full-tIa- probationa-' employee within the meaning of the Collective Agreement. It is also clear that the grievor wa a full-time probationary employee as suggested by the Union, under the provisions of Article 8.01 (a). The issue that now remains before the Board is whether the grievor 1 4 1 5 retains that status because of the improper notification given to her by the College. The Union takes the position that the grievor remains an employee because the proper notification period as set out in Article 8.01(c) has not been given. The-Union says this is a true condition precedent to the grievor's termination, and since this condition precedent has not been met, the termination is ineffective. The Union relies on on Re CIP Containers 2 L.A.C. (2d) 308 (Brown). In that case the collective agreement required the company to state in writing the reason for the discharge. That requirement was not met and the Board concluded that that require ment was a mandatory requirement, and failure to meet it rendered the discharge nugatory. In so doing, the Board relied on Re Valade and Eberlee, [1972] 1 O.R. 682. Again, in that case, the court concluded that failure to give reasons for the discharge as re quired. by statute, rendered the discharge invalid. In our view, both of those cases are easily distinguishable zrom the present case. The purpose of giving the reason for tWe discharge is to permit the employee to determine whether and how be or sh-- should contest the discharge. In this particular case, what is compl-ircd about is the lcngth of notice. The purpose 0: any notice provision with rospoct to tho termination of 1 6 employment is to provide the employee with some time in order to ( locate alternaLe employment. If the notice period is not given, the normal course of events in any civil action is to award damages. Similarly, in the present case, an award of damages would make the grievor whole. The breach of the Collective Agreement is that the Employer did not give the proper period of notice and can result only in an award of damages. That award adequately ccmpensates the grievor. Mr. Nabi also- referred the Board to another decision between the parties where the question was raised at least tangential: However, we are not of the opinion that that case requires a conclusion that failure to give notice under ;-rticle 8.01 (c) renders the discharge invalid. 4 The Union also relied on section 65 of the College's Collective Bargaining Act, 1975. That section provides in part that "for the purposes of.this Act, no person shall be deemed to have ceased to be an employee ... or by reason only of his being dismissed by his employer contrary to this Act or to a collective agreement". The-Union says that the grievor was dismissed contrary to the provisions of Article 8.01 (c) and hence, because of sectior 65 of the Act, still remains an employee. Hc--:ever, that argu-ent overlooks the opening words of the section) "for the purposes of this Act." If an employee is improperly dismissed, the employee still remains an. employee under Section 65 for the purposes of the Act. It is interesting to note that the Act contains several 1 7 provisions which amount to unfair labour practices under the Ontario Labour Relations Act. It is obvious that the intention of Section 65 is to maintain the employer/employee relationship in order that the employee can maintain his rights under the Act. However, the section does not require that relationship be maintained in order that the employee maintain any rights under the collective agreement. This section is limited in its operation by its opening words "for the purposes of this Act." Since we are of the view that the employer did not give proper notice under Article 8.01 (c), but since we are of the view that that giving of notice is not a mandatory condition precedent to the termination of the grievor, we are of the view that the Union is not entitled to a declaration that the grievor be rein stated in her job and be paid for the entire period from the date of termination. Rather, what the grievor is entitled to is ninety days pay in lieu of notice less the adjustment for the two-week written notice previously provided to her by the College. This award places the grievor in the same position she would have been in if the Employer had, in fact, complied with the notice provisions of the Collective Agreement. In that regard, the award fulfills the functions of the Collective Agreement and the most important function of any award ,that is, to place thc injured party -n the same position that that party would have been in if the Agreement had been properly carried out. 1 8 As requested by the College particularly, and the Union in general, the Board will remain seized of the matter in case the parties have any difficulty in working out the precise amount of money owing to the grievor. DATED at London, Ontario, this I concur/~-5eee~. I concur/&&-e.. LI day of-4. . t7- .AA.o. * .A- II J~ ~f ~ , ,3' ( ], H. McGivney, Q,C" College Nominee " R. Cochrane, Union Nominee A 1 ~ r-~ ,-"11 , ~ ("'" -, l: .J c ., ==::i Cl\:~4 , \~ b . hltp://library,hicks,com/cgi-binllibrary/geUibrary _ocr_lex I?TITLE." IN THE MATTER OF AN ARBITRATION BETWEEN: DURHAM COLLEGE OF APPLIED ARTS AND TECHNOLOGY AND ONTARIO PUBLIC SERVICE EMPLOYEES' UNION AND IN THE MATTER OF THE GRIEVANCE OF R. McINTYRE BOARD OF ARBITRATION: JF.W. Weatherill, Chairman T. Traves, Union Nominee W. Shuttleworth, Employer Nominee A hearing in this matter was held at Toronto on October 6, 1982, R.J. Mazar for the grievor R.R. Dunsmore for the employer AWARD In this grievance, dated June 18, 1982, the grievor protests her dismissal from employment with the College, The employer raised two objections to the arbitrability of this matter, and these were fully heard and argued at the hearing, The matter was then adjourned, and we now make our determination on the preliminary questions. The more substantial objection raised by the employer is that the matter is not arbitrable because the grievor's employment was terminated while she was still a probationary employee anq that, under the terms of the collective agreement, a grievance on the merits of such termination is not arbitrable, It is acknowledged that the grievor was, at the time she was advised of the termination of her employment, a probationary employee. Having previously been employed by the college on a sessional basis she was advised, by letter dated June 15, 1981, of her appointment as a full time Teaching Master. She was given one year's credit toward the probationary period which, under article 8.01(a) (i) of the collective agreement, is of two years' duration. In the grievor's case, it is agreed that she would have become a regular full-time employee with full seniority rights on August 24, 1982, had her employment not been terminated. -2~ In article 8.01(c) of the collective agreement it is provided that, in cases of orobationary employees having more than five 1 'of 8 03/12/2007 2: 17 PM ca~'5{J4 http://library,hicks,comlcgi-binllibrary/get_library _ocr_lex I?TITLE", months' accumulated employment, such employees may be released upon at least ninety calendar days' written notice. The written notice given the grievor fell short of that, by a few days, While the grievor might have a valid claim for payment in respect of the required period of notice (and such claim would be arbitrable), the giving of notice is not, in our view, a condition of the validity of the discharge itself, provided, of course, that the notice be given during the probationary period, as was the case here. In the instant case, the grievor's employment with the College did in fact come to an end in July, 1982, while she was still a probationary employee. Following the notice she was given, she had no newly assigned duties, although she may have been completing some of the year's work, and completing arrangements relating to the end of her employment, Her last day at work appears from the evidence to have been June 25, and about mid-July she turned in her keys and received a cheque in final payment of salary and other benefits, apparently for the period ending August 31, 1982. The fact that the grievor may have received payment, or would be entitled to payment in lieu or partially in lieu of notice for a period ending -3- a few days after the date when her probation would have ended dges not alter the fact, as we find it to be in this case, of the termination of the grievor's employment within the probationary period, and when the employer was entitled to release her, As we have indicated, any grievance relating to the sufficiency of such payment would be arbitrable, Article 8.01(c) of the collective agreement provides, as we have noted, that an employee in the grievor's position "n1ay be released" during the probationary period. The employer did release the grievor during her probationary period, as we have found. Employees so released do not, under this collective agreement, have a right of grievance, nor a right to proceed to arbitration. That proposition expresses what is set out clearly in the following articles of the agreement: 8.02(a) It being understood that the release of an employee during the probationary period shall not be the subject of a grievance under the Grievance Procedure, an employee who has completed his probationary period and is discharged for cause may lodge a grievance in the manner and to the extent provided in the Grievance Procedure. 11.06 Dismissal It being understood that the dismissal of an employee during the probationary period shall not be the subject of a grievance, an employee who has completed his probationary period may lodge a grievance in the manner set out in Sections 11.07 and 11.08. -4- 2 ui.8 03112/20072: 17 PM ca~4 hup://library ,hicks,com/cgi-bin/library/geUibrary _ocr_lex I?TITLE,.. 11,07 An employee who claims he has been dismissed without cause shall, within twenty (20) days of the date he is advised in writing of his dismissal, present his grievance in writing to the President commencing at Step No. 2 and the President shall convene a meeting and give the grievor and the Union steward his decision in accordance with the provisions of step 1-0. 2 of Section 11,03, 11.~3 (in part) In the event any difference arising from the interpretation, application, administration or alleged contravention of the Agreement has not been satisfactorily settled under the foregoing Grievance Procedure, the matter shall then, by notice in writii-g given to the other party within fifteen (15) days of the date 6f receipt by the gri-vor of the decision of the College official at Step No.2, be referred to arbitration as here inafterprovided, And reference may also be made to article 11,.o4(d): (d) The arbitration board shall not be authorized to alter, modify or amend any part of the terms of this Agreement nor to make any decision inconsistent therewith nor to deal with any matter that is not a proper matter for grievance under this Agreement; While it is clear that employees having seniority may not be dismissed without just cause, it is equally clear that under this collective agreement, probationary employees may be released without the employer being required to show just. cause for that action, That is the agreement the parties have made, and similar provisions appear in the vast majority of collective agreements, -5- While a probationary employee would have the same access as any other to the grievance and arbitration procedure in respect of differences arising from the interpretation, application, administration or alleged violation of the collective agreement, the right to have such differences determined is, it should be emphasized, a right to have them determined in accordance with the provisions of the collective agreement. Having regard to the facts of the instant case as we have found them to be, and to the provisions of the collective agreement by which we must determine the matter, it is our conclusion that the action of the employer in terminating the grievor's employment as it did was an action which it was open to the employer to take, and which was not in violation of the collective agreement, Whether or not the grievor was dismissed for just cause is not an issue which is arbitrable under the collective agreement before us. It was argued that the provisions of the collective agreement in this respect were invalid, and that the grievor would be entitled to proceed to arbitration on the issue of just cause by virtue of what is now section 46(1) of The Colleges Collective Bargaining Act, That section is as follows: -6- 46(1) Every agreement shall provide for the ) OJ'S 03/12/20072:17 PM ca~_~4 http://library,hicks,com/cgi-bin/library/geUibrary _ocr _lext?TITLE", final and binding settlement by arbitration of all differences between an employer and the employee organization arising from the inter pretation, application, administ~ation or alleged contravention of the agreement including any question as to whether a matter is arbitrable. It is clear to us that that provision does not have the effect suggested. It is a general arbitration provision, and gives effect to a legislative policy with respect to the determination of disputes arising under collective a-ree-. ments, which has been in effect for many years. While The Colleges Collective Bargaining Act is relatively new, a substantially identical provision appears in what is now section 44 of The Labour Relations Act, and similar provisions are in effect in much of the lecislation relating to collective bargaining and collective agreements in this province and in this country, and involving both the public and private sectors, Such provisions (and this is surely the case with The Colleges Collective Bargaining Act as with The Labour Relations Act), call for the arbitration (failing resolution by some internal procedure), of differences "arising from the interpretation, application, administration or alleged contravention" (to quote the collective agreement, which embodies the requirement of the statute), of the collective agreement. That is a general arbitration provision, and is the basis for -7- arbitral determination of a range of issues as wide as those dealt with by the collective agreement, It does not have the effect of altering any 0- the substantive ]rovisionsof a collective agreement, and in particular it does not have the effect of conferring any form of tenure (however limited) on probationary employees. It is true that an arbitrator or arbitration board may be called on, in a proper case, to characterize an action taken with respect to an employee. Thus, under some legislation relating to public employees, the question may arise whether or not an employee whose em-Ioyment has been terminated was ,3 released" or "dis missed". An arbitrator may have to characterize the action taken as one or the other, as in the Jacmain case (1977), 81 D,L,R. (3rd) 1 (S.C,C4. In the more recent Leeming case (1981), 118 D,L,R. (3rd) 202 (S.C.C.) it was held, notwithstanding the adjudicator's finding that the dismissal involved was a disciplinary action, that under the relevant provisions of the collective agreement there was no requirement for the employer to show just cause for the discharge of a probationary employee. The legislation pursuant to which the collective agreement involved in that case -8- was made contains not only provision for arbitration in respect of the interpretation or a-lication of the provisions of the collective agreement, but also provision for the arbitration of questions of disciplinary action. The case is strong authority for the conclusion that a general legislative requirement that collective agreements contain an arbitration clause does not affect the substan tive content of collective agreements themselves nor, particularly, invalidate collective agreement provisions as to the non-arbitrability of questions of cause for the discharge of probationary employees, ~ oL~8 03/12/2007 2: 17 PM ca564 ~ h tlp:/ /library ,hicks,com/cgi-bin/library/ get_library __ocr_lex t?TITLE." The Leeming case is a strong authority, although it is a decision made with respect to somewhat different legisla tion than that relating to this case. The Toronto !il':dro case, (1980) 111 D.L,R, (3rd) 693 (ant, Div, Ct,) i aff'd (1980), 30 O.R, 92d) 64 (ant. C,A.), is not, with respect, authority for anything more than the Divisional Court's view that the arbitrator in that case had interpreted the collective agreement before him in a way that its terms could reasonably bear. While the majority of the Divisional Court appear to have approved of that interpretation, the members of the Court of Appeal withheld such approbation, and it is clear frox- the remarks made by the Supreme Court of Canada in refusing leave to appeal in that case that what was involved was the interpretation of the terms of -9- a particular collective agreement --an agreement somewhat different from the one before us. The view that legis lative provisions such as section 44 of The L-bour Relations Act, or section 46 of The Colleges Collective Bargaining Act invalidate collective agreement 'provisions such as those permitting the dismissal of probationary employees without a showing of just cause, is simply not supported by the cases. This board is indebted to Professor Traves, one of its members, for drawing to our attention the case-note of Professor Bendel dealing with the Toronto Hydro case, (1981) 59 Can. Bar Rev. 396. With respect, we are unable to accept either the conclusions there set out as to the effect of the decision in that case, or the rather conten tious "policy considerations" urged in its favour. The question has recently been reviewed in the Peel Board of Educationcase (1982), 4 L.A.C. (3d) 409 (Beck), (the decision being published after the hearing in this matter was held, and indeed after the bulk of the reasons herein were drafted), and we are, with respect, in agreement with the views there set out. Reference may also be made (and again we are ind&bted to Professor Traves for drawing it to our attention). to the recent Larry Elliston case, 11982) 2 Can LLBR 241, where the Canada Labour Relations Board adopts a view similar to that of the majority of the Divisional Court in -w -u --V -10- the Toronto Hydro case. The material provisions of The Canada Labour Code appear to be quite analogous to those of The Colleges Collective Bargaining Act. With respect, we are unable to accept the Board's reasoning, which would appear to confuse access to arbitration for deter mination of arbitrability and for decision on differences relating to the interpretation of a collective agreement (which the legislation has always required), with the quite different '0. d 03/12/20072: 17 PM ca~4 http://library,hicks,coni/cgi-bin/library/geUibrary _ ocr_lex I?TlTLE", policy (not embodied in any of the legis lation), that any "differences" may be determined by arbitrators, For the reasons given earlier in this award, it is our view that the material provisions of the collective agreement are not contrary to any applicable legislation, and that the effect of those provisions in the circumstances of this case is that the grievance, raising as it does the issue of just cause of' the grievor's dismissal, is not arbitrable, The second objection raised by counsel for the employer related to time limits. In view of the decision we have reached with respect to the first objection, we do not find it necessary to deal with that question at this time. To the extent that the grievance involves any claim for 44 St- -11- compensation in respect of payment in lieu of notice, it is properly before us, and such matter may be brought on for hearing provided a request is made to that effect within thirty days of the date of this award. Failing such request, the grievance is dismissed. DATED AT TORONTO, this 6th day of December, 1982. '--L Ch a i n'na n '-:1 concur" T. Traves (addendum Union Noininee attached) "I concur" W. Shuttleworth Employer Nominee ADDENDU- OPSEU (R. Nclntyre) and D--az- College While I concur with the aw~rd in this case, I wish to explain the basis of my 6 or8 03/12120072:17 PM :a~4 http://library ,hicks,com/cgi-binllibrary/geUibrary _ ocr_lex I'!TlTLE... decision in slightly different terms than those set out by the rest of the arbitration board. contrary to the other members of the board, I do not believe that the Leemine case (1%1) 118 D. L. R. (3rd) 202 (S.C.C,) offers much guidance in this case, The New Brunswick legislation differs significantly from that prevailing in Ontario and hence the Supreme court decision does not touch the issues before us in this case, I find the review of issues raised by the Leeming case offered at length in ReDominion Stores and Depar-nent Store Union, 30 LAC (2d) at pp. 200-202 to be convincing. I further disagree with the view th~t the principles first ennunciated in the Toronto Hydro case (1980) 111 D. L. R, (3rd) 693 (Orzt. Div. Ct.); aff'd (1980), 30 O. R. (92d) 64 (Ont. C. A,) and subsequently elaborated at length in Elliston and Steelworkers (1982) 2 Can, L,R.B.R. 241 should not prevail in these "probationary dismissal" arievances if the facts are substantially the same. However, in this case the facts are not substantially the same as those raised in the Toronto Hydro case and for this reason I cannot be guided by that decision, Toronto Hydro stands for the principle that when a substantive right is conferred upon all employees it cannot subsequently be withdrawn from a small group of employees in the same unit because that would violate the provision in the Labour Relations Act (and the colleges Collective Bargaining Act, section 46(1)) that "all differences" shall be subject to settlement by binding arbitration, The crucial difference between Toronto Hydro and this case is that in the former the substantive right that "no employee shall be disciplined or discharged without just and sufficient cause" (Art 55.01 of the Collective Agreement) initially stands free of any invidious distinction between the rights of permanent and probationary employees, In this case, however, no such substantive right is ever conveyed' through the Collective Agreement unon alL employees, Articles 8.02 and 11.06 which'bear on the issue of dismissal without cause do not provide an undifferentiated right upon all employees to rleve dis--issals. Indeed, in both articles, the very sentence which affirms the right of permanent employees to /2 2. grieve dismissals (and hence creates a "difference" under the meaning of Section 46(1- ofthe Colleges Collective 3arca""n2zg Act) at the same time denies this right to probationary employees ano r_ence fails to create a similar difference Accordingly this case must be distinguished factually frow the Toronto Hydro case on the grounds that no substantive right was initially conferred upon a~ the employees and hence no substantive right could subsequently be taken away from some of the employees, viz, probationers, in violation of Section 46(1) of the Act.. It might well be argued that the dismissal of a probationary employee, given the language of this Collective Agreement, could be deemed to be a. rbi trable on other grounds / see Elissa Blame and Algonquin College, 1982 (Bastedo) /but no claim was made that the facts in this case warranted such a finding. Tom Traves union Nominee , ord 03/12/2007 2: 17 PM ca564 E:3 ~ ::; l o. <3 htlp:l/library .hicks,com/cgi-bin/library/geUibrary _ ocr_lex t?TITLE", -I 4, -I -u u u 30/11/32 03/12/20072:]7 PM - 0 '" -:'f " ~, ;a662 ~ CDS htlp:/ /library,hicks,com/cgi-bin/library/gcl__library _ocr _ tcxl?TITLE,., IN THE MATTER OF AN ARBITRATION HEARING HELD IN TORONTO, ONTARIO, ON THE 7TH DAY OF FEBRUARY, 1985 BETWEEN: THE BOARD OF GOVERNORS OF SHERIDAN COLLEGE OF APPLIED ARTS AND TECHNOLOGY (College) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (Union) AND IN THE MATTER OF THE GRIEVANCE OF RONALD BRACKENRIDGE BOARD OF ARBITRATION P. JOHN BRUNNER CHAIRMAN s(J-/ JERRY COURTNEY COLLEGE NOMINEE SUSAN D. KAUFMAN UNION NOMINEE APPEARANCES v~ ~ -zA,\.../ ~ 03/12/20072:09 PM :a~2 http://library,hicks,corn/cgi-bin/library/get_library _ocr_lex I?TITLE.., FOR THE COLLEGE T, F. STORIE, Q.C, FOR THE UNION LINDA ROTHSTEIN -2- SUPPLEMENTARY AWARD In the award of the Board of Arbitration dated November 22, 1984, a declaration was issued that Ronald Brackenridge had, by May 20, 1983, completed the first year of his probationary period and thereafter was covered by the provisions of the Collective Agreement. No evidence had been led at the prior hearing as to Brackenridge's status on or after May 20, 1983, and that matter had not been the subject of argument by Counsel. For this reason we retained jurisdiction on this question should an issue arise with respect thereto between the parties. The Board in addi tion stated that there had been no evidence as to whether a Notice of Release was at some point after May 20, 1983, given by the College to the grievor and as to how and in what manner his employment, as alleged in the formal grievance, had been improperly terminated. The Board by its award also held that the formal grievance dated October 14, 1983, was filed outside the mandatory time limit prescribed by the Collective Agreement, However, as the grievance was a "continuing one" the declaration could neverthe less be issued, but any consequential relief would be restricted to a period commencing twenty days immediately preceeding September 12, 1983, the date on which the grievor's complaint was first made, Jurisdiction as to the matter of consequential relief was reserved. -3- Subsequent to the publication of the award, Counsel for the Union requested that the Board reconvene its hearings as an issue had arisen as to the grievor's status. As a result, on February 7, 1985, a further hearing was held and evidence was led and submissions made by both parties. 2 .of]5 03/12/20072:09 PM ca662 ~ = -" " 3 1:>.15 hllp://library ,hicks,com/cgi-bin/library/geUibrary _ocr _ text?TITLE", There is very little evidence as to Brackenridge's employ ment status after the end of phase 3 of the W.I,T,T. program on May 20, 1983. He himself testified that there was no "under standing" with the College that he would be involved with phase 4, if indeed there was to be a continuation of the program in September, 1983, He said that he "assumed" that there would be a place for him in that event. The Director of Administration of Skills and Development/- Apprenticeship Division, Karam Daljit, stated that no decision as to whether there was to be a phase 4 was made until sometime during the month of August. On June 16, 1983, Brackenridge taught two hours of classes but it is not very clear as to what the subject was. He worked a further hour later that month but that was the extent of his assignment by the College after May 20, 1983, -4- The inference we draw from the evidence is that his employment continued until at least the end of the month of June, 1983, Thereafter, the evidence becomes hazy. On August 18, 1983, the Queen Elizabeth Campus Administra tor, Joyce Reid, issued a Memorandum (Exhibit 11) at the grievor' s request in order to assist him in an application that he made to the University of Toronto for employment as a supply teacher. It is not clear whether Brackenridge at this point was seeking permanent or part time employment. The letter however is couched in language which would indicate that, at least in the writer's opinion, his employment had ended, On August 23, 1983, the College posted a Notice of Opening for a Teaching Master 03/12/2007 2:09 PM aM2 http://library,hicks,com/cgi-bin/library/geUibrary_ocr_ lex I?TITLE,.. for what by now had been decided would be phase 4 of the W. I . T. T. program. The qualif ications for the position however were materially different. from what they had been during phase 3. It was conceeded by Brackenridge that he did not meet these qualifications in several respects. Interested "internal" applicants were instructed to forward their resume to the Director of Human Relations by August 30, 1983. There is no evidence as to whether the grievor did so or whether "external" applicants were also considered, Nevertheless we were told that the grievor did apply for the position and was interviewed on September I, 1983. On September 9, 1983, he was informed that he -5- had not been selected for the position. There is some evidence that on September I, 1983, he was asked whether he would be interested in a "partia~ load" assignment in the future but the matter was never pursued. In point of fact, one Cutmore was appointed not as a full time but as a sessional employee to. fill the position that was posted on August 23, 1983, On Septembe r 12, October 14, 1983, 1983, Brackenridge made his "complaint" was reduced to a formal grievance. which subsequently on It is clear from the evidence that the grievor was never expressly told at any time prior to October 14, 1983, that he was no longer a College employee. The reason for this is probably that the College viewed his employment as having terminated on May 20, 1983, when phase 3 of the program ended and considered the work that he performed in June, 1983, as casual work. On the other hand, it is equally plain that Brackenridge no longer viewed himself as an employee by October 14, 1983. The formal grievance acknowledges that "I have since been improperly terminated." It is conceeded that he did not teach or perform any other work for the college since the month of June, 1983, In August, one of the Campus Administrators in the previously referred to -6- Memorandum, of which he received a copy, spoke of him in terms of la-l"iS 03/12/20072:09 PM 1662 ,~ http://library,hicks,com/cgi-bin/library/gel_library_ OCf_ Ie having been an employee in the past. He himself submitted an applica tion for the posted position of Teaching Master for phase 4 of the W.I.T.T~ program but was turned down on the ground that he was not qualified. Some three days later, he made a complaint with respect to his treatment by the College and then on October 14, 1983, submitted a grievance in whi ch he acknowledged that his employment had been terminated. In our view, he was certainly aware by September 12, 1983, that the College was no longer treating him as an employee. With the greatest respect for those who contend otherwise, there can be little doubt that by that date, neither he nor the College considered that an employment relationship between them existed and it was common ground that his status as an employee had ended. We do not think that there is anything in the Collective Agreement nor indeed in the general law, which mandates that the College can only terminate the employment of a probationary employee by the use of express words, whether oral or in writing. There can be little doubt if the only reasonable inference from all of the circumstances is that neither the Employer nor the employee consider themselves as having a subsisting employment relationship then by that date, the employment may be said to have terminated, In our view, the express conduc t of the College over the period of time we have described up until. September 12, -7- 1983, is consistent only with the view that Brackenridge's employment had been terminated, It was made clear to him that there was no further work for him at this time. The position that he had held during the first three phases of the W. I. T. T. program had been awarded to another. His application for that position had been turned down and he was asked whether he would be interested in a "partial" load" ass ignmen t in the future, to which he did not respond, In these circumstances, the only reasonable conclusion to which one can come, is that his employment had terminated by September 12, 1983. As we have stated in our award, the grievor was by May 20, 1983, an employee who had completed the first year of his probationary period and thereafter was covered by the provisions of the Collective Agreement, In accordance with paragraph l(c) of Appendix III, his probationary period continued for a further period of twelve months. Accordingly, it is clear that on September 12, 1983, the date we find that his employment was terminated, he was an employee within his probationary period, At this juncture it becomes relevant to consider Articles 8.01(c), 8.02 and 11.06 of the Collective Agreement which we reproduce in full. ; o:;-ci 5 03/12/20072:09 PM ;a~~2 http://library,hicks,com/cgi-bin/library/get_library _ocr _ text?TITLE", 'L :; "Article 8 -Seniorit~ 8,Ol(c) During the probationary period an employee will be informed in writing of his progress at intervals of four (4) months continuous employment or four (4) months of accumu -8- lated non-continuous employment and a copy given to him. Also, it is understood that an employee may be released during the first five (5) months of continuous or non-contin uous accumulated employment following the commencement date of his employment upon at least thirty (30) calendar days' written notice and during the remainder of his probationary period upon at least ninety (90) calendar days' written notice. If requested by the employee, the reason for such release will be given in writing. 8.02(a) It being understood that the release of an employee during the probationary period shall not be the subject of a grievance under the Grievance Procedure, an employee who has completed his probationary period and is discharged for cause may lodge a grievance in the manner and to the extent provided in the Grievance Procedure. 8.02(b) An employee being discharged who has completed his probationary period shall be notified in writing by the College President or the persons(s) he designates for that purpose, When the reasons for discharge of the employee are not such as to warrant immediate discharge, the College will give ninety (90) calendar days' written notification. 11.06 Dismissal It being understood that the dismissal of an employee during the probationary period shall not be the subject of a grievance, an employee who has completed his probationary period may lodge a grievance in the manner set out in Sections 11.07 and 11.08." 66fl5 03/1212007 2:09 PM ca662 E~ h lip ://Ii brary ,hicks,cOlli/cgi-bin/library/ get_library_ocr _lex t?TlTLE.., It is clear from Article 8.02(a) that the release of an employee during his probat ionary period or his dismi ssal (Article 11.06) cannot be the subject of a grievance and is not a matter that is arbitrable. Only an employee who has completed this period can challenge his "discharge" or "dismissal-" through the Grievance Procedure and has the substantive right not to be -9 - dismissed except for cause. The Collective Agreement in question has carefully drawn a clear line between the termination of an employee during his probationary period and thereafter, The former is referred to as " a release" or "dismissal" while the latter has been termed as "discharge" or "dismissal" , The predecessor to Article 8 .01 (c) was considered by the Divisional Court of the High Court of Justice for Ontario on June 6, 1975, in Re Civil Service Association of Ontario Inc, and Ontario Council of Regents of Colleges of Applied Arts and Technology, It is not necessary to deal with the facts of that case, but it is sufficient to say that Mr. Justice Zuber as he then was, speaking for the Court, defined the word "release" as meaning "the total cessation of the relationship of employer and employee", These provisions of the Collective Agreement which have not materially altered over progressive amendments to the Collective Agreement were also the subject of consideration in Re Ontario Council of Regents of Colleges of Applied Arts and Technology and Civil Service Association of Ontario Inc. (Seneca College), (1976) 13 L.A.C. (2d) 82 (Weatherill), In that case, the Board applied the definit ion of the term "release" ennunci ated by the Divisional Court and r (,--;-'"15 03/12/20072:09 PM :a662 F~ ~ hltp://library ,hicks,com/cgi-bin/library/gel_library _ocr_lex I?TITLE.., .:... -- expressed agreement with it. Insofar as any difference or distinction between the words -10 - II release "or "dismissal" was concerned, the majority of the Board put the matter in this way at page 84: "In the instant case, we think it is clear that what the employer sought to do was to 'release' the grievor, pursuant to art, 8.02(a). Certainly it may be said to have 'dismissed' her within the meaning of art.9.06. The two terms are not quite synonymous: 'dismissal' has, we think, a somewhat broader connotation, and would likely include 'release'. Where, as in this collective agreement however, the two terms are used with reference to a termination of employment during a probationary period, we think there is no substantial significance in the difference of terminology as between art.8.02(a) and art.9.06. The substance of the agreement is clear: where the employer terminates the employment of an employee during his probationary period, that termination 'shall not be the subject of a grievance'. It is not for this board to consider the wisdom or otherwise of the employer's act, nor to conclude that the employer may have had ample opportunity to assess the employee even before the expiry of the period. Our jurisdiction in the matter turns on our finding whether or not the grievor was 'released' or 'dismissed' during her probationary period, We make this determination in the exercise of our jurisdiction to determine 'whether the matter is arbitrable', pursuant to art. 9.04(a) of the collective agreement. " The Board went on to state at page 85: "In our view, where art. 8.01(a) of the collective agreement provides that the employer may release a probationary employee upon notice, it does not make the giving of such notice a necessary condition precedent to the release. Failure to give such notice would be a violation of the agreement for which an appropriate remedy (such as payment in lieu of notice) could be granted. It is our view, however, that it would take express language in the collective agreement to establish the giving of notice as a necessary condition precedent to the release of probationary employees, and to effectively alter the express provision of the agreement that the probationary period 'shall be of two years' duration'. Such language does not appear in this collective agreement. " ~ oTiS 03/]2/2007 2 :09 PM ~~2 http://library ,hicks,com/cgi-bin/library/geUibrary _ocr_lex I?TITLE.., -11 - It follows from the reasoning of the Divisional Court and of the award in the Seneca College case, as well as from the clear words of the Collec ti ve Agreement, that the termination of employment of Brackenridge which we have found to have taken place on September 12, 1983, could not be made the subject of a grievance and was not arbitrable, The termination of his employment on the date in question amounted to a "release "as there. was a total cessation of the relationship of employer /- employee and his only right under Article 8.01 (c) was that he be given at least ninety days' written notice. Failure to give such notice was not a condition precedent to his "release" but was a violation of the collective agreement for which in our opinion the appropriate remedy is to order that the College pay him ninety days' wages, in lieu of the notice that should have been given, at the applicable rate, (See the Seneca College case and The Ontario Council of Regents for Colleges of Applied Arts and Technology (St. Clair College) and Ontario Public Service Employees Union (Grievance of G. L. Minto) dated February 20, 1979 (Brandt). There were a number of other arguments that were addressed at the hearing on February 7, 1985, but in view of the result we have reached it is not necessary to deal with them. -12 - )01: i5 03/12/2007 2:09PM :a9J:i2 ,0 t>1'lS hllp://library ,hicks,com/cgi-bin/library/gel_library__ ocr_lex I?TITLE", The above is sufficient enough to finally dispose of this grievance subject to retaining jurisdiction over the matter in the event any difficulties arise in the implementation of our Supplementary Award. DATED at Toronto this 8th day of May, 1985, P.JOHN BRUNNER, CHAIRMAN JERRY COURTNEY, COLLEGE NOMINEE SUSAN D, KAUFMAN, UNION NOMINEE ADDENDUM TO SUPPLEMENTAY AWARD OF APRIL 1985 IT WOULD BE REASONABLE TO AGREE THAT NINETY DAY'S (90) WAGES IN LIEU OF NOTICE IS APPROPRIATE IF A VIOLATION AS DESCRIBED TOOK PLACE. 03/12/20072:09 PM cao62 ~~ http://library.hicks,coni/cgi-bin/library/geUibrary_ ocr_lex l?TITLE.., I CANNOT CONCUR, HOWEVER, BECAUSE OF THE DISSENT I MADE ON THE AWARD OF THE BOARD DATED NOVEMBER 22, 19 84, THAT ANY COMPENSATION IS FORTHCOMING IN THIS MATTER, THIS IS CONSISTENT WITH MY ORIGINAL POSITION ON THE MATTER, J. T. Courtney. April 16, 1985, Thunder Bay, Ontario. DISSENT I am unable to agree with the supplementary award of the majority. My notes do not indicate that the Grievor testified "that there was no 'understanding' with the College that he would be involved with phase 4, if indeed there was to be a continuation of the program in September, 2983" as set out in the awardof the majority. They do not r~flect "that he 'as- sumed' that there would be a place for him in any event," Rather, my notes indicate that when the Grievor was asked by his own counsel whether he had any understanding that he would be teaching the course, he replied, that he assumed he would (be teaching the course) because he was asked to arrange courses for September classes. He taught and was paid for teaching a couple of non-traditional courses in the afternoons in the summer and he visited Blakelock High School to arrange machine facilities for the next W.I.T,T. course, This took place after May 20, 1983. On about August 16, 1983, the Grievor received a letter of acceptance from a university of Toronto program which would enable him to get a job in a high school doing supply 11'0115 03/12/20072:09 PM ~a~~2 hllp://library ,hicks,com/cgi-bin/library/gel_library ~ ocr__lex I?TITLE", .~ 2. teaching if, in his words, "Manpower didn't fund the W.I.T.T.course in september." He then asked Joyce Reid for a letter of reference, which reads as follows: Sheridan College of Applied Arts and Technology 178 South Service Rd. East, Oakville, Ontario L6J 2XS 842-0105 Queen Elizabeth Campus 83 08 18 TO WHOM IT MAY CONCERN Ronald Brackenridge has been a sessional faculty member of Sheridan College since March IS, 1982, . Mr, Brackenridge has been a trades instructor in the Women Into Trades and Technology program. During his peliod of employment with us, he has demonstrated his ability to work well w'ith students, fellow faculty members and Administration. When Mr. Brackenridge joined our staff, his initial responsibility was to assist in setting up a pilot program for the Women Into Trades and Technology program. He dedicated himself to making this pilot program a success and continued to teach in subse quent Women Into Trades and Technology programs. In a program involving students with a wide variety of educational and cultural backgrounds and ranging in age from 18 -34, considerable flexibility and innovativeness has been required, Mr. Brackenridge has met the challenge well, noflS 03/12/2007 2:09 PM ca,.6{i2 .~ hltp:l/library ,hicks,com/cgi-bin/library/gel__library _ ocr_lex t?TITLE", I have been pleased to have Mr. Brackenridge as a member of our teaching staff. Sincerely, Mrs. Joyce Reid Campus Administrator JR: ld 3. The letter does not purport to be a termination of employment. It speaks of the Grievor's teaching activities in the past tense because his sessional appointments were concluded at the time she was asked to write the letter, and Phase 4 had not yet been funded. The Grievor was expecting to be asked back provided that the W. I. T. T. program was funded. There is no evidence to suggest Miss Reid thought otherwise, The Grievor was not told he would not be asked back after May 20, 1983. The College engaged his services after May 20, 1983, and his status was in limbo, He still remained, in theory at least, a probationary employee, The cases relied upon by the majority to find that his employ~ent terminated as of September 20, 1983, are posited on fact situations where the employer clearly intended to release the employee. In this case, the majority appears to equate the cessation of employment at the end of a session with an inten tion to release. The supplementary award of the majority implies a constructive intention to release and from there con eludes a constructive dismissal has occurred. with the greatest of deference to my colleagues, this is an inappropriate inference to draw from the facts of this case. There is very skimpy evidence to support an intention to release. It is simply too remote an inference upon which to 4. base an award, ]3"ul. ]S 03Jl2/2007 2:09 PM aE~:!~ hllp://library,hicks,com/cgi-binllibrary/geUibrary _ocr_lex 1'!T1TLE." In effect, the Board is concluding from the ex post facto evidence of Karam Daljit given February 7, 1985, that had the College known that it had failed to release the Grievor, it would have released him before September, 1983, (That evidence was admitted, subject to the weight the Board would give it, overtheobjection of Counsel for the Employee,) This Board could just as. reasonably, and, in my opinion, more reasonably, infer that had the college known it had failed to release the Grievor in May, 1983, that, if it realized this in September, 1983, it would have kept the Grievor on as a sessional W.I.T.T, trades instructor for Phase 4 instead of posting a com petition for a full-time trades instructor. In the context of this Collective Agreement a notice of release must be formal, Constructi ve release of a probation ary employee is simply not contemplated under this Collective Agreement. In The Board of Governors of Algonquin college of Applied Arts and Technology and O.P.S.E.U. (Brunner) 1983 (Grievance of Gatien) the Arbitrator commented that a College's failure to hire someone back is not sufficient to constitute a notice of release. Here the College failed to hire the Grievor back as Trades Instructor for Phase 4. The fact that the Grievor complained that this was so in September, 1983, does not 5. and should not make the College's failure to hire him back any more a notice of release than it did in the Gatien case. The Grievor was a probationary employee as of May 20, 1983. If he had been able to fulfil 24 months of non-continuous employmentiriperiodsofatleastone full month, under Article 8.01(b) within 48 months of the date of his initial sessional appointment, he would have completed his probationary period, and attained status under the Collective Agreement, However, the Grievor must have been offered and accepted employment with the College for that to have happened. The College circumvented this by, as we heard, departing from an "heir-apparent" approach in filling the Trades Instructor position for Phase 4. The College re-characterized the Grievor's originally full-time sessional position as partial-load in spring 1983 and characterized it as full-time for September, 1983. It posted the full-time position as requiring a basic knowledge of electronics (which the Grievor had) and left the posting silent regarding the need for math teaching skills. The College alleges it denied the Grievor the full-time position because he was not qualified to teach math, and then, having chosen another incum bent, made the posted full-time position a sessional one. Mr. Daljit admitted to this Board that sessional positions could be and were 140f15 03/12/20072:09 PM ;a662 F"\l ..~ http://library.hicks,com/cgi-binllibrary/geUibrary _ocr_lex t?TITLE,.. tailored to the person chosen to 6, fill them. By its actions the College made it impossible for the Grievor to complete his probationary period, Only by the College's actions in re-characterizing the position at least twice and by refusing the Grievor what was essentially his former position, was the Grievor made aware the College no longer wished to utilize his talents, which, until then, had been quite satis factory for the W,l.T.T. program, From this perspective, it is unfair and outside of the spirit and intention of the Collective Agreement to infer a notice of release, triggering a mere 90 days pay in lieu of notice. I would have found the Grievor had maintained his pro bationary status from May, 1983, and had accrued seniority from the date of the commencement of Phase 4 of the W.I.T,T. program and any successor programs, I would have found him entitled to the full salary and benefits of the W,I.T.T. trades instructor, together with interest, from the date Phase 4 commenced in September, 1983 until January 22, 1985, the date upon which the College gave him written notice of release. Further, I would have found that he had attained his full rights under the Collective Agreement once the hours of the incumbent W.I.T.T. trades instructor had, if the Grievor had ac tually worked them, satisfied Article 8.01(a) or (b) 7, I would have retained jurisdiction with regard to the question of compensation, Dated at Toronto this 6th day of May, 1985. S. D. Kaufman Union Nominee 15vf15 03/12/2007 2:09 PM c-'~ :... ~ ~~ ~ -., (F ~ '" ,~- 11 c , _ .oJ - ~ ,- .) - , - , .. J '_ .;J .-" ;a~8 ~ h np :111 ibrary, hicks,com/cgi-b in! 1 ibraryl get_I i brary___ ocr_lex I?TITLE", .'-. -' Concerning an arbitration Between: SENECA COLLEGE and ONTARIO PUBLIC SERVICE EMPLOYEES UNION Grievance ofF. Roy concerning status and termination, 87S67 Board of Arbitration J, W. Samuels, Chairman R. J. Gallivan, College Nominee W, Majesky, Union Nominee For the Parties College R, W. Little, Counsel M. Fogel, Director of Employee Relations Union S. Ballantyne, Counsel T. Montgomery, Local President F. Roy, Grievor , Ol .:) 03/]2120072:01 PM ;a;;.'48 http://library,hicks,com/cgi-bin/library/geUibrary _ ocr _ tex t?TITLE." Hearing in Toronto, January 14, 1988 Frederick Roy was engaged by the College as a sessional teacher in July 1985. He served three distinct periods as a sessional employee, the last one ending on May 15, 1987, The College did not reengage him because at the time it was not in a position to hire regular faculty, The College did make it clear that it was pleased with his work in his three different course areas. The grievor claims that, by the time of his termination, he should have been considered to be a full-time employee on probation, with the rights of such an employee under the collective agreement. The Union relies on Article l(c) in Appendix 1171, which says that "If a sessional employee is continued in employment for more than the period set out in paragraph (a) above, such an employee shall be considered as having completed the first year of the two (2) year probationary period and thereafter covered by the other provisions of the Agreement". The period set out in paragraph ( a), to which reference is made in paragraph (c), is "up to twelve (12) full months of continuous or non-continuous accumulated employment in a twenty-four (24) calendar month period". The Union argues that Mr. Roy was employed as a sessional employee for more than "twelve full months" in the twenty-four calendar month period of July 1, 1985 to June 30, 1987, and therefore should have been considered as having completed the first year of the two-year probationary peliod and now covered by the collective agreement. For the purposes of this case, the parties have agreed that the definition of "full month" is the one set out in Article 8.01 (b) of the collective agreement. The second clause in this article reads: For the purpose of this paragraph, effective September 1, 1976, a calendar month in which the employee completes fifteen (15) or more days worked shall be considered a "full month". It is to be noted that this clause says clearly that this definition is only "for the purpose of this paragraph", and the paragraph as a whole is not relevant to 2 our case. Nonetheless, this is the definition of "full month" which the parties agreed we should use, The grievor's three periods of employment were July 3 to September 6, 1985; June 2 to August 29, 1986; and October 14, 1986 to May 15, 1987 (this last period is the result of an initial contract and then several extensions), It is agreed by the parties that there are eleven months in these periods which 2 of 8 03112120072:01 PM ~a748 ~ http://library,hicks,com/cgi-binJlibrary/gel_library _ocr_lex I?TITLE." do consist of fifteen or more days worked---July and August 1985; June, July, and August 1986; November and December 1986; January, February, March and April 1987, In addition, the parties agree that the days worked in October 1986 can be combined with the days worked in May 1987, being the beginning and end ora period of employment, to give a twelfth "full month" (this would be according to the third clause in Article 8.01(b)). However, these twelve full months would run to May 15, 1987, at which time the grievor's period of employment as a sessional employee was over, and he would not have "continued in employment" for more than the twelve full months, The Union suggested that we could now count the six days worked in September 1985 to give the grievor "more than" the twelve full months. But Article l(c) in Appendix III requires not just "more than" the twelve full months. The employee must be "continued in employment" beyond the twelve full months. Thus, for the grievor to have "continued in employment for more than" the twelve full months, we have to find that October 1986 was a "full month" on its own. If this were so, the grievor's twelve full months would end on April 30, 1987, and his service in May 1987 would be the continuance beyond the twelve full months. Thus in May 1987 he would be considered to be a probationary employee who had completed twelve months of his probationary period, and he would be entitled to the rights of a probationary employee under the collective agreement. In October 1986, the grievor commenced employment on the 14th. This gave him 14 teaching contact days in the month, on Monday to Friday each week. In addition, it is agreed that he actually worked on the two 3 weekends between the 14th and 31st, giving him 18 actual days worked, The issue is---can one count the weekend days as "days worked" under the definition adopted by the parties in Article 8.01 (b). The grievor needs 15 "days worked" to count October 1986 as a "full month", In our view, "days worked" must mean more than "teaching contact days". This collective agreement recognizes clearly that there is more "work" to be done than simply teaching students in scheduled classes. Article 4.01 (2), which deals with workload, says that "Total workload assigned and attributed by the College to a teacher shall not exceed forty-four (44) hours in any week "(emphasis added), and then provides that workload factors to be considered are "(i) teaching contact hours, (ii) attributed hours for preparation, (iii) attributed hours for evaluation and feedback, (iv) attributed hours for complementary functions", Article 4.01(4)( a) gives a fonnula for calculation of attributed hours for preparation, which depends on whether the course was new, established, or repeated. Article 4.01 (5) gives a formula for calculation of attributed hours for evaluation and feedback, depending on whether the course involved an essay or project, whether it was routine or assisted, or whether it was in-process. And Article 4.01 (6) provides for the calculation of hours attributed for complementary functions. 30~ 03/12/20072:01 PM ;a:;148 hllp://library,hicks.com/cgi-bin/library/geUibrary _ocr_lex I?TITLE.., ==:; We were not told what courses the grievor was assigned in October 1986, so we can't calculate his attributed hours with any precision, But it does seem pretty clear that, with assigned contact hours on 14 days, he would have sufficient attributed hours to make up 15 "days worked" in total, if this is the way to calculate "days worked". Furthermore, we agree with the analysis of the Board of Arbitration in Loyalist College and OPSEU (grievance of Daniels, unrep0l1ed decision of Delisle, dated February 7, 1985), when the Board says (at pages 6-7): In counting days worked we do not limit ourselves to Monday through Friday, Teaching masters hired on a full-time faculty member basis or on a sessional basis are hired for periods of time. The 4 College contracts for the teacher's services over the full period of time, There is no warrant in suggesting that only contact days can be counted. There are a variety of other duties contemplated by the Collective Agreement. The necessary duties of marking assignments and preparing classes frequently need to be done on weekends and in this case, by the unchallenged evidence of the grievor, were in fact done. There are two possible interpretations of this passage. On the one hand, the Board may be saying that one should count the "full period of time" for which the teacher's services are contracted---that is, the teacher's "days worked" are equal to the calendar days in the month for which the employment runs. On the other hand, the Board may be saying that one should count the actual days worked. Whichever view is taken, in our case Mr. Roy had 15 "days worked" in October 1986. Thus, whether "days worked" means the total days assigned and attributed under the formulae in Article 4, or calendar days, or actual days worked in the particular case (and our preference would be the first of these possibilities), our grievor had 15 "days worked" in October 1986, This means that by May 1987 he was continued in employment beyond the allowable sessional period in Appendix III, and was to be considered as a probationary employee having completed his first year of probation on April 30, 1987. As a probationary employee, he was entitled to the rights set out in Article 8,OI(c) of the collective agreement. This provision reads: During the probationary period an employee will be informed in writing of the employee's progress at intervals of four (4) months continuous employment or four (4) months of accumulated non-continuous employment and a copy given to the employee. Also, it is understood that an employee may be released during the first five (5) 5 46t'8 03/12/20072:01 PM a748 http://library.hicks.comlcgi-bin/library/gel_library _ ocr, lex I?TITLE... ~ months of continuous or non-continuous accumulated employment following the commencement date of the employee's employment upon at least thirty (30) calendar days' written notice and during the remainder of the employee's probationary period upon at least ninety (90) calendar days' written notice. If requested by the employee, the reason for such release will be given in writing. The critical element in this provision is the f,1fievor's right to at least 90 calendar days' written notice that he would be released. The fact that the College did not do any performance appraisals in writing of the grievor is not critical for two reasons. Firstly, the grievor became a probationary employee on April 30, 1987, by operation of Article 1(c)of Appendix Ill, and he had not yet served four months as a probationary employee. Article 1 ( c) deems him to have completed 12 months of the probationary period, but his actual service was as a sessional employee and as a sessional employee he did not have a contractual right to performance appraisals. Secondly, even where a probationary employee had a right to performance appraisals and did not get them, this was held not to be a bar to release by the College [see Seneca College and OPSEU (grievance of O'Neill, unreported decision of Brent, dated February 28, 1984), at pages 7-8}, and we agree with this decision. Pursuant to Article 8.02(a), a probationary employee cannot grieve a release { see Seneca College and OPSEU (grievance of Moran, unreported decision of Samuels, dated September 18, 1985); and Mohawk College and OPSEU (grievance of Ennis, unreported decision of Samuels, dated March 26, 1986) 1, but he can grieve the College's failure to give the 90 days' notice. The College argued that the grievor was given 90 days' notice because he knew from the outset of his third sessional appointment that his employment would end in May 1987. In fact, this is not accurate. On October 9, 1986, the grievor was engaged from October 14, 1986 to January 30, 1987. Later this was extended to May 19, 1987 (the document is not well 6 reproduced, but the date of this extension appears to be sometime in January 1987, because it is "as per authorization received January 14, 1987"). Then on April 16, 1987, the period of employment was extended to May 22, 1987. And finally on April 27, 1987, the grievor was informed that his period of employment would end on May 15, 1987. Therefore, in our view, the grievor was not notified of the May 15, 1987 terminal date until April 27, 1987. Was this the requisite notification of "release"? The Union argues that it can't be a release unless the College knows it is effecting a "release", and since the College didn't consider Mr. Roy to be a probationary employee, it couldn't have turned its mind to a "release". In our view, a "release" is nothing more than the tennination of employment of a probationary employee pursuant to Article 8.01 (c). It is the reality which matters. There is no doubt here that the College intended to terminate the employment of the grievor. Because Mr. Roy was a probationary employee at the time of this tennination, it was a "release". But the College failed to give the requisite 90 calendar days' notice. The grievor is entitled to compensation in lieu of notice [see Re Ontario Council of Regents of Colleges of Applied Arts and Technology and Civil Service Association of Ontario (Inc.) (1976), 13 LAC (2d) 82 (Weatherill), at ; 01 0 03/12/20072:01 PM :a.:z48 hllp://library.hicks.com/cgi-bin/library/geUibrary _ ocr"lex I?TITLE... ~ page 85 1/2]. Mr. Roy received notice on April 27, 1987 that his employment would end on May 15, which is 18 calendar days' notice. He is entitled to compensation in lieu of notice for an additional 72 calendar days. This amount is to be calculated as follows---take the gross amount paid to Mr. Roy for the employment period October 14, 1986 to May 15, 1987; divide this amount by the number of calendar days in this employment period, to arrive at a "rate of remuneration per calendar day"; and multiply this "rate of remuneration per calendar day" by 72. The figure arrived at is his gross 7 compensation in lieu of notice, which would be subject to any lawful deductions, such as income tax. We will reserve our jurisdiction to deal with any matter related to compensation, if the parties have any problem implementing this order. Done at London, Ontario, this day of, 1988. J. W. Samuels, Chairman R. J. Gallivan, College Nominee I CONCUR W. Majesky, Union Nominee ADDENDUM I am in receipt of chairman I s award in the above matter and concur with the decision, however, I think the award merits an additional comment. The decision clearly accepts that the grievor was a probationary teacher and had the right to grieve the improper notice given regarding his termination. The collective agreement expressly provides for 90 days notice, and provides for no "split the difference" remedy, where, if the employer is remise in notifying the 6 0,'8 03112/20072:01 PM ca748 http://library.hicks.comlcgi-bin/library/geUibrary _ocr_lex I?TITLE... employee within the 90 day timelines, then whatever days notice have been provided, are subtracted from 90, and the grievor compensated for the remaining days. I believe that the grievor was entitled to receive 90 days notice and that the Chairman has the jurisdiction to award damages for an improper notice of lay-off, re Lufkin Rule Co. of Canada Ltd. (1970), 22 L.A.C. 276 (Shime). If a claim for damages is to be awarded in these circumstances, it must clearly be shown that failure to give improper notice in some way prejudiced him or caused him harm, re Red Lake Board of Education (1982), 6 L.A.C. (3d) 20 (R.L. Kennedy); Rexwood Products Ltd. (1981), 3 L.A.c. (3d) 83 (Brown); John Inglis co. Ltd. (1964), 14 L.A.C. 341 (cross) . I believe the employee was prejudiced by not receiving proper notice. The employer, although failing to apply the notification provisions of the collective agreement, has shown an extreme propensity to observe the provisions of the collective agreement regarding language on sessional and probationary teachers. If the employer were to apply as much scrutiny to the notification provisions as with the rest of the agreement, this issue would not have arose. If this employee were an electrician in the construction industry, he/she could merely go to the hiring hall the day after lay-off. The circumstances in this case are entirely different. The grievor is a teacher and a member of a profession whose members work under entirely different working conditions, particularly whether a teacher can get a job the next day or go into a centr~l supply pool. Though the term "supply pool" is more apt to School Boards and their Teachers, it consequently is not an available recourse for which the grievor could turn. Thus making it more difficult for the grievor to find' suitable or alternate' employment without the ninety (90) days notice. Since the grievor was a faculty member, the language in the agreement regarding notice is of particular importance and has a unique purpose to members of the Community college teaching profession. The unique purpose of the 90 days is to provide enough lead-time for teachers to search for employment in another jurisdiction, or, with another employer once notified of their terminal date of employment. But, more importantly, teachers do not just walk into jobs all year round and are subject to the timing and rhythm of the semester system. In addition, the teaching profession is also extremely limited in securing employment, or conversely, only potentially able to apply for employment at certain times of the year. These certain times are windows of opportunity in the teaching profession. Thus, if a teacher misses the hiring phase of the next semester, an individual teacher will be unduly prejudiced if he/she were to seek work in the other 22 community colleges in Ontario, as well as school boards. As well, the collective agreement provides no rationale why 90 days is required. It is certainly my belief that the 90 days is meant to provide an individual employee under contract with the college ample time to plan for his/her livelyhood once their teaching contract has expired. 7 c:--,8 03/]2/20072:0] PM ca:Y8 http://]ibrary.hicks.com/cgi-bin/l ibraryl gel_I ibrary _ocr _,lex t?T]TLE... In addition, the collective agreement provides for no mechanism or right to suspend the lay-off notice provisions of the collective agreement, whether for emergency or any other reason. If you examine how the college administratively handled this situation, you find that the employer notified the grievor on April 16, 1987, that his period of employment was being extended to May 22, 1987. Then on April 27, 1987, the grievor was notified that a policy decision was made which terminated his employment as of May 15, 1987. The process that the college applied in notifying the grievor of his contract being extended, then terminated, leaves something to be desired. At best I would describe it as unprofessional, lacking an element of good faith and an example of insensitive management. One would hope that a large public institution which teaches business student courses on productivity, public administrat ion and human resources, would surely know their obligations under the applicable collective agreement. Especially the frequently applied provisions of the lay-off procedure, which requires employers to apprize employees who are to be laid off of that fact some time before the occurrence of the actual event. For the reasons .enumerated above, I believe the grievor was prejudiced by not having the full benefit of 90 days notice, and should be entitled to the full 90 ninety days notice as specified in the collective agreement. Article 8.01(c), states that a teacher who has been a teacher for more than five months is for the remainder of the employee's probationary period, entitled to at least ninety (90) calendar days' written notice. If re quested by the employee, the reason for such release will be given in writing. . . .3 The grievor in this instance had been a teacher for more than five (5) months and therefore entitled to ninety (90) days notice. If the agreement contemplated subtracting the number of days notice provided by the employer from ninety (90), and paying the employee for the days he wasn't notified, then there should be language in the collective agreement to support such a remedy. But, in this case there is no such language, it says ninety, and that is why I would have awarded the grievor ninety (90) days pay in lieu of notice. Respectfully Submitted By: wally Maj esky Union Nominee 80,'8 03112/20072:0] PM R ~--~ - .., "1 r" ~ J r~ ~ "' .- '1 '- .OJ ~ ) ~a~49 I (-;-;-:11 hup:lllibrary .hicks.com/cgi-bin/library/gel_library _ocr._lexl?TITLE... IN THE MATTER OF AN ARBITRATION BETWEEN LOYALIST COLLEGE OF APPLIED ARTS AND TECHNOLOGY (The Employer) AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The Union) AND IN THE MATTER OF THE GRIEVANCE OF ROY CHAPMAN (FILE #88A755) BOARD OF ARBITRATION H.D. BROWN, CHAIRMAN J. MCMANUS, UNION NOMINEE R.J. GALLIVAN, EMPLOYER NOMINEE APPEARANCES FOR THE EMPLOYER ANN BURKE, COUNSEL D. BUTLER, DIR. OF PERSONNEL APPEARANCES FOR THE UNION JANET E. MOSHER, COUNSEL H. PLUMMER, LOCAL PRESIDENT R. CHAPMAN, GRIEVOR A HEARING IN THIS MATTER WAS HELD AT TORONTO ON JULY 12,1988. AWARD -1- 031] 212007 1:59 PM a45J.. hllP:l/library .hicks.coni/cgi-bin/library/geUibrary _ocr _lexl?TITLE... A grievance was filed on March 4, 1988 under the provisions of a collective agreemen then in effect between the parties which claims as follows: "As a probationary employee with more than five months service, I have a substantive right to 90 calendar days written notice of termination (Art. 8.01(c). I received a letter of termination on February 17/88 making my termination effective May 6, 1988. 'This notice is less than the required 90 calendar days. I request the full 90 calendar days notice. If given proper notice of 90 calendar days, my "termination" date would be on or about May 17, 1988 at which time I would qualify as a full-time non-probationary employee and would have claim to all rights and priveleges of the co~lective agreement. The parties agree that the Board was properly constituted and that it had jurisdiction to deal with the dispute. By letter dated February 17, 1988 the Employer informed the grievor that "your probationary position at the College will be terminated with effect from May 6, 1988, which will be your last working day. . . -2- The Union's position is that the notice of termination was 79 days while the grievor was entitled under Article 8.01(c) to 90 calendar days written notice. This Article is as follows: (c) During the probationary periodan employee will be informed in writing ofthe employee's progress at intervals of four (4) months continuous employment or four (4) full . 0;-;:] 03112/2007 I :59 PM a49, hllP:lllibrary .hicks.com/cgi-bin/library/get,_library "ocr _lext?TlTLE... months of accumulated non-continuous employment and a copy given to the employee. Also, it is understood that an employee may be released during the first five (5) months of continuous or non-continuous accumulated employment following the commencement date of the employee's employment upon at least thirty (30) calendar days' written notice and during the remainder of the employee's probationary period upon at least ninety (90) calendar days' written notice. If requested by the employee, the reason for such release will be given in writing. As of May 7 the grievor would have completed his probationary period so that he would have been covered by the collective agreement. Therefore had 90 days notice been given to him, it is alleged that the termination would have become effective on May 17, at which time he would have acquired benefits under the collective agreement having completed his probationary period. On May .6 the grievor received a cash payment which reflected hours of overtime, retroactive pay and vacation pay. The Employer by memo to the grievor dated March 9, 1988 advised him that he had 115.25 days notice from February 17, 1988 as he woulld be receiving a -3- cheque for the equivalent of 36 1/4 days pay plus the 79 calendar days of notice. At that time the grievor was also advised that "the college does not consider. the release of an employee during the probationary period to be grievable under 8.02(a) and thus your step one grievance dated March 4,1988 is invalid. . ." The 36 1/4 days referred to in that memo was the grievor' s accrued - - vacation entitlement which the College paid as part of the pay in lieu of notice to the grievor. The grievance was denied by the Employer at the subsequent grievance steps on the basis that he had received a total of 115 days in advance of the stated date of termination and that the College objected to the grievance of the grievor as a probationary employee. These matters were subsequently referred to arbi tration and came on for hearing as parties agreed to deal firstly with the preliminary objections which the Board has determined in this award. above noted. The of the Employer 3 (~11 03112/2007 ] :59 PM :a€3 hltp:l/library.hicks.com/cgi-bin/library/geUibrary _ocr_lex I?TITLE.,. The Union I s posi tion is that the grievor had not been given proper notice which would, had it been given, have extended his employment to May 17~ Therefore the question is whether the Employer had the right to discharge the grievor on May 6, which the Union submits it did not but had violated Article 8.01; secondly, it is the Union's position that the grievor had not been -4- given 90 days notice in the calculation of pay in lieu which included accrued vacation pay which was improper so that the Union takes issue that vacation pay can be part of the pay in lieu of notice. In its submission that does not involve an amendment to the grievance which claims that the release on May 6 was not. val i d. The submission for the College is that under Article 7.01 (b) it has the right to discharge a probationary employee during the probationary period and by Art icles 8.02 (a) and 11.06 the probationary employee does not have a right to grieve the discharge except in circumstances of discrimination or unlawful conduct which does not arise in the present' circumstances. A bad faith allegation is not part of the grievance. Reference in this regard was made to Re Sheridan College of Applied Arts and Technology and OPSEU (Brown - September, 1987); Re Seneca College and OPSEU (Samuels ~ September, 1985); Re Seneca College and OPSEU (Swan). It was further submitted that the Union's position concerning the accrued vacation pay to be not included as pay in lieu of notice is not part of the grievance which would be -5- required to be amended to involve that dispute. It was submitted that a probationary employee is enti tled only to proper notice and if the College was required to give 90 days written notice prior to the expiry of the probationary period, the period under the agreement would then be two years less three months, which would be an amendment of the agreement. It was submitted that the Employer's right to discharge a probationary employee is not impacted by the provisions of Article 8.01(c) which is not a condition precedent to the valid release. That section, in its submission, cannot be used to undo the legal effect of his discharge as a probationary employee on May 6 after which the employment 4 of 1 ] 03/12/2007 1 :59 PM :~ htlp:l/library.hicks.com/cgi-binJlibrary/geUibrary _ ocr ~ text?TlTLE... relationship did not continue. Reference was made to Re Algonquin college and OPSEU (Brown - November, 1985); Re 91l_t~Ti~_~ouncil:........<=>J_Regents_,~_Coll~3es_~nd_A12I:>_~.~,~s! Arts And Technology and Civil Service Assoc. of Ontario , 13 L.A.C. (2d) 82 (Weatherill). It was further submitted that the notice of 72 days exceeded the provisions for notice under the Employment Standards Act which was therefore not relevant.Re Fanaken v. Bell, Temple, 7 C.C.E.L 317. -6- It was the submission for the Union that it did not take issue with the jurisprudence that a probationary employee cannot grieve his release or dismissal except where there has been bad faith or discrimination, but argued that the grievor has not grieved his release but the notice period under Article 8.01 (c), Re Seneca College and OPSEU (Samuels - September, 1985), Re Seneca college and OPSEU (Swan).. A substantive right in the collective agreement cannot be procedurally removed and therefore the grievor does have the right to grieve the Employer's failure to give proper notice. In its submission, proper notice was 90 calendar days written notice of termination and in interpreting that phrase it is a requirement to apply the Employment Standards Act, Re McLeod v. Eagen, 46 D.L.R. (3d) 150. By section 20f the Act part 12 applies so that by Section 40 (1), which in part is: "No Employer shall terminate the employment of an employee who has been employed for three months or more unless the Employer gives, (b) two weeks notice in writing to the employee if his or her period of employment is one year or more but less than three years;... and such notice has expired. -7- It was argued that until the notice has expired, the employee cannot be terminated under this legislation. The collective agreement provides for 90 days notice of termination which is a greater benefit than provided in the Act, which is referred to in Section 4, but the principle remains the same that termination is after the expiry of the notice period. In its submission, in the application of Article 8.01 (c) the above section must be appl ied to give the reading which the Union urges that the employee must be given 90 days advance notice of termination. That Article fetters management's discretion to discharge an 50111 03112/2007 I :59 PM :a4-lt hllp:lllibrary .hicks.com/cgi-bin/library/get_library _ocr_lex t?TITLE... employee under Article 7 of the agreement. Where there has not been proper notice given under Article 8.01(c), the grievor should be placed as a matter of remedy, in the position that he should have been had there not been a breach of the collective agreement. It was submitted that a remedy therefore of eleven days pay to complete the notice 'period of 90 days would not satisfy the claim as had the Employer not breached Article 8.01(c), the grievor would have completed his probationary period and would be entitled to all rights under the collective agreement. -8- It was further submitted that if the Board found against the Union's position set out above, then an issue would arise as to whether the Employer could combine vacation pay with in lieu pay for the purposes of notice of termination which, in its submission" is not an amendment to the grievance' as there is an allega tion of failure to give proper notice. In the alternative, the grievor would be entitled to 11 days pay at the minimum, but the claim does not change the substance of the grievance which is that he did not receive proper notice of termination and that does not give rise to a new claim concerning the vacation entitlement which can be included in the claim for proper notice. The issue of whether a probationary employee can grieve his dismissal has been the subject of many arbitration awards between these parties and as a proposition as held by the various awards, is accepted by the Union in this case. For reference however, in that regard, the current state of such issue has been dealt with by this Chairman in the Sheridan College and Algonquin College awards, which need not be repeated in this award. The Union maintains in the present matter that the grievor is not grieving his release as a probationary employee, -9- but his lack of proper notice under Article 8.01(c). The facts are not in dispute that the grievor was given notice of termination on February 17, 1988, effective May 6, 1988 which was 79 calendar days after the written notice was given to him. His last day of work was May 6 at which date he was a probationary employee. The probationary period under the collective agreement as set out in Article 8.01(a) as: 6 o~i ] 03/] 212007 1:59 PM a 4..Jl. htlp://library .hicks.com/cgi-bin/library/get_library _ocr _lex I?TITLE... (i) A full-time employee will be on probation until the completion ,of the probationary period which shall be two (2) years' continuous employment. Under Article 8.01 (c) a probationary employee within the two year period can be released after five months on at least 90 calendar days written notice. The Employer provided 79 calendar days of written notice and payment in lieu of notice which it claimed to allow 115 days. The first issue however to be determined, is whether there was a breach of Article 8.01(c) by the Employer which could lead to a negation of the notice of termination or to an extension of time for the notice to take effect unti 1 May 17, at which time the grievor would have completed the two year probationary period. What the Union urges is that the Employer -10 - must give 90 days written notice of termination under Article 8.01(c) and therefore by giving 79 days plus payment in lieu, it did not comply with this section and at May 6 the grievor was not properly terminated but should have been maintained as an employee until the expiry of the proper notice period at May 17. If that was correct, then the grievor could claim the rights of the collective agreement as a regular employee. The Union's position concerning the effect of the notice under Article 8.01(c) would allow the grievor to indirectly contest his release as a probationary employee when that is not an issue which is arbitrable under the collective agreement. When the griever was given notice of termination he was a probationary employee. Article 11.06 provides that: "It being understood that the dismissal of an employee during the probationary period shall not be the subject of a grievance. . . Article 8.01(c) does not condition the right of the Employer to discharge an ~mployee but provides the right of a probationary employee to notice. The term of the probationary period is not 7 ot'11 03/1212007 1: 59 PM ~~,fM} . hllp:lllibrary .hicks.com/cgi-bin/library/geUibrary" ocr "lex I?TITLE... -11 - qualified by the requirement to give 90 days notice prior to its expiry That would mean that the probationary period would be two years less three months and if a notice of terminationwas not given within that period, the probationary period would automatically end at the end of two years and that employee, although subject to a notice of something less than 90 calendar days, would fall within the provisions of the collective agreement, which is the grievor's position in this case. In our view, the Union's position on this issue would require an amendment to Article 8.01 (a), which this Board could not make having regard to the restriction on its authority in Article 11.04 (d). The issue of whether a notice of release of a probationary employee is effective on the date of such notice or after the expiry of the notice period was dealt with in the CSAO award (supra) where the Board chaired by Mr. Weatherill at page 83 -12 said: "In the instant case, the employer purported to, and took appropriate steps to "release" the grievor, that is to terminate the empl~yment relationship during the probationary period. That is something which the collective agreement contemplates the employer may do. Under art. 8.01 (a) however, such release may be affected on notice. The question which arises in the instant case is whether or note, since there was no such notice, the release or termination must be said to be a nullity." And at page 85, the Board stated: 8 0111 "In our view, where art. 8.01(a) of the collective agreement provides that the employer may release a probationary employee upon notice, it does not make the giving of such notice a necessary condition precedent to the release. Failure to give such notice would be a violation of the agreement for which an appropriate remedy (such as payment in lieu of 0311212007 1 :59 PM c~~ .. hllp://] ibrary.hicks.com/cgi-bin/library/geUibrary _ocr _ tex I?TITLE... notice) could be granted. It is our view, however, that it would take express language in the collective agreement to establish the giving of notice as a necessary condition precedent to the release of probationary employees, and to effectively alter the express provision of the agreement that the probationary period "shall be of two years' duration". Such language does not appear in this collective agreement." -13 - The same result as to the language of the collective agreement applies in the instant case. In our view, the above mentioned case has determined the very issue now raised by the Union in this grievance. In the Seneca College - Roy grievance, the Board stated at page 6: "In our view, a "release" is nothing more than the termination of employment of a probationary employee pursuant to Article8.01(c). It is the reality which matters. There is no doubt here that the College intended to terminate the employement of the grievor. Because Mr. Roy was a probationary employee at the time of this termination, it was a "release But the College failed to give the requisite 90 days' notice. The grievor is entitled to compensation in lieu of notice... Mr. Roy received notice on April 27, 1987 that his employment would end on May 15, which is 18 calendar days' notice. He is entitled to compensation in lieu of notice for an additional 72 calendar days." -14 - That Board relied on the ratio of the CSAO case referred to above. The grievor was dismissed during his probationary period on February 17, 1988 when he was released from his employment and that dismissal was in accordance with Article 7 which is not conditioned by Article 8.01 (c). What the grievor is entitled to under that section is at least 90 calendar days of notice. That is the only issue, in our view, which arises from the circumstances of his release from employment on February 17, 1988. ) 01 ,] 1 03/] 2/2007 ] :59 PM :a~~ .. http://library.hicks.com/cgi-binllibrary/gelJibrary "ocr,. lex I?TITLE... The Employer is not required by the agreement to give 90 calendar days of notice as a condition of release of a probationary employee. Where the notice provided under Article 8.01(c) has not been met, the issue can only be the amount of notice and compensation for any deficiency, but a breach of Article 8.01(c) does not lead to an extension of the time for termination in order to exceed, and therefore complete, the probationary period under Article 8.01 (a). The grievor was terminated as a proba tionary employee on February 17, He is enti tled as of tha t date to 90 days notice and therefore payment, but that does not extend his employment relationship which has been severed by the Employer when the grievor was a probationary employee. -15 - Section 4 of the Employment Standards Act provides that the provisions of the Act are minimum and where the collective agreement provides a greater right, the greater right prevails. Clearly, this collective agreement provides a greater right to notice than the Employment Standards Act which therefore does not have any application in these circumstances. The Board finds that the claim of the grievor is limited to compensation with regard to the notice actually given to him at the time of his termination on February 17. That involves an issue of remedy as to whether vacation pay can be combined with severance pay to provide the required 90 day notice period. That is an issue of remedy which flows from the claim in the grievance and is not an amendment of the grievance as submi tted by counsel for the College. The Board cannot conclude at this point as that issue was not dealt with on its merits by the parties, whether there was a breach of Article 8.01(c) If the Employer's position is correct that its payment for 79 calendar days plus 36 1/4 days of vacation pay I o-af 1 ] 03/1212007 1 :59 PM ;a49. · 0":3 11 v.. II hllp:l/library.hicks.col1'J./cgi-bin/library/geUibrary _ OCr"lexl?TlTLE.,. consti tutesnotice which then would amount to 115 days exceeding the requirement of Article 8.01(c), there would then not be a violation of that Section. On the other hand, if that position is not allowed, the Employer would be found -16 to have made a deficient,payment under this Article, and therefore be required to compensate the grievor to the extent of 11 days of pay. That is the narrow issue remaining in this dispute. For these reasons, the Board finds that the grievor's employment as a probationary employee was terminated on February 17, 1988. The Board finds that the Employer was not in violation of the collective agreement in the release of the grievor as a probat ionary employee and which is not an arbitrable issue under this .agreement. The Board retains jurisdiction to deal with the remaining issue of the remedy in the application of Article 8.01(c). DATED AT OAKVILLE THIS.6TH. DAY OF SEPTEMBER, 1988. H.D. BROWN, CHAIRMAN J. MCMANUS, UNION NOMINEE R.J. GALLIVAN, EMPLOYER NOMINEE 03112/2007 1:59 PM ,~., ~~ '" 1 - , ~" ~ ~ j ~ ~ c , , ~ ~J ;: jl caJ} I 0,] ] http://library.hicks.com/cgi-bin/library/gel_library _ ocr_lex I?TITLE... IN THE MATTER OF AN ARBITRATION BETWEEN: F ANSHA WE COLLEGE (the" College ") - and:- . ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the "Union") RE RELEASE IN RESPECT OF MARCIA ROBSON BOARD OF ARBITRATION: Pamela C. Picher - Chairperson Rene St. Onge - Employer Nominee iohn McManus - Union Nominee APPEARING FOR THE COLLEGE: Pamela Chapman - Counsel APPEARING FOR THE UNION: Brenda Bowiby - Counsel :k- 03112/2007 1:59 PM C'b'3 hllp://library .hicks.com/cgi-bin/library/geUibrary _ocr "lex I?TlTLE... Hearings in this matter were held in London on May 19 and June 27, 1988. AWARD The Union maintains that the College failed to give the grievor, Ms. Marcia Robson, notice of release from employment that was in compliance with the tenns of the collective agreement. It is the position of the Union that the grievor, a full-time probationary employee at the time of her release, was entitled to at least ninety days written notice of release pursuant to the combined operation of article 1 ( c) of Appendix III (Sessional Employees) to the collective agreement and article8.0 l(c) of the agreement. Those and other relevant provisions are set out below: APPEND IX III SESSIONAL EMPLOYEES l(a) A sessional empIoyee is defined as a full-time employee appointed on a sessional basis for up to twelve (12) full nnntts of continuous or non-continuous accumulated employment in a twenty-four (24) calendar month period. Such sessional employee may be released upon two (2) weeks'written notice and shall resign by giving two (2) weeks' written notice. (c) If a sessional employee is continued in employment for more than the period set out in paragraph (a) above, such an employee shall be considered as having completed the first year of the two (2) year probationary period and there after covered by the other provisions of the Agreement. The balance of such an employee's probationary period shall be twelve (12) full months of continuous or non-continuous accumulated employment during the immediately following twenty-four (24) calendar month period. Article I RECOGNITION Z vi] ] 03112/2007 1 :59 PM caJ; http://library.hicks.com/cgi-bin/library/gel_library_ocr _ text?TlTLE... 1.01 The Union is recognized as the exclusive collective bargaining agency for all academic employees of the Colleges engaged as teachers (includihg teachers of Physical Education), counsellors and librarians, all as more particularly set out in Appendix I hereto save and except Chairmen, Department Heads .and Directors, persons above the rank of Chairman, Department -2- Head or Director, persons covered by the Memorandum of Agreement with the Ontario Public Service Employees Union in the support staff bargaining unit, and other persons excluded by the legislation and teachers, counsellors and librarians employed on a part-time or sessional basis. NOTE A: "Part-time in this context stall include persons who teach six hours per week or less)' NOTE B: "Sessional in this context shall mean an appointment of not more than twelve months duration in any twenty-four month period." Article 8 SENIORITY 8.01 (a)(i) A full-time employee will be on probation until the completion of the probationary period which shall be two (2) years' continuous employment. (ii) A full-time employee hired after September 1, 1981,' who has completed a probationary period at another Ontario College of Applied Arts and Technology or who holds a valid Ontario Teacher's Certificate and who has one year or more of teaching experience in Ontario will be on probation until the completion of the probationary period which shall be one year's continuous employment.. (b) Effective September 1, 1976, the probationary period shall also consist of twenty-four (24) full months of non-continuous employment (in periods of at least one (1) full month each) in a forty-eight (48) calendar month period. For this purpose, only the period after September 1, 1975, shall be considered and no prior employment or calendar period shall be taken into account or credited. However, an employee's continuous service acquired in accordance with the provisions of the 3 erd 1 03112/2007 ] :59 PM :a2'~ htlp :1/1 ibrary .hicks.com/cgi-bin/library/geUibrary _ ocr _,lex I?TITLE... previous agreement dated the 17th day of September 1975, as at August 31, 1976, for the period back to September 1, 1975, shall count as continuous employment or months of non-continuous accumulated employfuent for the purpose of this Section. For the purpose of this paragraph, effective September 1, 1976, a calendar month in which the employee completes fifteen (15) or more days worked shall be considered a "full month". -3- (c) During the probationary period an employee will be informed in writing of the employee's progress at intervals of four (4) months continuous employment or four (4) full months of accumulated non-continuous employment and a copy given to the employee. Also, it is understood that an employee may be released during the first five (5) months of continuous or non-continuous accumulated employment following the commencement date of the employee's en$oynnn upon at least thirty (30) calendar days' written notice and during the remainder of the employee's probationary period upon at least ninety (90) calendar days' written notice. If requested by the employee, the reason for such release will be given in writing. (d) Upon the completion of the employee's probationary period, a full-time employee shall be credited with two (2) years' seniority if treated under 8.0l(a)(i) or one (1) year's seniority if treated under 8.0 l(a)(ii). An employee who commenced full-time employment with the College directly from the College's predecessor educational institutions shall be credited for the purpose of this Article with seniority equal to the employee's continuous service in such predecessor institution. The list of predecessor educational institutions referred to herein is attached as Appendix VIII of the Collective Agreement. [emphasis added] The grievor has been employed by the College through a series of partial load or full-time sessional appointments since 1979. By March of 1979 she had completed "twelve (12) full months of continuous or non-continuous accumulated employment in a twenty-four (24) calendar month period" within the meaning of article 1 (a) of Appendix Ill, set out 1- 01]] 03/12/2007 I :59 PM :a~ http://library.hicks.com/cgi-bin/library/geUibrary,, ocr_ Icxl?TITLE.., above. Ms. Robson was then continued in employment for a further period, the period in dispute which gives rise to this arbitration. '~- :: By a letter dated April 9, 1986, Ms. Robson was offered "temporary" employment as a full-time probationary teacher for a definite term extending from April 14, 1986 to May] 6, ] 986. The letter further stipulated that her employment with the College would cease on May 16, 1986. Ms. Robson was thus provided with approximately 37 days -4- notice of release through the same letter that offered her a term contract of employment of approximately 32 days. The letter dated April 9, 1986 reads as follows: Dear Ms. Robson: As a followup to your recent conversation with Mr.M. Black, we are pleased to be able to confirm an offer of temporary employment as a 'Full-Time Probationary' teacher in the Preparatory Studies Division of the College, for the period 1986 04 14 to 1986 05 16 inclusive. The teaching assignment has been established with you and will onlybe altered if necessary, after discussion with you. Unless you are advised otherwise in writing, your employment with the College will cease on 1986 05 16 without further written notice. The terms and conditions of this employment are in accordance with the Collective Agreement for Academic Employees. Please contact Human Resources should you require a copy of that document. Your pay will be based on a rate of$28,377.00 per annum, and you will be paid on or about the 24th of each month, into a bank account designated by you. The above- quoted rate includes vacation pay. Deductions such as Income Tax, Canada Pension, Unemployment Insurance and CHIP will be made as applicable. Please sign and return a copy of this letter to our Human Resources Department (Room 81056) to indicate your understanding of and acceptance of this offer of temporary employment. Would you also please phone Human Resources (452-4246) to arrange for an interview for the purpose of completing any necessary documentation. Note that your pay will be initiated only upon 5 on ] 03112/2007 1:59 PM ca73 htlp://library .hicks.con1/cgi-binllibrary/geUibrary" ocr" lex I?TITLE... completion of both of the above actions. Any queries regarding your teaching assignment should be directed to your department head. Yours sincerely, "Harry Rawson" President -5- It is undisputed that for the period of employment under review Ms. Robson was no longer a sessional employee, excluded from the bargaining unit. Instead she had attained the status of a full-time probationary teacher within the bargaining unit. She no longer was paid an hourly wage but was paid on the basis of an annual salary with benefits and deductions. Ms. Robson testified that when she read the terms of the April 9th letter offering her a limited term appointment of approximately 32 days she was concerned that she was not being provided with proper notification of her release from that appointment and thus consulted the Union. As requested, Ms. Robson signed the contract and letter from President Rawson but submitted at the same time the following letter of explanation and position: 1986 04 10 Dear Mr. Rawson: Please find enclosed a copy of my 'Full-Time Probationary' contract for the period 198604 14 to 1986 05 16 inclusive. Assuming that this contract is in accordance with the Collective Agreement, I accept the conditions of this agreement. I o~,] 0311212007 1 :59 PM c(J2J ~2 hllp://library.hicks.conl/cgi-bin/library/get_library _ocr_lex t?T1TLE... Sincerely, "Marcia Robson" On or about May 29, 1986, Ms. Robson filed a grievance alleging that she had received inappropriate notice of release. On June 12, 1986, Ms. Robson sent the College a memo indicating that she would be unavailable for employment from June 30, 1986 to August 15, 1987 and further stating -6- that upon her return she wanted to resume her relationship with the College. Ms. Robson utilized the period for personal professional development. It is common ground that when she became unavailable she was not currently employed by the College and thus was not given 'permission" to leave. She did not take a "leave of absence" as that term is commonly understood in the employment context. When Ms. Robson developed the intention to become unavailable to work for the College from June 30, 1986 to August 15, 1987 and whether she communicated that intention to the College prior to her memorandum dated June 12, 1986 was not revealed in evidence. The Union argues that article 8.01(c) entitled the grievor to at least 90 days written notice of release. The Union submits that at the point of her April-May 1986 appointment the grievor was in the second year of her two year probationary period, and thus was well beyond the first five months of her probationary period during which only 30 days notice of release would be required. To place the grievor in the second year of the two year probationary period where she would be entitled to 90 days notice of release, the Union relies on article l(c) of the collective agreement which provides that a sessional employee who has completed 12 months of continuous or non-continuous accumulated employment in a 24 calendar month period "shall be considered as having completed the first year of the two (2) year probationary period and thereafter covered by the other provisions of the Agreement". 'odl 03112/2007 1:59 PM :a'fl hllp://library .hicks.com/cgi-bin/library/gel_library _ocr_lex I?TlTLE... It is the position of the Union that proper notice of release is a mandatory condition precedent to the effcctiveness of the release and that in the abscnce of due notice the release is void ab initIo. In support of this position, counsel relies on the decision in Re CIP Containers Ltd. and Intemational Chemical Workers, Local 229 (1973), -7- 2 L.A.C. (2d) 308 (FED. Brown). Accordingly, counsel maintains that the grievor is still employed and that effective release would now require 90 days notice. The College has a different view of the grievor's rights. First, counsel for the College argues that the grievor was not "released" within the meaning of article 8.01 (c) of the agreement because her definite term of employment from April 14, 1986 to May 16, 1986 just came to its natural end. Counsel maintains that a teacher is "released" for the purposes of article 8.01 (c) if the College seeks to terminate the teacher during an indefinite appointment or if it seeks to end ahead of its scheduled end a definite term appointment such as the grievor's. The College maintains that since it did not try to prematurely end the grievor's 30 day definite term appointment, the notice provisions in article 8.01(c) were not triggered. The second and alternative posItlon of the College is that if the notice proVISIOns apply to a termination at the expiration of a definite tenn appointment then the grievor would only be entitled to 30 days notice because she was within the first 5 months of her period of employment with the College as an employee within the bargaining unit. Counsel argues that the five months referred to in article 8.01(c) must speak to the period of the grievor's employment as a full-time probationary employee within the bargaining unit and cannot reach back to a point when she was a sessional employee and not included in the bargaining unit. As a further alternative position, counsel for the College maintains that even if the notice provisions apply to the natural expiration of a definite term appointment and even if the grievor was entitled to 90 days notice of release, the failure to give due notice does not void the release. In support of this position the College relies on the -8- S orJl 0311212007 1 :59 PM ~a~~ hllp:l/library.hicks.com/cgi-bin/library/getJibrary _ocr_lex I?TITLE... decision in Board of Governors of Sheridan College of Applied Arts and Technology and Q.P.S.E.U. (grievance of Ronald Brackenridge) unreported decision of 3. Brunner dated May 6, 1985. Counsel maintains that at most the College would be obligated to compensate the grievor for the shortfall in the notice that was actually given. Moreover, counsel maintains that the grievor should not be compensated for any portion of the 90 days that would extend beyond June 30, 1986 since she, by her own volition, became unavailable for work at that point. After carefully considering the submissions of the parties the Board concludes that the plain meaning of articles l(a) of Appendix III and article 8.01(c) is that once a sessional employee has completed 12 full months of accumulated employment in a 24 month period (as had the grievor by March of 1986), that emploxee, at the commencement of a period of subsequent employment, (at least within the . immediately following 24-month period), becomes a full-time probationary employee within the bargaining unit having completed the first year of the two-year probationary period. Crediting an . employee within the bargaining unit with probationary service thraigh work performed outside the bargaining unit is not an alien concept in collective agreements and, we conclude, is expressly provided f or in Appendix III of this collective agreement. The clear wording of article 8.0 1 (c) indicates that the 30-day notice period which operates during "the first five (5) months of continuous or non-continuous accumulated employment following the commencement date of the employee's employment" refers to the first 5 months of the probation period and is not restricted to the first five months of employment in the bargaining unit. This interpretation flows directly from a full reading of the clause which expressly provides for a 90-day notice period "during the remainder of the employee's probationary period ...". The use -9- of the word, "remainder" in this part of the clause makes it clear that the prior reference to the "first five (5) months" means the first five months ofthe probationary period. The Board concludes then that when the grievor performed her work from April 14 to May 16, 1986 she did so as a full-time probationary employee who through the operation of article 1 (a) of Appendix III had been credited with one year of probationary service and thus was standing at the commencement of her second year of probation. She thus had completed well more than 5 months of accumulated employment and was entitled to at least 90 days wlitten notice of release. We observe 90fll . 03112/2007 I :59 PM ~al~ hllp://library .hicks.com/cgi-bin/library/geUibrary _ ocr_lex I?TITLE... that this conclusion does not prevent the College from giving a teacher in the grievor's position a term of employment of less than 90 days. Rather it requires the notice of release to be 90 days. The Board does not accept the assertion of the Union that the College's release was void ab mi-tb by Virtue of its failure to give due notice. The release was effective but it was done in violation of the collective agreement. Accordingly, the grievor should be compensated for the breach by being placed in the position she would have been in had there been no violation of the collective agreement. It was on April 9, 1986 that the College gave its notice of the release to be effective on May 16, 1986. It thus provided approximately 37 days notice of release and the grievor was entitled to another 53 days notice. The evidence before the Board does not establish that the grievor would not have been available to work throughout that 90 day period. Her notice to the College of her unavailability from June 30, 1986 to August 15, 1987 was dated June 12, 1986 and thus followed her actual release. Once the failure to give adequate notice has been established, the burden rests with the - 10- College to establish a proper basis for circumscribing the grievor's entitlement to compensation for the shortfall in the notice. That burden has not been met ib this instance. It may well be that if the grievor had been asked to work through the 90 day period instead of being released prematurely she would not have become unavailable for work on June 30th. The date of her stated unavailability was formally communicated by a letter dated June 12th, a date after her release. The College has not established that the grievor would not have been available to work through the 90 day period if she had been asked in a timely manner. Accordingly, the Board concludes that the appropriate remedy for the College's breach of the collective agreement is to compensate the grievor for 53 days wages in lieu of the notice she should have received. For the reasons set out above the Board finds that the College breached the collective agreement I OUi' 1 1 03112/2007 1 :59 PM ;a:q 1 h,;f 1 1 hup:/Ilibrary .hicks.corri/cgi-binllibrary/get_library _ocr_lex ITl TILE.., through its failure to provide the grievor with 90 days notice of release. The College is directed to fully compensate the grievor for her losses on the basis of 53 days wages in lieu of notice. The Board remains seized in the event that a dispute, arises over the implementation of this Award. DATED at Toronto this 9th day of September, 1988. Pamela C. Picher Chair "Rene St. Onge" I CONCUR. Employer Nominee I CONCUR. "John McManus" Union Nominee 03/12/2007 1 :59 PM ;8 --' ,....---:-, .~ ~ ;a~ iI hllp:l/library .hicks.com/cgi-bin/library/geUibrary _.ocr ~ lex I?TITLE.., IN THE MATTER OF AN ARBITRATION BET WEE N: ')(.~1C - ST. LAWRENCE COLLEGE (The Employer) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The Union) AND IN THE MATTER OF THE GRIEVANCE OF A. ABEL -#87E45 BOARD OF ARBITRATION: Kenneth P. Swan, Chairman R.J. Gallivan, Employer Nominee Jane Bern, Union Nominee Appearances: For the Employer: Chris White, Counsel For the Union: C.G. Paliare, Counsel AWARD At the hearing in this matter, the parties were agreed that the board of arbitration had been properly appointed, and that we had jurisdiction to hear and determine the matter at issue between the parties. Although the matter is quite complex, counsel were able to proceed by documentary evidence admitted on consent and oral submissions, without the necessity of calling witnesses. Despite its agreement on our general jurisdiction in this matter, the Employer argued that we were without jurisdic tion to hear the merits of the matter for two substantial reasons, which were raised as preliminary obj ecti ons . The first of these is that the grievance was filed beyond the time limits set out in the collective agreement. The second, and more fundamental objection, is that the grievor was a probationary employee at the time of the termination of his employment, and that the present grievance, which effectively characterizes that termination as discharge without cause, is not arbitrable. We shall deal with the second objection first. Before turning to the undisputed facts of this matter, it is useful to set out the provisions of the collective agree ment on which the parties rely: 1.01 The Union is .recognized as the exclusive collective bargaining agency for all academic employees of the Colleges engaged as teachers (including teachers of Physical Education), counsellors and librari ans, all as more particularly set out in Appendix I hereto save and except I 6(16 03/12/2007 1 :57 PM a~ hup://library .hicks.com/cgi-bin/library/geUibrary _ocr _lext?TlTLE." ~ Chairman, Department Heads and Directors, persons above -2- the rank of Chairman, Department Head or Director, persons covered by the Memorandum of Agreement with the Ontario Public Servic e Employees Union in the support staf f barga in ing uni t, and other persons excluded by the legislation and teachers, counsellors and librarians employed on a part-time or sessional basis. NOTE A: "Part-time in this context shall include persons who teach six hours per week or less." NOTE B: "Sessional in this context shall mean an appointment of not more than twelve months duration in any twenty-four month period." 3.03 (1) The Salary scales as set out in more than twelve (12) hours on a regular up to and inc luding twelve (12) hours paragraph (2) hereto and Appendix II. Appendix I will apply to persons teaching basis. Per.sons teaching over six (6) and on a regular basis will be covered by 3.03 (2) Persons who teach over six (6) and up to and including twelve (12) hours per week on a regular basis shall be referred to as "partial-load" employees and shall not receive salary, vacations, holidays or fringe benefits (except for coverage of worker's Compensat ion and liabili ty insurance) under this Memorandum and Appendix I but shall be paid for the performance of each teaching hour at an hourly rate within the range of hourly rates set out in Appendix II and in accordance with the other provisions of Appendix II. 3.03 (3) It is recognized that a full- time teacher who may be assigned by the college to an instructional assignment of less than thirteen (13) hours per week shall continue to be paid on the basis of salary rather than on an hourly rate except as may occur through the application of Article 8, seniority, or as may be mutually agreed between the employee and the College. -3- 8.01 (a) (i) A full-time employee will be on probation until the completion of the probationary period which shall be two (2) years' continuous employment. 2 of 16 03112/2007 I: 57 PM :~ hllp://library .hicks.com/cgi-bin/library/gel,library _ ocr._ lex I?TITLE." (ii) A full-time employee hired after September 1, 1981, who has completed a period at another Ontario College of Applied Arts and Technology or valid Ontario Teacher's Certificate and who has one year or more experience in Ontario will be on probation until the completion of the period which shall be one year's con tinuous employment. probationary who holds a of teaching probationary (b) Effective September 1, 1976, the probationary period shall also consist of twenty-four (24) full months of non- continuous employment (in periods of at least one (1) full month each) in a forty-eight (48) calendar month period. For this purpose, only the period after September 1, 1975, shall be considered and no prior employment or calendar period shall be taken into account or credited. However, an employee's continuous service acquired in accordance with the provisions of the previous agreement dated the 17th day of September 1975, as at August 31, 1976, for the ped,od back to September 1, 1975, shall count as continuous employment or months of non-continuous accumulated employment for the purpose of this Section. For the purpose of this paragraph, effective September 1, 1976, a calendar month in which the employee completes fifteen (15) or more days worked shall be considered a "full month". Effective September 1, 1981, if an employee completes less than fifteen (15) days worked in each of the calendar months at the start and end of the employee's period of employment and such days worked, when added together, exceed fifteen (15) days worked an additional full month shall be considered to be completed. 1 (c) During the probationary period an employee will be informed in writing of the employee's progress at intervals of four (4) months continuous employment or four (4) full months of accumulated non-continuous employment and a copy given to the employee. Also, it is understood that an employee may be released during the first five (5) months of continuous or non-continuous accumulated employment following the commencement date of the employee's employment upon at least thirty (30) calendar days' written notice and during the remainder of the employee's probat ionary period upon at least ninety (90) calendar days' written notice. If requested by the employee, the reason for such release will be given in writing. (d) Upon the completion of the employee's probationary period, a full-time employee shall be credited with two (2) years- seniority if treated under 8.01(a) (i) or one (1) year's seniority if treated under 8.01(a) (ii) An employee who commenced full- time employment with the College directly from the' college's predecessor educational institutions shall be credited for the purpose of this Article with seniority equal to the employee's continuous service in such predecessor institution. The list of predecessor educational institutions referred to herein is attached as Appendix VIII of the Collective Agreement. 8.02 (a) It being understood that the release of an employee during the probation ary period shall not be the subject of a grievance under the Grievance Procedure, an employee who has completed the probat ionary period and is discharged for cause may lodge a grievance in the manner and to the extent provided in the Grievance Procedure. 3 01 16 03112/2007 1:57 PM ;a?~ hltp://library .hicks.com/cgi-bin/library/geUibrary _ocr _lexl?T]TLE... Appendix II PARTIAL-LOAD EMPLOYEES 2. It is agreed that Art icle 8 has no application to partial-load teachers except -5- as referred to in section 8.05 (d) and Section 8.1S(b). Such partial-load teachers may be released upon two (2) weeks' written notice and shall resign by giving two (2) weeks' written notice. 3. For the purpose of determining the service of a partial-load teacher under Section 8.oS(d) a partial-load teacher will be entitled to credit for service from september 1, 1971 (but not earlier) on the basis of one-half (1/2) month's credit for each full month of service up to January 1, 1977 and thereafter on the basis of one-half (1(1) month's credit for each calendar month in which .the employee teaches thirty (30) hours or more. Appendix IV In the administration of Section 8.0S(d) and for that purpose only, a part-time employee shall be considered to have service based on one-quarter (1/4) month's credit respectively for each full month of employ ment with the College. Article 8.05 (d), which is referred to in the above provisions, relates to the relative priority of full-time, partial-load or part-time employees on lay-off. Reference will be made to this provision below, but there is no need to quote it in its entirety. The grievor's service with the College began in 1983 on a part-time basis, and ended with a letter of termination dated september 25, 1986. The precise nature of the grievor's employ ment record is central to this case, so we shall set it out in detail. However, his employment is covered by nearly 20 over lapping payroll authdrization forms, and we have decided to -6- 4 ofl6 03/1212007 I :57 PM ;a~ hltp:l/library .hicks.com/cgi-bin/library/gel__library _ ocr _lexl?TITLE... summarize these for the purpose of our assessment of his rights in this matter. The following is our summary, based on the evidence presented: 1. From September 14, 1983 to September 9, 1984, the grievor was on a series of part-time academic staff appointments. While these specific appointment documents overlap somewhat, it appears that this can be treated as one single stretch of employment, but on a part-time basis only. 2. From September 10, 1984 to January 27, 1985, the grievor was on a partial-load academic staff appointment, which was interrupted by a strike from late September to early November 1984. 3. From January 28, 1985 to January 5, 1986, the grievor was on a series of sessional and partial-load and academic staff appointments, which both parties agree should be treated as continuous sessional employment for the purposes of this grievance. 4. From January 6, 1986 to October 10, 1986, he was on a probationary academic staff appointment, which was terminated by notice of his release by letter dated September 26, 1986, to be effective on October 10, 1986, Based on this employment record, the parties are agreed that the grievor is entitled to count service from January 28, 1985 to October 10, 1986 as service toward the completion of his probationary period. The dispute is whether he can count any other appointment toward his probationary period, and if so how -7- that affects the determination of his probationary status at the time of his release. There are really three aspects to the disputed parts of the grievor's service: 1. Is the grievor entitled to count any of his service prior to January 28, 1985 toward his probationary period? 2. Is the 90 day notice period specified in Article 8.01(c), which in this case was partially worked and partially paid out, required to be counted toward the employee's probation ary period? 3. At the time of the termination of his employment, the grievor had accumulated 18 days of unused vacation, which was paid out by the Employer. Was the grievor entitled to use those 18 days toward his probationary period? The period of service which both parties agree that the grievor worked appears to be one year and 256 days, although there were a few brief' interruptions in the grievor 's sessional appointments and there is scope for arguing for a slightly lower count. As will be seen, however, it is sufficient in this case to take the one year and 256 day period as the basis for con side ration. We turn first to the question of whether the grievor is entitled to count any of his periods of part-time or partial-load employment prior to January 28, 1985. This issue divides into two separate considerations. During 1984, the grievor I s employ ment always fell below the 13 hour per week limit for partial load employees, but during the month of January, because of -8- 5 0116 03112/2007 1 :57 PM l~ http://library.hicks.com/cgi-bin/library/get_library "ocr _lexl?TITLE... additional assignments, his workload in the third week rose to 28 hours, while his workload in the fourth week was at 16 hours. that last week, he began the sessional appoint ment from which service counts. Immediatel y after time his accepted The Union argues first that the provisions of Appendix II, . paragraph 3 entitle the grievor to count his partial-load employment from September to December at one-half month's credit for each of those months. The argument is based first on a compar ison with Appendix IV, which speci fies . that part-time employees are considered to accrue service credits "in the administrat ion of Section 8 . 05 (d) and for that purpose only", and Appendix .11, paragraphs 2 and 3 in which no such restrictive language as "for that purpose only" is found. In our view, however, the effect of reading paragraph 2 of Appendix II, which provides that Article 8 has no application to partial-load teachers except for 8.05 (d) and. 8.15 (b), combined with the service calculation set out in paragraph 3 of that Appendix, was clearly intended to achieve the same result as the wording used in Appendix IV. Given that the probationa ry period calculation is found in Article 8.01, and that Artic le 8 has no application to partial-load teachers except as specified, we are of the view that no credit is given for partial-load service towards the probationary period. The Union also refers, however, to Re Sheridan College and Ontario Public Service Employees Union (Smith), unreported, May 17, 1982 (Weatherill). This suggests that partial-load -9- service may be counted at the half-time basis specified in Appendix II, paragraph 3 for the purposes of determining the position on a seniority list of an employee who has already completed a probationary period. The Employer argues that this case is simply wrong, but in our view it may readily be distinguished in any event from the matter before us. In that case, there is no discussion of counting time as a partial-load employee toward the completion of a probationary period. The concept of "seniority" appears throughout clause 8.05, and it is entirely possible that the board in the Sheridan College (Smith) case was considering it in that context. In any event, there is nothing in the case to suggest that the question now before us was raised before that board and considered before they caine to the conclusion which they did. In our view, the clear words of Appendix II mean that the grievor is not entitled to account any of his partia l-load service toward his probat ionary period, whether or not such service may be used to establish seniority once the probation is completed. We turn next, therefore, to the situation in January 1985. During this period, the grievor taught two weeks for a number of hours which clearly exceeded the definition of partial load employee, which at the time was limited to 13 hours per . oi 16 03/1 2/2007 1:57 PM :a35 F3 htlp://library.hicks.coI11/cgi-bin/library/geUibrary _ ocr _lexl?TlTLE.., week. The issue is whether the grievor can be said to have been teaching "on a regular basis" beyond the definition. ,(- ,ri ~', -'l This matter has been ,dealt with between-th'.e parties in -10 - l,l Re St. Lawrenc~College and Ontario Public Service Employees union (Arsenault), unreported, November 16, 1982 (Brent). At page 7 of that award, the unanimous decision concludes: It is our view that anyone who teaches more than six hours per week and who also cannot be said to teach between seven and 13 hours per week "on a regular basis" must be considered to be a full-time teacher. It is the phrase "on a regular basis", which occurs in Article 3.03(b), which must be given meaning. The award continued to find that in a month when an employee worked for 13 hours per week for 10 teaching days and for 22 hours per week for 11 teaching days, that person could not be said to have worked between six and 13 hOllrs "on a regular basis" during that month. In a recent award, Re Algonquin College and Ontario Public Service Employees Union, unreported, April 26, 1988 (Swan), the present chairman decided that not only the quanti ty but also the quality of the assignment must be considered to decide whether an assignment over the partial-load limit is on a regular basis. In this case, we really have very little evidence from either party to assist us to assess the nature of the extra work assigned. What we are able to infer from the documentation is that it was likely overload work of a non-recurring nature. Some of it, indeed, seems to have involved course outline work and student interviews on a one-time basis. In our view, this can hardly be called a "regular" assignment. We have come to the conclusion that, looked at as a -11 - of~ 03112/2007 1:57 PM ..... . http://library.hicks.com/cgi-bin/library/gel_library _ocr" lex I'?TlTLE,.. ~~ whole, the month of January 1985 must 'I ~.:,I'l' t' b ;'ti~ated ".':;\~~' - as partial-load " employment, and the grievor therefore is.' not entitled to count this service toward his probationary period. The extremely",high workload in the second week must be seen in light of the pattern of the gr''tevor's employment prior to that week, and indeed in light of what occurred after until he began his full-time sessional employment following January 28. On balah~e, we think the Employer is right on this issue. , . The second issue to be considered is' the' 90 day notice period. This notice is required by Article 8.01 (c), and is expr~ssed to be "at least ninety (90) calendar days' written notice" to be given "during the. .probationary period". This matter has been considered in a number of earlier cases involving this collective agreement and its ,predecessors, including Re Ontario College of Regents of Colleges of Applied Arts and Technology and Ci vB service Association of Ontario (1976), 13 L.A.C. (2d) 82 (Weatherill), Re Fanshawe College and Ontario Public Service Employees Union (Safran), unreported, January 21, 1981 (Rayner), Re Durham College of Appl ied Art sand Technologx_ and ,Ontario Public Service Employees Union (McIntyre), un reported, December 6, 1982 (Weatherill) and Re Sheridan College of Applied Arts and Technology and Ohtario Public Service Employees Union (Brackenridge) , unreported, May 8, 1985 (Brunner). All of these cases find, in effect, that the entitle ment to three months' notice is entirely independent of the two year duration of the probationary period, and that a release -12 - within the last three months of the probation period is equally effective as one before, provided always that the full three months' notice must be given. Where the notice period is not to be worked, the cases also conclude that payment in lieu of notice is,sufficient. The Union attacks all of these cases on the basis of the underlying principles, but we are of the view that the decisions outline what is a perfectly reasonable interpretation of all of the language of th~'collective agreement, and that it is an interpretation which has persisted',,:,between the parties through several renegotiations of the collective agreement. Some of these decisions, we observe, have been unanimous. In our parties view, have it would be wrong to disturb a line of relied to regulate their relationship, jurisprudence and which is on of which the such long ->~"""''' . (11] 6 03/1212007 1 :57 PM ;a~45 hup:l/library.hicks.com/cgi-binllibrary/geUibrary _ocr _lexl?T1TLE... standing. In addition, however, we think we should observe that, while the matter is not entirely free of doubt, we would have reached the same conclusion as to the meaning of the collective agreement. We turn finally to the question of whether the grievor is entitled to count the 18 days accrued but unused vacation to which he was entitled as of the termination of his employment toward his probationary period. From the findings we have already made, it will be obvious that our decision on this matter will not be conclusive of anything, but we shall nevertheless respond to the arguments made by counsel. The only provision in the collect i ve ag reemen t to which -13 - we were referred is clause 8.02 (b). That r~fers to the discharge of an employee who has completed the probationary period, so it is of no direct relevance here. It does, however, contemplate that vacation may be paid out in addition to the notice period. While once again there is scope for some doubt, it would appear to be an unusual practice to permit accrued vacation to count toward a proba t i onary period unless specifi cally provided for. in the collective agreement. Under the employment standards legislation applicable to most employment in this province, vacation pay accrues from day to day, and is the subject of a statutory trust. The Union's reasoning would therefore have th?e effect of making any express probationary period reduced by the amount of accrued vacation, surely a rather extraordinary and complicated approach to the measurement of probationary periods. However, the Union also argues that vacation may not be a part of the notice period, because Regulation 286 under the Employment Standards Act provides, in section 11, that the length of notice of termination of employment shall not include any week of vacation without the agreement of the employee terminated. The Employer points out, however, in our view correctly, that Regulation 286 applies to the so-called mass termination provi sions of the Employment Standards Act, and that section 11 must therefore be read as applying to the statutory notice periods set out in that provision. Therefore it cannot have general effect, and it does not apply to the particular circumstances of this case. We find this argument persuasi ve, and we therefore find -i4 - 96(16 03112/2007 1 :57 PM ;a35 ~ hllp://library.hicks.com/cgi-binllibrary/gel_l ibrary _ ocr_lex I?TlTLE... that the 18 days of accrued vacation do not count toward the grievor' s probationary period. In the result, the grievor was still well wi thin his probationary period at the time of his termination of employment, and his grievance against that termination, pursuant to Article 8.02 (a), which has been interpreted in a number of cases involv ing this collective agreement, is not arbitrable. In these circumstances, it is not necessary for us to deal with the Employer's preliminary obj ect ion relating to timeliness. The grievance is therefore denied. DATED AT TORONTO, Ontario this 19th day of January, 1989. I concur "RJ. Gallivan" R.J. Gallivan, Employer Nominee "Jane Bern II Jane Bern, Union Nominee I dissent; see attached ADDENDUM We have received and considered our colleague's careful dissent in this matter, but we regret that we still differ from her. There is, however, one point which she raises which requires us to clarify the basis of the majority award. On the issue of whether the 90 day notice period must be given, in effect, prior to the expiration of 21 months of the probationary period, so that the notice period may be served, day for day, within the two year probationary period, she relies on Re C.S.A.O (Inc.) and The Ontario council of Regents for Colleges of Applied Arts and Technology, et al., unreported, June 18, 1975 (Ont. Div. Ct.), which may be referred to as the "Aitchison cases. She concludes, quoting us, that it would not be -wrong to disturb a line of jurisprudence" when the Divisional Court has spoken so clearly. The line of jurisprudence of which we speak, however, is based upon Re Ontario council of Regents of Colleges of Applied Arts and Technology and Civil. Service Association of Ontario (Inc.), (1976) 13 L.A.C. (2d) 82 (Weatherill). In that case, the majority distinguished the Aitchison case from the facts of the case before it. In Aitchison, the effective date of release was outside the probation period; in 0(,-,---;16 03/1212007 1:57 PM ;a35 ~~ http://library.hicks.com/cgi-bin/library/get_library_ ocr_, tcxt'?TITLE... the second case, the employee was terminated wi thin the last three months of the probation period, but the termination was made of immediate effect, and payment in lieu of notice was provided. The majority concluded that payment in lieu of notice was suffi cient compensa tion for the loss of an actual three months' notice, and that -2- termination of employment during the two year not ice period was sufficient to satisfy the principles set out in the Ai tchison case, even where it took place during the last 90 days of the probationary period. This decision, and in particular its reasoning distinguishing the Aitchison case, was upheld on judicial review by another panel of the Divisional Court in Re C.S.A.O (Inc.) and Ontario Council of Regents for Colleges of Applied Arts and Technology, unreported, March 7, 1977 (Ont. Div. Ct.). The case before us falls squarely into the reasoning of the board of arbitration chaired by Mr. weatherill, which reasoning has received not only the "blessing" of the Divisional Court, but the reasoned concurrence of a number of other boards of arbitration, referred to in our original decision, since that time. As we have observed, the interpretation is not beyond reasonable disagreement, but it is the interpretation upon which the parties have conducted themselves for a decade, and we think it would be wrong to disturb it now. with the greatest of respect for our disagree; as we have already suggested, this issue. colleague, therefor"e, we must continue reasonable people may reasonably do so to on IN THE MATTER OF AN ARBITRATION BET WEE N: ST. LAWRENCE COLLEGE (The Employer) -and- ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The Union) AND IN THE MATTER OF THE GRIEVANCE OF A. ABEL -#87E4S 1 1 v" 16 0311212007 1 :57 PM ;a2~ hllp:l/library,hicks.com/cgi-binllibrary/geUibrary _ ocr "lex t,?TITLE,.. BOARD OF ARBITRATION: Appearances: For the Employer: For the Union: Kenneth P. Swan, Chairman R. J. Gallivan, Employer Nominee Jane Bern, Union Nominee Chris White, Counsel C.G. paliare, Counsel DISSENT I have had an opportunity to review the award of the majority and disagree with a number of the findings as well as the result. At page six, Mr. Swan makes it clear that the parties agreed that the grievor was entitled to count service from January 28, 1985 to October 10, 1986, as service towards the completion of his probationary period. Thus, the grievor had -2- approximately one year and nine months of service toward his probationary period of two years. I find it simpler to deal with this matter in terms of months rather than to say that the grievor had one year and 256 days to his credit. I would have come to a different conclusion than the majority with respect to each of the questions asked. I will simply follow the order as set out in the draft award. Can the Grievor Count Part-Time or Partial Load Em-lovment 1 Z of 16 03/12/2007 I :57 PM ;a~ hllp:l/library.hicks,com/cgi-bin/library/geUibrary _ocr _leXI?TITLE.,. My conclusion is different than those of the majority at pages eight and nine. In my view, both the provisions of Appendix II, Paragraph three and the Re Sheridan College and Ontario Public Service Employees Union (Smith) case lead to the conclusion that the grievor would have been entitled to one-half months' credit for each month of employment from September to December, 1984. The distinction drawn by the majority in the Sheridan College (Smith) case is not one that can be made on a full and fair reading of that decision. Then, for the month of January, 1985, where the grievor worked two weeks in excess of 13 hours per week, coupled with his appointment to a regular full-time position, can only lead to the -3- conclusion that the grievor began working full-time "on a regular basis" at the beginning rather than at the end of that month. Thus, the entire month of January ought to count towards the probationary period as well. Ninety Day Notice Period without question, this aspect of the majority decision has caused me the most amount of concern because the decision is clearly contrary to the plain wording of the collective agreement. Also, the majority has totally ignored a Divisional Court decision squarely on point which contradicts the arbiprudence quoted by the majori ty. The issue is one of whether the employer must give 90 calendar days written notice during the probationary period or whether the employer can give payment in lieu of notice thus shortening the probationary period. The grievor received his letter of termination september 26, 1986, with a purported effective termination date of October 10, 1986. Thus, he received approximately two weeks' written notice. The Union argued that he was entitled to three months' written notice such that he could not have been terminated in the circumstances of this case until at least December 26, 1986. -4- The starting point in considering the validi ty of the Union's argument, is the wording of the collective agreement. Article 8.01(c) reads, in the relevant portions, as follows: "Also, it is understood that an employee may be released during the first five (5) months of continuous or non-continuous accumulated employment 1 3-Df 16 03/1212007 1:57 PM :a35 ~ htlp://library.hicks.com/cgi-bin/library/geUibrary _ocr" lex I'?TITLE... following the commencement date of the employee's employment upon at least thirty (30) calendar days' written notice and during the remainder of the employee's probationary period upon at least ninety (90) calendar days' written notice." It is obvious that the parties contemplated that a probationary employee who had survived five months of the probationary period was entitled to at least 90 days' written notice in order to be terminated. The purpose of such a clause in a teaching context would be to ensure that the teacher had an opportunity to find alternate employment while still maintaining a teaching position. It is obviously clear that it is easier to find a job when one has a job and the parties must have had this simple proposition in mind when they agreed upon the clause in question. It would have been an easy matter to have said that employees were entitled to 90 days' notice had the parties intended that payment in lieu of notice would have been adequate. Rather, the parties specifically stated that the employee was entitled to 90 days' written notice and not money in lieu thereof. The majority has obviously "written out" the requirement of written notice in Article 8.01(c). Amending the collective -5- agreement in this fashion is expressly prohibited under this collective agreement. It may be that the result of the interpretation which the Union advanced and which I accept is that the probationary period is shortened by 90 days but, this appears to be what the parties contemplated. Obviously, this would not work any great injustice upon the employer since the probationary period is a very lengthy two years. Moreover, the Divisional Court clearly dealt with a decision which had erroneously interpreted Article 8.01(c) in the same way as the majority. In that case the Court stated: In our view, the term 'release' must mean the total cessation of the relationship of employer and employee and this cessation of the relationship in this case must occur before the expiration of the two year period. -6- The mere notification that such termination will occur in the future does not of itself terminate the relationship. 4 c. "1 6 03/12/2007 ] :57 PM ;ai~ p hllp:lllibrary.hicks.com/cgi-bin/library/geUibrary ~ ocr _lexl?TITLE... In adopting this view, we recognize the fact that this interpretation of the term 'release' will have the effect of shortening the probationary period to 21 months as it will then be incumbent upon an emPloyer in circumstances like this to give the three months' notice at a time sufficiently distant from the expiration of the probationary period to allow the three months to run within the two year period. I should add as well that. in our view, this interpretation of the agreement is not only the -ro-er one. but also the only interpretation that the lan-ua-e of this aareement could reasonably bear. " (emphasis added) The Civil Service Association of Ontario (Inc.) and The Ontario council of Regents for Colleges of Applied Arts and Technology. et al. (unreported decision of the Divisional Court, June 18, 1975, Zuber, Morden and Reid, JJ. ) In the face of the clear wording of the Divisional Court and the clear wording of Article 8.01 (c) of the collective agreement, it is difficult to understand how the majority has opted for relying upon arbitral awards to the contrary. Thus, it would not be "wrong to disturb a line of jurisprudence" when the Divisional Court has spoken so clearly. -7- Vacation Days I read the provisions of the Em-lovment Standards Act differently than the majority. In my view, Section 11 of Regulation 286 does not apply simply to mass terminations. An employer cannot shorten a notice period by deducting vacation. Therefore, it logically follows that the vacation period must be included in determining the period of employment for the employee in question. I would have found that the 18 days in question should have been counted. Obviously, if the employee had taken the 18 days vacat ion at an earlier time, no one would have argued that he had not completed his two year probationary period simply because he took the amount of vacation that he was entitled to during the two year time frame. In other words, the probationary period is not elongated beyond the two year time frame to include the amount of vacation to which an employee is properly entitled. Accordingly, in my view, the employee has exceeded the probationary period and we should have dealt with the merits of this case in terms of determining whether he 15=uf 16 0311212007 1:57 PM 13"'"" r hllp:/ /1 ibrary .hicks.com/cgi-bin/library/get_library _ocr _lex I?TlTLE... was dismissed for cause. ANE BERN 16"0116 03/12/2007 1 :57 PM " (~r'3S- IN THE MATTER OF AN ARBITRATION BET WEE N: ST. LAWRENCE COLLEGE (The Employer) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The Union) AND IN THE MATTER OF THE GRIEVANCE OF A. ABEL - i87E45 BOARD OF ARBITRATION: Kenneth P. Swan, Chairman R. J. Gallivan, Employer Nominee Jane Bern, Union Nominee Appearances: For the Employer: Chris White, Counsel For the Union: C.G. Paliare, Counsel D I SSE N T I have had an opportunity to review the award of the majority and disagree with a number of the findings as well as the result. At page six, Mr. Swan makes it clear that the parties agreed that the grievor was entitled to count service from January 28, 1985 to October 10, 1986, as service towards the completion of his prObationary period. Thus, the grievor had - 2 - approximately one year and nine months of service toward his probationary period of two years. I find it simpler to deal with this matter in terms of months rather than to say that the grievor had one year and 256 days to his credit. I would have come to a different conclusion than the majority with respect to each of the questions asked. I will simply follow the order as set out in the draft award. Can the Grievor Count Part-Time or Partial Load Em~loyment My conclusion is different than those of the majority at pages eight and nine. In my view, both the provisions of Appendix II, Paragraph three and the Re Sheridan College and ontario Public Service Employees Union (Smith) case lead to the conclusion that the grievor would have been entitled to one-half months I credit for each month. of employment from September to December, 1984. The distinction drawn by the majority in the Sheridan Colleqe (Smith) case is not one that can be made on a full and fair reading of that decision. Then, for the month of January, 1985, where the grievor worked two weeks in excess of 13 hours per week, coupled with his appointment to a regular full-time position, can only lead to the ,. - 3 - conclusion that the grievor began working full-time "on a regular basis" at the beginning rather than at the end of that month. Thus, the entire month of January ought to count towards the probationary period as well. Ninety Dav Notice Period without question, this aspect of the majority decision has caused me the most amount of concern because the decision is clearly contrary to the plain wording of the collective agreement. Also, the majority has totally ignored a Divisional Court decision squarely on point which contradicts the arbiprudence quoted by the majority. The issue is one of whether the employer must give 90 calendar days written notice during the probationary period or whether the employer can give payment in lieu of notice thus shortening the probationary period. The grievor received his letter of termination September 26, 1986, with a purported effective termination date of October 10, 1986. Thus, he received approximately two weeks' written notice. The Union argued that he was entitled to three months' written notice such that he could not have been terminated in the circumstances of this case until at least December 26, 1986. ~~~ - 4 - The starting point in considering the validity of the union I S argument, is the wording of the collective agreement. Article 8.01(c) reads, in the relevant portions, as follows: "Also, it is understood that an employee may be released during the first five (5) months of continuous or non-continuous accumulated employment following the commencement date of the employee's employment upon at least thirty (30) calendar days' written notice and during the remainder of the employee's probationary period upon at least ninety (90) calendar days' written notice." It is obvious that the parties contemplated that a probationary employee who had survived five months of the probationary period was entitled to at least 90 days J written notice in order to be terminated. The purpose of such a clause in a teaching context would be to ensure that the teacher had an opportunity to find alternate employment while still maintaining a teaching position.. It is obviously clear that it is easier to find a job when one has a job and the parties must have had this simple proposition in mind when they agreed upon the clause in question. It would have been an easy matter to have said that employees were entitled to 90 days' notice had the parties intended that payment in lieu of notice would have been adequate. Rather, the parties specifically stated that the employee was entitled to 90 days' written notice and not money in lieu thereof. The majority has obviously "written out" the requirement of written notice in Article 8.01 (c). Amending the collect ive - 5 - agreement in this fashion is expressly prohibited under this collective agreement. It may be that the result of the interpretation which the Union. advanced and which I accept is that the probationary period is shortened by 90 days but, this appears to be what the parties contemplated. Obviously, this would not work any great injustice upon the employer since the probationary period is a very lengthy two years. Moreover, the oi visional Court clearly dealt with a decision which had erroneously interpreted Article a.OI(c) in the same way as the majority. In that case the Court stated: " In our view, the term 'release' must mean the total cessation of the relationship of employer and employee and this cessation of the relationship in this case must occur before the expiration of the two year period. - 6 - The mere notification that such termination will occur in the future does not of itself terminate the relationship. In adopting this view. we recoanize the fact that this interpretation of the term 'release' will have the effect of shortenina the -probationarY period to 21 months as . it will then be incumbent upon an emploverin circumstances like this to aive the three months' notice at a time sufficientlY distant from the expiration of the probationary period to allow the three months to' run within the two year period. I should add as well that. in our view. this interoretation of the agreement is not onlY the proper one. but also the onlvinteroretation that the lanquaqe of this agreement could reasonabl v bear." (emphasis added) The civil Service Association of OntariQ lInc.) and The ontario council of Reaents for Colleqes of Applied Arts and Technoloav. et 2L... (unreported decision of the Divisional Court, June 18, 1975, Zuber, Morden and Reid, JJ. ) In the face of the clear wording of the Divisional Court and the clear wording of Article, 8.01 ec) of the collective agreement, it is difficult to understand how the majority has opted for relying upon arbitral awards to the contrary. Thus, it would not be "wrong to disturb a line of jurisprudence" when the Divisional Court has spoken so clearly. " ~-~.., - 7 - Vacation Davs I read the provisions of the EmDloyment Standards Act differently than the majority. In my view, Section 11 of 1 - ~ Regulation 286 does not apply simply to mass terminations. An employer cannot shorten a notice period by deducting vacation. Therefore, it logically follows that the vacation period must be included in determining the period of employment for the employee in question. I would have found that the 18 days in question should have been counted. Obviously, if the employee had taken the 18 days vacation at an earlier time, no one would have argued that he had not completed his two year probationary period simply because he took the amount of vacation that he was entitled to during the two year time frame. In other words, the probationary period is not elongated beyond the two year time frame to include the amount of vacation to which an employee is properly entitled. Accordingly, in my view, the employee has exceeded the probationary period and we should have dealt with the merits of this case in terms of determining whether he was dismissed for cause. ~" .~ ~ r--" r-~ '-1 ~" ,- -~ ~ , ~~ -, ,- 1 ~ ~ , , , J - j E'-'3 P \ d ("X rl c_,\J',-, /'"'1 (.~/~ IN THE MATTER OF AN ARBITRATION RECEIVED BY JUN 2 fi 1996 BET WEE N: HUMAN RESOURCES SE::Rf:TARIAT ONTARIO COUNCIL OF Ri:GENTS ST. CLAIR COLLEGE (The College) and ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The Union) AND IN THE MATTER OF THE GRIEVANCE OF F. CHESTERTON - #94E243 BOARD OF ARBITRATION: Kenneth P. Swan, Chairman George Metcalfe, College Nominee Jon McManus, Union Nominee APPEARANCES: For the College: Barry Brown, Counsel Kurt Moser Kevin Mailloux For the Union: Nelson Roland, Counsel F. Chesterton, Grievor J. Jones, Steward L. Smith, Steward A WAR D A hearing in this matter commenced in windsor on January 9, 1995, and continued on April 11 and 17, August 30 and October 11, 1995. At the outset, the parties were agreed that the board of arbitration had been properly appointed, and that we had juris- diction to hear and determine the matter at issue between them. That matter is the grievance of Mr. Frank Chesterton, dated May 20, 1994, which is in the following terms: I grieve termination during second year of probation without cause and with work for which I am qualified available and being performed by others with less service than I. The grievor is certified as a General Machinist in the province of Ontario. He apprenticed as a Machinist in the United Kingdom, and worked at a variety of skilled jobs prior to immigrat- ing to Canada in 1982. He continued his employment as a trades- person until 1992, when he was first engaged as an instructor at the Industrial Resource Centre on the Rhodes campus of the College. His duties there related to the Industrial General Machinist course; in relation to which he taught a number of skills on various pieces of equipment. In the autumn of 1993, an unexpected vacancy was created in the Contract Training department when another faculty member was suspended because of pending criminal charges. The vacancy was of an unknown duration, and the grievor was hired on a sessional teaching contract from October 5, 1993 to March 31, 1994 to assume most, but not all of the duties of the absent faculty member. In !E:i! ( 2 particular, the grievor was not equipped to teach Computer Numerical Control (CNC) machining skills. While he asserted in his evidence that he could have learned to do so, the only previous experience on which he could rely was a period of time working on a numerically controlled (NC) boring mill in England during the 1960s and 70s, and we conclude that thegrievor would have needed significant re-training in order to attain CNC skills. As a consequence, the CNC aspects of the teaching load which he assumed at this time were handled by Larry Smith, another faculty member of the Industrial Resource Centre, and the Union Steward for the Rhodes campus. The sessional contract was dated October 6, 1993, and actually signed by the grievor on October 22, 1993. Sessional employment is covered by Appendix VIII of the collective agreement, which defines a sessional employee as "a full-time employee appointed on a sessional basis for up to 12 full months of continuous or non-continuous accumulated employment in a 24 calendar month period". Paragraph 3 of Appendix VIII, however, provides 'for what is sometimes called "roll-over" into probationary employment. That paragraph is as follows: If a sessional employee is continued in employment for more than the period set out in Appendix VIII, I, such an employee shall be considered as having completed the first year of the two year probationary period and thereafter covered by the other provisions of the Agreement. The balance of such an employee's probation- ary period shall be 12 full months of continuous or non- continuous accumulated employment during the immediately following 24 calendar month period. ~::!:l 3 The combination of the grievor's earlier teaching experience at the College, coupled with the sessional appointment beginning October 5, 1993, had the effect of satisfying the provisions of Article 8, paragraph 3 effective January 15, 1994. It is not clear to what extent this factor was clearly in the minds of those who were involved in hiring the grievor to replace the suspended employee in October 1993. It seems likely that factor was overlooked in the need to fill the position quickly, particu- larly because the Chair of the Contract Training Department, Mr. Jack Costello, was to be replaced in January 1994 by Mr. Curt Moser, and matters were somewhat in flux. In any case , this consideration was recognized at the latest by December 22, 1993, at which time a revision to the appointment letter was created. That revision included the following sentence: Effective 1994-01-15 your status will change from Sessional Instructor to Probationary. Please note that the completion date of 1994-03-31 does provide proper notice as per the Academic Collective Agreement. Mr. Kevin Mailloux, who was Director of Human Resources for the College at the material time, testified that the revised letter was produced after it was discovered that the original sessional contract would have the effect of allowing the grievor to roll-over to probationary status. There a.re pol icies and pro- cedures established at the College for recruitment and selection, and Mr. Mailloux testified that the implementation of those policies requires that roll-overs be approved by a member of the College's Executive Council, in effect the Vice-President. When it ~ 4 appeared that the grievor's new sessional appointment would have the effect of rolling him over into probationary status, Mr. Mailloux took the matter to a member of the Executive Council, although he cannot now remember who, and approval was granted to allow the roll-over to take its course. Mr. Mailloux's testimony was that such approval would have to come from the President. Therefore, when the revision to the appointment letter was issued on December 22, 1993, it was in effect a considered ratification of the effect of a previously unconsidered administrative act. ~ , There is no doubt that the College takes the roll-over matter very seriously. Some sense of how seriously may be seen from a memorandum dated March 1, 1995 from the President of the College to all members of the Executive Council on the subject. While this memorandum was issued after the grievance, and indeed after the present arbitration had begun, its trenchant tone casts some light on one of the arguments to be made by the Union, and we therefore reproduce it here: You are aware of my policy on staff rollovers to full time status. The restrictions on hiring and prohibition of unauthorized rollovers predate my arrival, and have been expressed at executive Council and in my presenta- tion to all managers. At the most recentEC meeting, I had occasion to express my feelings on two violations which occurred, and the lack of early warning and alternative solutions which are required to be provided by managers. I am led to believe that there are at least five more staff vying for full time status because their workloads have qualified them for such. I also under- stand that the managers involved have been encouraging these people to seek full time status themselves rather than have the managers represent them. I do not consider such practices qualify as either management or leader- ship, but the abrogation of responsibility. If these rollovers materialize, I will hold you personally ~ 5 responsible. I will also hold the managers between you and the individuals who rollover, or who are potential rollover candidates, responsible. The late notice to EC of potential rollover problems is not an excuse or a reason to proceed without holding those who failed to manage accountable. You may wish to discuss this with the candidates you are interviewing for administrative positions. In the result, therefore, by the operation of Appendix VIrI of the collective agreement, the grievor became a probationary employee effective January 15, 1994. That caused him to be entitled to the benefits of the collective agreement as they apply to probationary employees, and also caused him to raise the question of whether his workload should be charted on a Standard Workload Form (SWF) , an exercise which would apparently entitle him to some lieu time off in order to compensate for an overload. This issue became a matter of disagreement between the grievor and Mr. Moser which the grievor alleges to be part of the real reason for terminating his employment. We shall return to the evidence on this issue below. As March 1995 approached, discussions were taking place among the Human Resources office and the management of the Rhodes campus. The grievor's original appointment to March 31 would terminate about a month before the course with which he was involved would end, and there was some thought that it would be unfair to change instructors so close to the end of the program. On the other hand, a number of items of dissatisfaction had arisen wi th respect to the grievor' s performance, according to the ~ 6 College's evidence. His inability to teach CNC COlJrses was an ongoing concern, one which was known from the beginning. In addition, however, there were concerns about the extent to which he was exercising proper supervision over his students, and concerns about his consumption of alcohol over lunch breaks. The grievor denies the latter allegations, and we shall deal with that issue below as well. Finally, however, it was decided to extend the grievor's contract by one month, and a new appointment letter dated March 9, 1994 was sent, in the following terms: This is to confirm that your current employment contract has now been extended to 1994-04-29. I am pleased to inform you that your original lay-off scheduled for 1994-03-31 has now been deferred until 1994-04-29. All other conditions of employment will remain unchanged. In the result, therefore, the grievor taught until the end of the current course on April 29, 1994 and thereafter was glven no further teaching assignments and was treated as termin- ated. There appears to have been no attempt to 'consider a recall for the gri~vor; he was simply allowed to drift away while the grievance was processed and referred to arbitration. There is obviously a considerable degree of confusion about the grievor's precise status at the time in question. At the hearing, however, counsel for both parties acknowledged that by April 29, 1994 he was a probationary emp~oyee, having attained that status by the operation of paragraph 3 of Appendix VIII on January 15, 1994. It is therefore of importance to set out the provisions 7 of the collective agreement which bear upon probationary status, and upon the other issues which this grievance raises. Those provisions are as follows: Article 1 RECOGNITION 1.01 The Union is recognized as the exclusive collective bargaining agency for all academic employees of the Colleges engaged as teachers, counsellors and librarians, all as more particularly set out in Article 14, Salaries, except for those listed below: (i) Chairs, Department Heads and Directors, ( i i) persons above the rank of Chair, Depart- ment Head or Director, (iii) persons covered by the Agreement with the Ontario Employees Union in the bargaining unit, Memorandum of Public Service support staff (iv) other persons excluded by the legisla- tion, and (v) teachers, employed basis. counsellors . and on a part-time or librarians sessional NOTE A: Part-time in this context shall include persons who teach six hours per week or less. NOTE B: Sessional in this context shall mean an appointment of not more than 12 months duration in any 24 month period. Article 2 STAFFING 2.01 The Colleges shall not reclassify professors as instructors except through the application of Article 27, Job Security. 2.02 The College will give preference to the designation of full-time positions as regular rather than partia l-load teaching pos i tions subj ect to such oper- ational requirements as the qual i ty of the programs, attainment of the program objectives, the need for E~ 8 special qualifications and the market accepta-ollity of the programs to employers, students, and the community. 2.03A The College will give preference to the designation of full-time positions as regular continuing teaching positions rather than sessional teaching positions including, in particular, positions arising as a result of new .post-secondary programs subject to such operational requirements as the quality of the programs, enrolment patterns and expectations, attainment of program objectives, the need for special qualifications and the market acceptability of the programs to employers, students, and the community. The College will not abuse sessional appointments by failing to fill ongoing positions as soon as possible subject to such operational requirements as the quality of the programs, attainment of program objectives, the need for special qualifications, and enrolment patterns and expectations. 2.03B The College will not abuse the usage of sessional appointments by combining sessional with partial-load service and thereby maintaining an employ- ment relationship with the College in order to circumvent the completion of the minimum 12 months sessional employment in a 24 month period. 2.03C If the College continues a full~time position beyond one full academic year of staffing the position with sessional appointments, the College shall designate the position as a regular full-time bargaining unit position and shall fill the position with a member of the bargaining unit as soon as a person capable ofperforrning the work is available for hiring on this basis. Article 27 JOB SECURITY 27.01 On successful completion of the probationary period, a full-time employee shall then be appointed to regular status and be credited with seniority equal to the probationary period served. Probationary Period 27.02 A1 A full-time employee will be on probation until the completion of the probationary period. This shall be two years' continuous employment except as amended in this Article. 9 27.02B The probationary period shall also consist of 24 full months of non-continuous employment (in periods of at least one full month each) in a 48 calendar month period. For the purposes of 27.02 B, a calendar month in which the employee completes 15 or more days worked shall be considered a "full month". If an employee completes less than 15 days worked in each of the calendar months at the start and end of the employee's period of employment and such days worked, when added together, exceed 15 days worked, an additional full month shall be considered to be completed. 27..02C During the probationary period an employee will be informed in writing of the employee's progress at intervals of four months continuous employment or four full months of accumulated non-continuous employment and a copy given to the employee. Also, it is understood that an 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 upon at least 30 calendar days' written notice and during the remainder of the employee's probationary period upon at least 90 calendar days' written notice. If requested by the employee, the reason for such release will be given in writing. 27.02D The Union Local shall be advised of the date on which an employee completes the probationary period. Discharge 27.14A An employee being discharged who has completed the probationary period shall be notified in writing by the College President or the person(s) the 'College President designates for that purpose. When the reasons for discharge of the employee are no such as to warrant immediate discharge, the College will give 90 calendar days' written notification. Any vacation entitlement of an employee shall be paid in addition to the 90 days' notice period or to any payment in lieu thereof. 27.14B It being understood that the release of an employee during the probationary period shall not be the subject of a grievance under Article 32, Grievance Procedures, but may be subject to the internal complaint process as referred to in 7.02(iii), an employee who has completed the probationary period and is discharged for 10 causemayu lodge a. grievance in the manner--,aRat0 the extent provided in Grievance Procedure. It is of some passing interest to observe that the lay- off and recall provisions, found in clause 27.05 to 27.11, apply only to full-time employees who have completed the probationary period; those provisions are thus not applicable to someone in the grievor's position at the time his employment terminated. The Union relies on the award in Re Reqional Municipalitv of ottawa-Carleton and Ottawa-Carleton Public Emplovees Union, Local 503 (1987), 31 L.A.C. (3d) 422 (Gorsky). At page 430, the award sets out the following standards for the treatment of employees during a probationary period: There was no cause furnished for terminating the grievor except for the completion of the term for which he had been hired. The employer never considered the grievor to be a probationary employee who might, on completing six consecutive calendar months of service, as defined in art. 9.3, become a seniority employee. The employer did not do so because it was of the view that it did not have to treat the grievor as it would a proba- tionary employee. That is, to genuinely consider him for seniority employment, wherein the employer would consider a number of matters including questions of compatibility and potentiality: cf. Brown and Beatty, Canadian Labour Arbitration, 2nd. ed. (1984) para. 7:5020, at p. 510. Before terminating the grievor, the employer would have to establish that the' grievor was, in good faith, assessed as being suitable or unsuitable for the attain- ment of seniority status. It cannot be said that the employer acted in good faith, here, as it had no inten- tion of furnishing the grievor with "a fair opportunity to demonstrate whether or not. . . [he]. . . possesses the appropriate qualifications and suitability for permanent employment and that the employer had made a fair assess- ment of [his] qualifications arid suitability for perma- nent employment": see Re Pacific Western Airlines Ltd. and C.A.L.F.A.A. (1981), 30 L.A.C. (2d) 68 (Sychuk) at p. 76. At the very least, the employer, under the collec- tive agreement, is required to bona fide consider the E=3 c:. ~ 11 grievor for permanent employment following the probation- ary period. As limited as the rights or a probationer are, he/she is entitled to be considered during the probationary period for permanent employment. I do not have to go any farther than this. As the grievor was never considered for permanent employment, being treated as a temporary employee who need not be considered for permanent employment, my finding is limited to the issue presented to the board. We observe, however, that the collective agreement language on which this decision was based is significantly different from the language in the collective agreement before us. That language has been interpreted by other boards of arbitration, and has been the subject of judicial review proceedings as well. We propose here simply to review briefly the central elements of that jurisprudence before proceeding to apply the language of the collective agreement to the grievor's situation. In Re st. Lawrence Colleqe and ontario Publ ic Service Employees Union (1987), 32 L.A.C. (3d) 322 (Brent), the board of arbitration discussed the award in Re Seneca Colleqe and Ontario Public Service Employees Union (Hacker), unreported, September 17, 1986 (Swan), an award written by the present chair. The Seneca Colleqe award discussed the implications of two well-known court decisions, Re Council of printinq Industries of Canada and Toronto printinq Pressmen and Assistants' Union, No. 10 (1983), 149 D.L.R. (3d) 53 (C.A.), leave to appeal to S.C.C. refused 52 N.R. 308n., and Re Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association (1981), 124 D.L.R. (3d) 684 (C.A.), leave to appeal to S.C.C. 34 N.R. 449n. The st. Lawrence Colleqe board quoted the following passages from the Seneca Colleqe 12 award, which it then applied to the facts before it: While matters of this nature ought not to be decided in the abstract, in the absence of facts, we think it is a reasonable interpretation of this provision [the prede- cessor of clause 27.02 (c)] that conduct in bad faith intended to subvert the protections given to probationary employees by this clause, or to avoid the obvious obligations of the employer under this clause, could be a breach of the clause. Since the grievor has alleged, in her grievance, bad faith in respect of her release on probation, and her counsel has identified, in the course of argument, that the bad faith was in relation to the employer's obligations under [what is now clause 27..02 (c) ], we think that the grievor is entitled to offer her proof of this allegation so that we can assess . . . whether or not there has been a breach of that clause. As a matter of contractual interpretation, there- fore, we have found that the grievor is entitled to pursue her grievance to the extent that it alleges bad faith in the administration of her probationary employ- ment, and to the extent that it alleges discrimination. In respect of both of those allegations, the onus is on the grievor to make out her case. The grievor is not entitled to pursue, however, her allegation that her dismissal was not for just cause, and the employer is put to no obligation to demonstrate that it had just or any cause for releasing or dismissing her. The st. Lawrence College award concluded that this statement ot the proper test was intended to convey the meaning of the following paragraph from the Divisional Court in Re Municipali- ty of Metropolitan Toronto and Canadian Union of Public Employees, Local 43, an unreported decision which is, however, summarized at 9 A.C.W.S. (2d) 347. That decision, which is quoted at pp. 328-329 of the st. Lawrence Colleqe case, includes the following sentence: A probationary employee would be entitled to succeed on a grievance in relation to discharge only if he were able to affirmatively establish that the action of the ~ ~ . 13 employer was taken in bad faith in the sense that the decision was motivated by unlawful considerations or resul ted from management actions which precluded' the probationary employee from doing his best. This test, which the st. Lawrence Colleqe award charac- terizes as lIillegality or obstructionll, appears on the face of it to be a very narrow reading of the IIbad faithll concept identified in the Re Seneca Colleqe case. However ,the narrower test has been applied in other cases, including Re Centennial College and ontario Public Service Employees Union (preliminary award), unreported, December 8, 1988 (Samuels). In that award, the board of arbitra- tion adopted the st. Lawrence Colleqe test, and made the following statement in so doing: IIBad faith" is not simply lIunfairnessll or "unreasonable- ness II , but is conduct which goes beyond these two circumstances. Bad fai th involves' conduct which 1S inimical to the contractual relationship itself. It involves illegality or obstruction. The st. Lawrence Colleqe award, however, was the subject of an application for judicial review. While the decision of the ontario Divisional Court 1n that matter is not reported, the following note appears at 41 L.A.C. (4th) 128: Upon application for judicial review, the above-noted award was quashed by the ontario Divisional Court in a decision dated February 17, 1989 (Campbell, Reid and O'Brien J.J. [unreported]). The Court held that the board of arbitration erred in limiting its jurisdiction to the tests of illegality and obstruction in considering whether the grievor, a probationary employee, had been terminated in bad faith. The Court found that the collective agreement imposed a code of positive obliga- tions on the employer with respect to the treatment of probationary employees; and for that reason. it concluded ~_~ I , ' 14 that the board of arbitration had jurisdiction to consider bad faith in a broader sense. The Court therefore remitted the matter to the board of arbitration to determine whether the conduct of the employer involved bad faith in that broader sense. In a decision dated November 8, 1989 [16 C.L.A.S. 71], the board of arbitra- tion found that the employer's power to release the grievor on probation had been exercised in bad faith, in that the employer had failed in its contractual obliga~ tion to give reasons for the release. It would therefore appear that the Divisional Court has simply reminded the board of arbitration in the st. Lawrence Colleqe case of the paramountcy of the language of the collective agreement itself. That paramountcy appears to have been recognized in the Seneca Colleqe case, which uses the language "conduct in bad faith intended to subvert the protections given to probationary employees by this clause, or to avoid the obvious obligations of the Employer under this clause". In conclusion, therefore, we are entitled simply to apply here the test of bad faith as set out in the Seneca College award. In our view, what occurred here is that, sometime after January 15, 1994, the College found itself with a probationary employee whose services it did not wish to retain. The reasons which it advanced for corning to that conclusion included the grievor's inability to teach CNC machining, as well as a general absence of state-of-the-art technological skills which the College would have preferred to have in an instructor being considered for a permanent appointment. It also had concerns about the grievor's attentiveness to his supervisory responsibilities for students engaged in learning to operate inherently dangerous machinery, ~_:~ . 15 and about the grievor' s consumption of alcoholic 'beverages at lunch, thus further reducing the College's confidence in his supervisory capacity. These are all, in our view, legitimate concerns. The Union's position, however, is that they are essentially trumped up after the fact, and that the real reason for the College's decision . was either the animosity which had arisen between the grievor, assisted by Mr. Smith, and Mr. Moser, or the application of a College policy not to allow unauthorized roll-overs to continue. We must therefore consider first of all the validity of the College's ostensible reasons, and then the validity of the Union's allegations of other, unstated motives for the action which was taken. As to the grievor's lack of current technological knowledge and skills, related in particular to CNCprocesses but not restricted to that, we think the evidence makes clear that it was a legitimate concern. Nothing in the evidence of the grievor gave us any confidence that he actually had skills of such currency, or that he could gain them with any speed. In our view, the evidence makes it clear that the grievor had a skill set sufficient to teach the non-CNC elements of the course which he picked up, but certainly not a skill set which would make him a desirable candidate for continued employment on a permanent basis without some significant re-training. Nothing in the collective agreement places any obligation on the College to provide re- training to probationary employees. ~ 16 As to the matter of the consumption of alcohol, while the grievor denies it, three College witnesses testified that they noticed alcohol on the grievor's breath from time to time during the afternoon, and it was apparently a matter of some discussion among them. The evidence of one of these employees was subjected by the Union to considerable criticism because of the date at which a wri ttenreport of such observations was made, and a degree of apparent animosity between that employee and the grievor. Nevertheless, there is sufficient evidence at the very least to indicate that there was a legitimate concern which would not fall into the category of bad faith. It is common ground that no member of management had any discussion with the grievor about consumption of alcohol over the lunch break. It appears that the reason for this is that the grievor's termination at the end of the course for which he had been retained had already been decid€d on the basis of a general lack of qualifications for permanent employment, and that it was decided not to deal with the embarrassment of confronting the grlevor on this issue. We think we should observe, in passing, that if this were the sole reason for releasing the grievor on probation, it might very well constitute bad faith to simply ignore this issue without bringing it to the grievor's attention. On the other hand, there is evidence that there was a College policy about consumption of alcohol over the lunch period, and that this policy had been brought to the grievor's attention by Mr. Smith, who had indicated to him his view that such conduct would be unpro- ~. OJ 17 fessional. Taken as a whole, therefore, the evidence-en,th-is issue may well disclose a certain degree of undue reticence on the College's part, but does not disclose bad faith. The Union's two assertions of improper motive must also be considered. As to the assertion that Mr. Moser was somehow so angered by the dispute about the SWF that he retaliated against the grievor, that assertion simply does not hold up. While there had been discussions before, the formal exchange of memoranda on the subject occurred on April 15, 1994, when the grievorwrote to Mr. Moser, and on April 19, 1994 when Mr. Moser replied. By that time, on the basis of all of the evidence, Mr. Moser and his superiors, in consultation with the Human Resources Department, had already considered the grievor's case, and the grievor had been given notice that his employment would be extended until the end of April and no longer. As to the issue of a College policy against unauthorized roll-overs, while the College denies that such a policy exists, it patently clear to us that the College is indeed anxious to prevent a roll-over to probationary status occurring through the kind of inadvertence that accompanied the grievor's case. Indeed, we think that the College should have such a policy, and should ensure that only persons whom it intends to consider seriously as permanent full-time employees should be allowed to gain probationary status. To treat probationary status less seriously would be incompatible with the obligations which the College has assumed under Article 2, and would be clearly unfair to the individuals concerned. What 18 occurred in the present case is that, following an-inadVertent roll-over to probationary status, the College made a consideration of its obligations to the grievor, and decided that it did not wish ~ "") to pursue a permanent full-time relationship with him. Had the contract before it turned into a probationary contract by the passage of time. Insteaq, the College elected to keep him until the end of the course, and then to deal with his case as a probationary employee. In our view, therefore, there simply is not sufficient evidence of any of the allegations made by the Union to found a case of bad faith against the College. The worst that could be said about the College is that the administration of the grievor's employment was inattentive. Once the full implications of that inattention had been discovered, the College carried on with the obligations which it had undertaken, and did not attempt to escape their implications, except, as we shall see, in one material respect. Once the grievor had become a probationary employee, he was entitled to compliance by the College with the provisions of clause 27. 02C. Since four months had not elapsed since the establishment of the probationary period by the time of the grievor's termination, we do not think that it could be said that the obligation to issue the grievor written progress reports had yet arisen, so that the failure to do so, which is here admitted, 19 would constitute a breach of this provision. On the other hand, the effect of the roll-over was that the grievor became entitled to "at least 90 calendar days' written notice", and if requested by him, the reason for his release was required to be given in writing. There is no evidence that the grievor ever invoked the requirement for reasons in writing, but it is our view that there was a breach of the requirement for 90 days' written notice. According to evidence which we accept, the College considered the continuing employment of the grievor beyond the end of March, and decided that it would extend his employment to April 29, but no longer. This is communicated to the grievor by a letter dated March 9, 1994. In doing so, the College simply repeated an error which it had made throughout the process in dealing with the grievor's case. Both of the letters appointing the grievor to the position from which he was terminated were based upon the College's usual form of sessional appointment. The fact is, when the grievor rolled over to probationary status, he became a probationary employee and therefore was an employee on an indefinite term, rather than an employee on a fixed contract. In our view, therefore, the College could no longer rely after January 15, 1994 on the termination date set out 1n the appointment letter of October 6, 1993 and reiterated in the revision dated December 22, 1993, as constituting appropriate notice of release. For one thing, it was clearly intended not to be notice of release at all, -:: ~ 20 but to be notice of a fixed contractual term. When thegrievor became probationary, and thus on an indefinite term of employment, the College was required to act affirmatively if it wished to give him notice of release. The only attempt to do so was the letter of March 9, 1~94, which certainly did not constitute 90 days' notice of release, and indeed did not constitute notice of release at all, since it purported to rely on notice already given at a time when the grievor was not a probationary employee. In our view, therefore, the College was in breach of its obligations under clause 27.02C to the extent that it failed to give the grievor three months' notice. That breach is one which can be cured in damages. It is not a breach which entitles the grievor to continued employment or ln particular to the kind of continued employment envisaged by the Union, namely a continued altered teaching load to accommodate the fact that the grievor had no CNC qualifications and was therefore unable to teach the entirety of the teaching load which he was engaged to pick up. In the result, the present grievance must be dismissed to the extent that it alleges bad faith in the termination of the grievor's employment, but must be allowed to the extent that the grievor did not receive the notice to which he was entitled pursuant to the collective agreement. We therefore order that the grievor be compensated by a payment equivalent to 90 calendar days of salary and benefits. With the agreement of the parties, we retain jurisdiction to whatever extent is necessary to bring this matter to a full and final conclusion. o .~ .:~ - I concur I concur 21 DATED AT TORONTO this 17th day of June, 1996. ~~ Ke neth P. Swan, Chairman "Georqe Metcalfe" George Metcalfe, College Nominee "Jon McManus" Jon McManus, Union Nominee ~ r--"'"'J :~ ,- ~ c , ~ -" , , :: .] :~\14 - http://library,hicks.com/cgi-bin/library/geUibrary_ ocr _lexl?TITLE... IN THE MATTER OF AN ARBITRATION BETWEEN ALGONQUIN COLLEGE (Hereinafter referred to as the "Employer") AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION (Hereinafter referred to as the "Union ") RE: Grievance of Janet Mullins INTERIM AWARD BOARD OF ARBITRATION Loretta Mikus, Chair Robert Gallivan, Employer Nominee Ron Cochrane, Union Nominee APPEARANCES FOR THE EMPLOYER Ms. Delores Barbini, Counsel APPEARANCES FOR THE UNION Mr. Gavin Leeb, OPSEU Grievance Officer DATE OF AWARD June 28,1998 C- The grievor, Janet Mullins, was hired by the College on August 14, 1995 as a full-time Professor for the Environmental Technology Program (hereinafter referred to as "Program"). She was subsequently.terminated, which precipitated the instant grievance. The parties provided the Board with the following Agreed Statement of Facts. In the MATTER of an Arbitration' on behalf ofJ. Mullins BETWEEN: ALGONQUIN COLLEGE (the "College") 1 a( 20 0311212007 1:28 PM c~J4 . ~--~ htlp://library.hicks.com/cgi-bin/library/geUibrary _ocr _lext?TITLE... . - and - OPSEU (the "Union") AGREED STATEMENT OF FACTS 1. Janet Mullins (the "Grievor") was hired by the College effective August 14, 1995 as a full-time Professor for the Environmental Technology Program (the "Program,t). 2. From August 14 through August 18, 1995, the Grievor attended the "Eastern College Teacher Development Program" training seminar in Kingston, Ontario, at the direction of the College. 3. Accordingly, the Grievor did not commence teaching at the College until August 28, 1995. 4. The Environmental Technology Program was a new program introduced in September of 1994. The Grievor was the only full-time Professor employed by the College for this Program. 5. The Grievor taught from August 28, 1995 through to December 4, 1995. Thereafter, she was on pregnancy leave until March 29, 1996 and on parental 1 2 2 0(20 03/12/2007 1 :28 PM ~aJJ 4 ~ , hllp://library .hicks.com/cgi-binllibrary/get_library _ocr_lex t?TlTLE... ;... :., leave from April 1, 1996 to May 3, 1996. The Grievor was again on parental leave from June 10,1996 through to July 2,1996 and then on vacation from July 12, 1996 to August 9,1996. The Grievor returned to work thereafter and commenced teaching on August 26; 1996. 6. Between May 3, 1996 and June 10, 1996, the Grievor attended Professional Development . courses and prepared for her classes, but she did not teach during this period. 7. The Grievor marked student exams while on pregnancy leave in December 1996. 8. From August 28, 1995 to December 4, 1995 the College was satisfied with the grievor's performance and there had been no concerns raised by anyone at this time regarding her performance as a Professor. 9. Sometime in late November or early December 1996, the Chair of Chemical and Health Technology (Pierre de Champlain, hereinafter the "Chairt,) who is responsible for the Program and the Grievor's performance, received a complaint from a student of the Program. The Chair advised the Grievor of this complaint and it was agreed that they would wait until the Course Assessments from the students were received and then the matter would be discussed further. The Grievor does not recall this conversation however she does not dispute it occurred. 10. The Course Assessments were received from the students enrolled in the Program at the end of January 1997. In the interim, further complaints from students enrolled in the Program had been received by the Chair regarding the Grievor. 11. In attendance at the February 12, 1997 were the Chair, the Grievorand two representative students from the Program. The students raised their concerns regarding the Grievor and the Program. The Grievor was given an opportunity to respond to the concerns raised at the meeting. The Chair and the Grievor met with the entire class (approximately 16 students) on February 20,1997 at which time numerous concerns were raised by the students about the Grievor and the Program. 12. The Chair provided the Grievor with a Memorandum, subject "Your Evaluation" and dated March 26, 1997 (attached as Exhibit #4). 3 01'20 03/1 212007 1:28 PM ~~14 hUp://library.hicks.com/cgi-bin/library/get_library _ocr _lexl?TlTLE... 13. The Grievor provided the Chair with the attached memorandum dated March 30, 1997 (attached as Exhibit #5). 3 The Exhibit 4 referred to in the Agreed Statement of Fact refers to a memorandum dated March 26, 1997 from the Chair of the Chemical Environmental and Safety Department, Pierre de Champlain. That memo made reference toa conversation between the grievor and Mr. Champlain of that same date during which she was told that her students had formally presented the College with some criticisms of her teaching. The memo went on to note that since those criticisms, they had met with class representatives and the class as a whole and included the following comment: Their comments warrant immediate action on your part so that a noticeable change is obvious between now and the end of the semester." There were specific criticisms about the high proportion of lecture hours that had been cancelled due toa lack of speakers. Mr. de Champlain pointed out that he had assigned the course to the grievor early enough that she should have been able to identifY topics and find speakers. He reminded her that the ultimate responsibility for the course was hers and said "I insist that you review your plans for this course and ensure that the students get a meaningful learning experience out of this course and that no more lecture hours are cancelled." Another critieism concerned the impression that the students had gained during the environmental audit course of the current semester and the hydro geology course of the previous semester that the grievor was not qualified to teach. Mr. de Champlain reminded her that. she had been assigned those courses based on her own identification of her speciaity. Additional criticisms included a comment that the Current Topics Course was not well organized and that the grievor was unfamiliar with the subject matter of the Environmental Audit-Theory 4 4 01;20 03/1212007 ] :28 PM ~.ai~4 http://library.hicks.com/cgi-bin/library/geUibrary _ ocr_lex t?TITLE... c.: ~ Course. Finally, on the Quality of the Environment-Water Course, he noted that the lab manual had been prepared the previous year by another professor and that she had the support of a technologist. Nevertheless he had received complaints that she knew little about the methods or equipment used and that often the technologist had to come to her rescue. Mr. de Champlain commented on the fact that during the meeting they had discussed the Course AssessmcntForms forher courses. Mr. de Champlain requested the following: 1. A copy of the final exam for the Hydrogeology Course she taught last fall. I asked for a copy of that exam a few weeks ago but had not received it as yet. I want this copy by March 31 at the latest. 2. A written document outlining the specific steps you will be taking to address the student concerns that I raised above. 3. A follow-up meeting at the end of April to review the situation. He also advised her that he would be visiting one of her theory classes over the next week to observe her teaching and concluded with the following comment. You must improve the situation considerably in order to be an effective teacher. I advise you to take steps to correct the discrepancies with your courses immediately. You assured me that you have the skills and experience needed to teach the courses that you were assigned. You will have to take steps to improve your teaching and to transmit the knowledge in such a way to your students that they develop more confidence in you. I am afraid that some of the students I have seen over the last month have all but lost this important confidence in you as a teacher. The Exhibit 5 referred to in the above Agreed Statement of Facts is dated March 30, 1997 and is the grievor's response to Mr. de Champlain's memorandum of March 26, 1997. It outlined the specific steps she had taken since the middle of February and would be taking over the last four weeks of the term to address the students' concerns. The memo was lengthy, seven pages in total, and contained her future plans for her courses. Rather than repeat all of those plans, the content of the memo is summed up under the heading of General Comments and reads as follows: 5 In the last six weeks since the students' concerns were first raised, I feel that I have put a great deal of effort and time into increasing m(sic) effectiveness as a teacher while addressing their 5 of 20 03112/2007 1:28 PM ca314 . ~-~ http://library.hicks.cOlli/cgi-bin/library/geUibrary_ocr _ tex I?TITLE... concems. I have tried several different formats with the current topics course, I have created six new environmental auditing laboratories, and reorganize the format of the environmental auditing lectures. I hope that the above outlined my course of action since the middle of February imd for the month of April and has addressed these concerns. I am continuing to make changes as I have outlined above, for those remaining classes in April which are not taken up by oral presentations. I have also reviewed the comments and scoring on the Course Assessment Forms with the view to improve my effectiveness as a teacher. I also look forward to you (sic) comments on my lecturing style and any suggestions you may have. I am looking forward to discussing these issues at the end of April, so that I can make effective use of my time in May and June to implement changes for next year as well. I would also request that we sit down with Dr. Kroeger and discuss the scheduling of the proposed course changes with a view to (1) update the course outlines, so they are not misleading for the students and do not create unrealistic expectations on their part, and (2) to detenmine which courses I will be teaching next fall and winter. At the commencement of the hearing the Union raised a preliminary issue with respect to Article 27.02 C of the collective agreement which reads as follows: During the probationary period an employee will be informed in writing of the employee's progress at intervals of four months continuous employment or four full months of accumulated non-continuous employment and a copy given to the employee. Also, it is understood that an employee may be released during the first five months of continuous or non-accumulated employment following the commencement date of the employee's employment upon at least 30 calendar days' written notice and during the remainder of the employee's probationary period upon at least 90 calendar days written notice. If requested by the employee, the reason for such a release will be given in writing. It was the position of the Union that the College's failure to comply with the requirement to provide progress reports at four month intervals renders the dismissal null and void. It argued that the oniy appropriate and meaningful remedy would be to void the termination. 6 crr-':2 0 0311212007 I :28 PM ~aJJ 4 hltp://library. hicks. com/cgi-bin/library/get_library _ocr_lex t?TITLE... Mr. Leeb, for the Union, stressed the importance of performance appraisals, particularly during the probationary period. They are of fundamental importance to an employee. They allow for an 6 improved perfonl1ance level by ensuring that employees know and are committed to achieving what is expected of them. They assist employees to develop their job skills through coaching, counselling and training. They improve communications and working relationships between employees and managers and provide for a better understanding of organizational objectives. Performance appraisals, asserted the Union, provide a clear indication of an employee's strengths and weaknesses. The corollary is that employees are then in a position to know their shortcomings and to take the appropriate steps to improve their performance. Performance appraisals during a probationary period are even more important given that the employee is new to the position and the organization. The Union asserted that the parties to this collective agreement have recognized the importance of performance appraisals during the probationary period by incorporating a mandatory requirement for regular reviews in Article 27.02 C. A failure to follow those mandatory procedural requirements must be viewed very seriously by this Board. It was pointed out that the grievor commenced employment with the College on August 14, 1995. She marked exams while on a maternity leave that commenced on December 4, 1995. She returned to work during May and June of 1996, for approximately five weeks. Accordingly, it was argued, Ms. Mullins first appraisal or progress report was due, at the latest, in June of 1996. She returned to work following a vacation that ended on August 9, 1996 and a second appraisal was due in December of 1996. The Union argued that the College objectively failed to comply with its obligation to provide the grievor with progress reports at either the four or eight month interval. 7 The Union submitted that since the College had concerns about the grievor's performance as early as November of 1996, its failure to provide her with a written appraisal at or aboutthat time deprived her of an opportunity to respond to those concerns until it was virtually too late. The College did not document its concerns and therefore the grievor could not respond by altering her teaching methods. 7 ol~20 03/12/2007 1 :28 PM ;a314 ~---~ http://library,hicks.com/cgi-bin/library/get_library_ocr_ lex t?TITLE... The March 26, 1996 memorandum refers to conversations that took place more than one month earlier about criticisms of her work. Again, because she was not advised in a prompt fashion about those concerns she did not take steps to address them until her memo of March 30, 1996. In that memo she outlines in great detail theactions that she had taken since the middle of February and intended to take for the rest of the semester. Notwithstanding the significant efforts made by the grievor and without any subsequent complaint or feedback to her, the College terminated her employment. The Union took the position that Exhibits 4 and 5 are indicative of the behaviour of both the College and the grievor throughout the entire episode. It submitted that the College did not take any steps towards ensuring that the grievor had a fair opportunity to complete her probationary period. It waited until it was almost too late to provide Ms. Mullins with virtually any feedback until March 26, 1997 and there was no subsequent feedback about that memo. On the other hand Exhibit 5 indicates that the grievor was determined to correct any deficiencies that had been brought to her attention. It was the Union's position that it is obvious that if concerns had been raised with the grievor earlier, as should have been the case, she would have taken steps to obtain any necessary 8 assistance to overcome those concerns. The College's failure to provide timely progress reports deprived her of an opportunity to do so. It was submitted that the grievor should not have to bear the consequences of the College's failure to comply with the Collective Agreement. The Union took the position that "jt is a common place of the law that the existence of a right implies the existence of a remedy." (Re Ontario Public Service Employeest Union and Carol Berry et al and the Crown in Right of Ontario (Ministry of Community and Social Services) March 12, 196), unreported, (Divisional Court). Mr. Justice Reid recognized that unless there is an appropriate remedy, a right is rendered nugatory. The provision for written reports at intervals of four months are mandatory requirements under the Collective Agreement and if the Employer chooses not to comply with those requirements, it does so at its peril. so, to 03112/2007 1 :28 PM ;a314 . "'"" hllp://library.hicks.com/cgi-bin/library/geUibrary" ocr_lex 1?TITLE... In the instant case it was submitted that the Employer's obligations in this regard are part of a negotiated agreement between the parties. They agreed that the Employer would do certain things for the grievor. A remedy of anything less than reinstatement, with full compensation, would render the grievor's rights meaningless and the language in Article 27.02C, worthiess. That is not what the parties intended. Boards bfArbitration havenregularly held at that failure to comply-with the stipulated process results in the Employer's actions being voided. The reason for such findings is that the language of the parties' bargain must serve a purpose. Contractual obligations cannot be ignored, otherwise the parties' agreement is meaningless and serves no purpose. The Union submitted that the grievor should be reinstated with full compensation. 9 Jn support of its position the Union relied on the following cases: Re Canada Post Corp. and Canadian Union of Postal Workers (Gibson) (1992), 29 L.A.C. (4th) 7 (Burkett); Re Government of Province of British Columbia (Personnel Services Division) and British Columbia Government Employees' Union (Canham) (1991), 21 L.A.C. (4th) 325 (Bird); Re Management Board of Cabinet and OPSEU (September 1, 1993), unreported (O.B. Shime); Re George Brown College and Ontario Public Service Employees Union (Ellis) (November 14, 1990), unreported (Mitchnick Herbert Guptill); Re Ministry of Transportation and OPSEU (Dadula), 1993 GSB #1089/92; Re Centennial College and OPSEU (Prentice) (August 2, 1983), unreported (Weatherill, Switzman, Gray); Re Ministry of Natural Resources and OPSEU (Augustine/Spaans) (1996), GSB #428/96 (Briggs); Re Ministry of Solicitor General and ~ Co 20 0311212007 1 :28 PM :a~4 . hllp://]ibrary.hicks.com/cgi-binll ibrary/geUibrary _ocr _lexl?TITLE... Correctional Services and OPSEU (Metcalf/Mercer) (1997), GSB #926/96 and 927/96 (Dissanayake ). Ms. Barbii, counsel for the College, took the position that the preliminary issue should be decided in favour of the College. The grievor was hired on August 14, 1995 as a probationary professor and commenced teaching on August 28, 1995. She taught for the first three months of the fall semester (September, October and November) and during that time there were no concerns about her perfonnance and ability as a professor. Since she had not completed four months of continuous service with the College a written review was not due. Even if the College had performed a written evaluation at the time, it would have been positive. The grievor did not teach atall during the 1996 winter and summer sessions. From December 4, 10 1995 through to May 3, 1996 the grievor was on pregnancy and parental leave. Although she did return to work at the College from May 3, 1996 through to June 10, 1996, she attended professional development courses and did not teach. It was not until she returned to the College in September of 1996 that she resumed teaching. It was the College's submission that during the earlier part of the 1996 fall session the College was satisfied with her performance and there were no complaints or concerns with her teaching. It was not until late November or early December of 1996 that the Chair of her department received a complaint from a student. The Chair immediately advised the grievor of the complaint and it was agreed that they would wait until the course assessments were received from the students before discussing the matter further. The College submitted that the grievor was immediately apprised of the students' concerns as soon as they were brought to the Chair's attention. The Course Assessments were received from the students at the end of January, 1997. In the interim the Chair had received further complaints from other students about the grievor's teaching and the program. A meeting was scheduled for February 12, 1997 between the Chair, the grievor and two representative students to discuss the situation. At that meeting concerns were discussed and the grievor was given an opportunity to respond to those concerns. The grievor denied some of the 10 bOO 03112/2007 1:28 PM cf/r1)4 . htlp://library.hicks,com/cgi-bin/library/geUibrary _ocr _lext'ITITLE.,. allegatio'ns and explained others. The Chair and the f,1fievor decided to meet with the whole class the next day. Ultimately the Chair visited the class alone, with the grievor's consent. The students! comments at that meeting led the Chair to conclude that the grievor had to take immediate steps to improve her performance and the program, otherwise her continued employmentwithJhe College was in jeopardy. It was at that point that the Chair provided the grievor with a written evaluation 11 outlining all of the concerns (Exhibit 4). The Union concedes that these concerns had been raised with the grievor at least one month prior to the written evaluation. The grievor's response dated March 30, 1996 proved that she had been immediately made aware' of the concems by the College and recognized that she was able to rectif~r some of them on her own. In summary, the College took the position that the grievor had taught for a total of oniy eleven months, three in the fall 1995 semester, four in the fall 1996 semester and four in the winter 1997 semester. For the first five' of those months the College had no problems or concerns with her teaching. As soon as it became aware of complaints in late November or early December of 1996 she was immediately advised. Thereafter the concerns were addressed and handled by the Chair and the grievor together. The Chair chose not to take formal written action in the hope of finding a professionai resolution. The Chair provided the grievor with an opportunity to rectif~' the situation and resolve the concerns. The concerns persisted and at that point a written evaluation was provided. The grievor's response to that evaluation, coupled with her failure to improve her performance, led the College to reiease her from employment during the probationary period. The College asserted, as well, that the preliminary objection be dismissed on the grounds that it would be an excess of jurisdiction to read into the Collective Agreement a condition that does not exist nor was intended by the parties. In the alternative, and in any event, the College argued that Article 27.02C had been complied with and even if there had been a breach, the College should not be precluded from being able to release the employment of a probationary employee simply on the basis of a technical breach. 12 The College took the position that this issue has already been addressed and dismissed by at least two other College sector Boards of Arbitration. The basis for dismissing the argument was that, although the College is required to provide written evaluations every four months, it is not a precondition to the employee's release or dismissal. An Arbitration Board could only grant the Union's request if it were prepared to read this condition into the Collective Agreement, which is beyond its jurisdiction. 1 uno 03/1212007 ] :28 PM ;.~4 hup:l/library .hicks.com/cgi-bin/library/geUibrary _ocr" tcxl?T]TLE.,. In the case of Re Seneca College and OPSEU (O'Neill) (February 28, 1984), unreported, (Brent), the College did not give a probationary employee written evaluations at the prescribed intervals as required by Article 27.02C. In discussing the effect the College's violation of Article 27.02C would have on its decision to terminate the probationary employee, the Board stated at page 7-8: We agree that the article can reasonably be interpreted as making it mandatory for the College to give periodic information of progress at the prescribed intervals. The article does not, however, in any way limit the College's right to terminate the employment of a probationary employee upon giving him appropriate notice. In particular, the periodic appraisals are not a condition precedent to the making of any decision about whether or not to continue the employment ofa probationary employee. If that were the case, then we would expect the Collective Agreement to state it explicitly. The College reminded the Board that the parties to this Collective Agreement are educated and sophisticated. This is a provincially negotiated Collective Agreement applicable to all Colleges in Ontario. If these parties had intended Article 27.02C to operate as a condition precedent to the termination of a probationary employee, they would have explicitly so provided. For example, Article 27.02C does not state that the College "shall not discipline or terminate the employment of a probationary employee unless regular written performance appraisals are provided." If this Arbitration Board should find that the College's failure to provide periodic evaluations renders the 13 grievor's termination void, it would be imposing an obligation on the College that is not created by the wording of the Collective Agreement or negotiated by the parties. In Re Association of Radio and Television Employees of Canada (CUPE-CLC) v. Canadian Broadcasting Corporations, 119751 40 DLR (3d) 1 (SCC), at page7, the Court concluded that a Board of Arbitration exceeded its jurisdiction when it imposed a condition in respect of a 12 df 20 03/12/2007 I :28 PM ;a~~ 4 . , ;-~ hllp://library.hicks.com/cgi-bin/library/geUibrary _ ocr_lex t?TITLE... competition for employment for which there was no basis in the Collective Agreement. It said: In my opinion, the Board had no power to order any remedy which was not contemplated either expressly or impliedly, by the agreement itself its order was not one which required the Respondent to put the Appellant in the position in which it should have been, save for the . breach, by requiring the Respondent to perform its contract. It required the Respondent to do something other than what it was, by contract, obligated to do in making the direction contained in para (b) of the award it acted in excess of its powers. The College also asserted that the right to release an employee during the probationary period is a significant management right. The probationary period allows the employer to objectively assess a new employee's performance and suitability for the job. The exercise of this particular management right should only be constrained if the Collective Agreement expressly and unambiguously so provides. The second instance in which a Board refused to vitiate a discharge was that of Re Fanshaw College and OPSEU (Robson) (September 9, 1988), unreported, (P. Picher). In that case a probationary employee was not given proper notice under Article 27.02C prior to her termination. The Union argued that the proper notice was a mandatory condition precedent to the effectiveness of the release and that in the absence of due notice the release was void ab initio. The Board, in explicit disagreement with the Union, held at page 9 that: 14 The Board does not accept the assertion of the Union that the Colleges release was void ab initio by virtue of its failure to give due notice. In any event, the College asserted, it complied with the spirit of Article 27.02C. Prior to November of 1996 there were no concerns with the grievor's performance or with the program she taught. She was not prejudiced by the fact no written evaluation had been provided. As soon as complaints were received, the Chair ensured that the grievor was aware of them and took immediate steps to resolve those concerns with the grievor and the students. Rather than reducing the concerns to writing in a formal review that would remain on her record, the Chair chose to deal with the situation professionally to maximize the grievor's opportunity to rectify the situation as soon as possible. That was for the grievor's benefit. It was only after it became apparent to the Chair that the concerns could not be resolved and that the situation would not improve that he wrote a formal evaluation. Whether or not this action was in strict compliance with Article 27.02C, the spirit of the provision was surely complied with. The grievor was not prejudiced or adversely affected by not having been provided with 13' of 20 03/1212007 1:28 PM a314 · ~~ http://library.hicks.com/cgi-bin/library/geUibrary_ocr_ tex I?TlTLE... reviews at four month intervals. The College should not be restricted from exercising its management right to release her from employment. Even in the cases relied on by the Union it is clear that the parties never intended the requirement to provide written appraisals as a precondition to the release of a probationary employee. In the Dadula case (supra), the grievor, a probationary employee, was released from his employment. He was notprovided with regular written evaluafions'aith-ollgh he had been verbally apprised of his shortcomings. The grievor in that case was provided with his first written review on the eve of his release. Mr. Leeb represented the Union at that hearing and made the same preliminary argument before that Board; that is, that a failure to provide written evaluations rendered the release null and void. The panel hearing that case 15 dismissed the argument and said at page 50: Providing written appraisals is a matter of fairness to the employee and as the Guidelines indicate, they are the preferred manner in which the information should be conveyed, however, we cannot find that the directive requires written appraisals as a precondition to the release of a probationary employee, nor can we find, in the circumstances of this case, that there was any question but that the grievor was not meeting the requirements ofthe position, and that the directive was complied with in so far as this information was regularly and consistently communicated to him. In summary, the College took the position that the requirement for evaluations at four-month intervals is not a condition precedent to the release of a probationary employee and for this Board to find otherwise would be an excess of its jurisdiction. Furthenl10re the spirit of the article was complied with and the grievor suffered no prejudice having been immediately apprised of all of the concerns and problems and having been given a full opportunity to improve. It asks that the grievance be dismissed. DECISION As can be seen, there is no dispute concerning the facts of this case. The grievor began teaching at the College on August 28,1995. She was on pregnancy leave from December 4,1995 to March 29,1996, followed by parental leave until May 3, 1996. From December of 1996 to June of 1997 she perfonned some non-teaching duties but did not return to teaching until September of 1997. In all of that time the College was satisfied with her performance. By late November or early December one student had complained about the grievor and it was agreed that any further discussion about that complaint would take place after the course assessments in January. By then more complaints had been received and, 14",.:'20 03/12/2007 1:28 PM ;ag4 · htlp://library .hicks.com/cgi-bin/library/gel_library ~ ocr _, lex l?T1TLE... after meeting with the students, the first formal perfonnance appraisal of the f,1fievor was completed. 16 The College does not dispute the Union's allegation that it failed to comply with the requirement under the collective agreement to inform the grievor of her progress at four month intervals. The issue for this Board is the effect of that non-compliance. The Union has argued that the tennination should be voided: the College takes the position that it complied in spirit with the collective agreement and that its right to release a probationary employee should not be interfered with absent clear language to . that effect. As a general statement of principle, an employer's right to release a probationary employee is a significant management prerogative that should not be restricted absent clear and precise language to that effect. Balancing that is a probationary employee's right to be given an opportunity to meet the employer's expectations. which includes the right to be advised of his/her shortcomings in a timely fashion so that changes and/or improvements might be made. In this collective agreement in particular, the parties have recognized both of these principles by clearly defining the length of the probationary period and by requiring written. notification of an employee's progress at regular intervals. We are of the opinion, however, that the language of this collective agreement does not support that Union's claim. We come to that conclusion from a review of the clause itself and from the collective agreement as a whole. Article 27.02C reads as follows: During the probationary period an employee will be informed in writing of the employee's progress at intervals of four months continuous employment or four full months of accumulated non-continuous employment and a copy given to the employee. Also, it is understood that an employee may be released during the first five months of continuous or non-accumulated employment following the commencement date of the employee's 17 employment upon at least 30 calendar dayst written notice and during the remainder of the employee's probationary period upon at least 90 calendar days written notice. If requested by the employee, the reason for such a release will be given in writing. .5u,'20 03/1212007 1 :28 PM a3M · htlp://library.hicks.com/cgi-bin/library/geUibrary _ocr_lex I?TITLE... In the first instance, the clause refers to a written statement of the employee's progress. The requirement is notfor-afonnalperfonnanceappraisalnbut simply some written notification of the employee's ability and suitability for the job. That notification could take the form of a comprehensive appraisal or a brief comment on the perfonl1ance. If the parties had intended to obligate the College to provide a probationary employee with the former, they could have and would have stated so explicitly. As well, it is clear that the College could release a probationary employee before he/she reached the four month threshold providing it gives that employee the requisite notice. That, in our view, is another indication that the parties did not intend this provision to operate as a condition precedent to the release of a probationary employee. Finally, we note that the parties used the word "will" as opposed to "shall", which has been interpreted by arbitrators as being permissive, not mandatory. There have been disagreements between these parties in the past about the interpretation and application of these provisions. The College took the position that this matter has been dealt with by other Boards of Arbitration and this Board's decision should be consistent with those decisions. We believe that our ruling in this matter is consistent with the cases provided to us. 18 The College referred us to the Seneca College case, (supra), and took the position that the Board in that case specifically found that the performance appraisals mentioned in article 27.02C were not a condition precedent to a decision to release a probationary employee. The grievance in that case alleged that the College had failed to show the grievor his performance appraisals or give him an opportunity to respond to them contrary to article 26.01 which read as follows: Performance appraisals, including written progress reports referred to in Section 8.01 which are to be filed on the employee's record, shall be shown to the employee in advance. The employee may add his views to such appraisal before it is filed. Each employee Shall receive a copy of any disciplinary notice to be placed in his personnel file. Access of an employee to his file 1 6 0f 20 0311212007 1:28 PM :a~ 4 . htlp://library.hicks.com/cgi-bin/library/geUibrary _ ocr_lex I?T1TLE... containing performance appraisals, records of educational achievement and disciplinary notices shall be the subject of discussion under Section 14.02 if requested. At the hearing the union raised an issue that the Board characterized as "an entirely different and separate cause of action which was never raised in the original grievance"; namely that the College had failed to make timely appraisals as required under article 8.01, which is virtually identical to article 27.02C. The Board's comments, in full, on that article read as follows: Because we heard a fair amount of argument concerning the meaning of Article 8.0l( c) and in the event that we are wrong in considering that it expanded the grievance to include an entirely new cause of action, perhaps we should make some remarks concerning that article. We agree that the article can reasonable be interpreted as making it mandatory for the College to give periodic information of progress at the prescribed intervals. The article does not, however, in any way limit the College's right to terminate the employment of a probationary employee upon giving him the appropriate notice. In particular, the periodic appraisals are not a condition precedent to the making of any decision about whether or not to continue the employment of a probationary employee. If that were the case, then we would have expected the collective agreement to state it explicitly. Therefore, while we would agree that if the College failed to make the evaluations as required, the grievor could be entitled to a remedy, we would not agree that the appropriate remedy would always necessarily be the grievor' s reinstatement. In assessing whether a remedy ought to be given at all, we would have to consider and give weight to the College's argument that the grievor's failure to complain about the evaluations not being done should be taken as evidence of his having waived his rights to those periodic assessments. Under the circumstances of this case, we would consider that a declaration that the collective agreement had been breached would be the only remedy which could be considered. We begin first by noting that the Board's comments regarding article 8.01 are obiter. It had 19 dismissed the grievance on either grounds and added these comments only as alternative grounds to dismiss the grievance. In any event, we interpret the Board's decision to be that, while the requirement to give periodic appraisals could be mandatory, an employer's decision to release a probationary employee is not contingent on those' appraisals. We also interpret the decision to say that the appropriate remedy for a breach of this article will depend on the individual circumstances of each case. The Fanshawe College case (supra), the College did not give a probationary employee the required IIJf20 03112/2007 1 :28 PM ;abl 4 · hltp://library.hicks.com/cgi-bin/library/geUibrary _ocr _lexl?T]TLE... notice under the collective agreement before terminating her services and, while the Board rejected the union's argument that the termination was void ab initio, it compensated the grievor for the breach by awarding her the difference in the notice period, that is 53 day's pay. Finally, in the Dadula decision (supra), the comments of the dissenting member of the Board suggest that, had the employer breached the management's Directives as opposed the their. Guidelines, the Board would have allowed the grievance and reinstated the grievor. That Board, however, was dealing with the merits of the grievance and where not asked to determine the issue as a preliminary matter going to jurisdiction. In that case, the Board was asked to' determine whether the actions of the College in not following its own guidelines constituted bad faith. That is the position of the Union in this case and we will proceed to hear its evidence and submissions on that position at the next day of hearing. The Union's preliminary issue is therefore dismissed. The hearing will proceed on its merits on a 20 date to be agreed to by the parties. Signed this 28th day of June, 1998 "I concur~~ Robert Gallivan Employer Nominee Dissent Attached Ron Cochrane Union Nominee 186f20 03112/2007 I :28 PM :a~4 - hltp://library.hicks.cOni/cgi-bin/library/get_library _ocr _ texl?T1TLE.., UNION NOMINEE'S DISSENT 1 have read the draft-anducannot agree with the rational e or the decision. As I understand the Union's submissions, it advanced the argument that the release on probation should be rescinded because the Employer had failed to provide the grievor with the periodic reviews contemplated by the collective agreement. Article 27.02( c) requires the College to give probationary employees written reports on their progress "..at intervals of four (4) months continuous employment or four (4) full months of accumulated non-continuous employment". The College admits that it breached this provision. It offers the . explanation that it had no concern about the ~oretta Mikus Chair 21 employee's work at that point in time. The language used in 27.02<<;) is not written as a discretionary provision. The parties used the word "will", which has been interpreted by the vast majority of arbitrators to be imperative it is most often interchanged with the word' shall". The issue therefore at this stage of the hearing is to decide whether a breach of this Article has the impact of nullifying the employee's release. A close reading of Article 27.02 (c) reveals that an employee can be released "... during the first five (5) months of continuous or non-accumulated employment.." which means that the employee could be released prior to a written progress report contemplated by the Article. However, as the employee accumulates more employment he/she also accumulates more protection. An employee with less than four (4) months employment could be released with thirty (30) days notice. An employee with four (4) or more months of employment can be released with thirty (30) days notice but the employee is also entitled to a written progress report. If the employee requests he/she is also entitled to reasons for his/her release. Once the employee accumulates more than five (5) months of employment he/she is entitled to written progress reports, more notice of termination and if requested, the reasons expressed in writing for the termination. 1 5-' 0f20 03112/2007 1 :28 PM ;a}i4 , htlp:l/library .hicks.com/cgi-bin/library/gel_library _ ocr _ texl?TITLE... 22 The grievor in this case was well over the five (5) month mark and the College neglected its obligations with respect to-the written progress.reports. TheEmployer'~(}bligationinthis circumstance can be compared to other cases where the Employer has been found to be in technical breach of the collective agreement. For example, arbitrators have found where the Employer has failed to provide union representation or failed to provide timely written reasons to the employee, the terminations have been rescinded. Unions who have failed to process grievances through the grievance process, where it has been detemlined that the time limits are mandatory, have had the grievances dismissed without ever addressing the merits. Should we treat this violation any differently? Is it open to the Employer to argue that its too late for the union to raise this as a violation? In my view, the employee could have grieved the absence of the progress reports at four(4) month intervals, but the fact that she hasn't should not be used against her. The reports were meant as a "shield" not a "sword". When an Employer wants to release an employee on probation, its best be sure that is has all of its ducks lined up. If the employee has more than five (5) months of employment, it better come prepared to show that it followed the collective agreement to the tee. I say this because the standard for review of employees who are released while on probation is considerably less than it is for non-probationary employees. For all of these reasons I would agree with the union submissions to advance this technical violation as reason to rescind the release rather than advance this argument 23 later as evidence of "bad faith". By this, I am not suggesting that the Union would be prevented from raising this during a hearing on the merits if it had come to that point in a hearing. I would uphold the grievance on the grounds that the Employer had violated the collective agreement when it released the grievor, and order her full reinstatement. R, A. Cochrane 20- f 20 03/1212007 1:28 PM ::0: ~ ~, ~ , , Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 Philippe Adrien, Emilia Berardi, Paul Creador, Lorenzo Abel Vasquez and Lindy Wagner on their own behalf and on behalf of the other former employees of Rizzo & Rizzo Shoes Limited v. Zittrer, Siblin & Associates, Inc., Trustees in Bankruptcy of the Estate of Rizzo & Rizzo Shoes Limited and The Ministry of Labour for the Province of Ontario, Employment Standards Branch Party Indexed as: Rizzo & Rizzo Shoes Ltd. (Re) File No.: 24711. 1997: October 16; 1998: January 22. Present: Gonthier, Cory, McLachlin, Iacobucci and Major JJ. on appeal from the court of appeal for ontario Employmentlaw -- Bankruptcy -- Termination pay and severance available when employment terminated by the employer -- Whether bankruptcy can be said to be termination by the employer-- Employment Standards Act, R.S. 0. 1980, c. 137, ss, 7(5), 40(1), (7), 40a -- Employment Standards Amendment Act, 1981, s.o. 1981, c. 22, s. 2(3) ~-~ ".-"""'] - 2 - __ Bankruptcy Act, R.S.e., 1985, c. B:-3, s. 121(1) -- Interpretation Act, R.S.a. 1990, c. Ill, ss. 10, 17. A bankrupt firm's employees lost their jobs when a receiving order was u u if) made with respect to the firm's property. All wages, salaries, commissions and vacation t'- r0 <X) ...J pay were paid to the date of the receiving order. The province's Ministry of Labour audited the firm's records to determine if any outstanding termination or severance pay rG U ex;; m 0l was owing to former employees under the Employment Standards Act ("ESA") and delivered a proof of claim to the Trustee. The Trustee disallowed the claims on the ground that the bankruptcy of an employer does not constitute dismissal from employment and accordingly creates no entitlement to severance, termination or vacation pay under the ESA. The Ministry successfully appealed to the Ontario Court (General Division) but the Ontario Court of Appeal overturned that court's ruling and restored the Trustee's decision. The Ministry sought leave to appeal from the Court of Appeal judgment but discontinued its application. Following the discontinuance ofthe appeal, the Trustee paid a dividend to Rizzo's creditors, thereby leaving significantly less funds in the estate. Subsequently, the appellants, five former employees of Rizzo, moved to set aside the discontinuance, add themselves as parties to the proceedings, and requested and were granted an order granting them leave to appeal. At issue here is whether the termination of employment caused by the bankruptcy of an employer give rise to a claim provable in bankruptcy for termination pay and severance pay in accordance with the provisions of the ESA. Held: The appeal should be allowed. At the heart of this conflict is an issue of statutory interpretation. Although the plain language of ss. 40 and 40a of the ESA suggests that termination pay and - 3 - severance pay are payable only when the employer terminates the employment, statutory interpretation cannot be founded on the wording ofthe legislation alone. The words of an Act are to be read in their entire context and in their grammatical and ordinary sense u u if) harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Moreover, s. 10 of Ontario's Interpretation Act provides that every Act r-- r- co "shall be deemed to be remedial" and directs that every Act shall "receive such fair, large , .... (1J u co m 01 and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit". The objects of the ESA and of the termination and severance pay provisions themselves are broadly premised upon the need to protect employees~ Finding ss. 40 and 40ato be inapplicable in bankruptcy situations is incompatible with both the object of the ESA and the termination and severance pay provisions. The legislature does not intend to produce absurd consequences and such a consequence would result if employees dismissed before the bankruptcy were to be entitled to these benefits while those dismissed after a bankruptcy would not be so entitled. A distinction would be made between employees merely on the basis of the timing of their dismissal and such a result would arbitrarily deprive some of a means to cope with economic dislocation. The use of legislative history as a tool for determining the intention of the legislature is an entirely appropriate exercise. Section 2(3) of the Employment Standards AmendmentAct, 1981 exempted from severance pay obligations employers who became bankrupt and lost control of their assets between the coming into force of the amendment and its receipt of royal assent. Section 2(3) necessarily implies that the severance pay obligation does in fact extend to bankrupt employers. If this were not the case, no readily apparent purpose would be served by this transitional provision. Further, since the ESA is benefits-conferring legislation, it ought to be interpreted in a broad and - 4- generous manner. Any doubt arising from difficulties of language should be resolved in favour of the claimant. u ( , '-' When the express words of ss. 40 and 40a are examined in their entire if) context, the words "terminated by an employer" must be interpreted to include r'- c') co termination resulting from the bankruptcy of the employer. The impetus behind the ...J (1J U co 0) m termination of employment has no bearing upon the ability of the dismissed employee to cope with the sudden economic dislocation caused by unemployment. As all dismissed employees are equally in need of the protections provided by the ESA, any distinction between employees whose termination resulted from the bankruptcy of their employer and those who have been terminated for some other reason would be arbitrary and inequitable. Such an interpretation would defeat the true meaning, intent and spirit of the ESA. Termination as a result of an employer's bankruptcy therefore does give rise to an unsecured claim provable in bankruptcy pursuant to s. 121 of the Bankruptcy Act for termination and severance pay in accordance with ss.40 and 40a of the ESA. It was not necessary to address tlie applicability of s. 7(5) of the ESA. ~: Cases Cited Distinguished: Re Malone Lynch Securities Ltd., [1972] 3 O.R. 725; Re Kemp Products Ltd. (1978),27 C.B.R. (N.S.) 1; Mills-Hughes v. Raynor (1988),63 O.R. (2d) 343; referred to: u.F. C. W, Loc. 617P v. Royal Dressed Meats Inc. (Trustee oj) (1989),76 C.B.R. (N.S.) 86; R. v. Hydro-Quebec, [1997] 3 S.C.R. 213*; Royal Bank of Canada v. Sparrow Electric Corp., [1997] 1 S.C.R. 411; Verdun v. Toronto-Dominion Bank, [1996] 3 S.c.R. 550; Friesen v. Canada, [1995] 3 S.c.R. 103; Machtinger v. HOJ * See Erratum [1999] 2 S.C.R. iv :_~ ? - 5 - Industries Ltd., [1992] 1 S.C.R. 986; Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; R. v. TNT Canada Inc. (1996), 27 O.R (3d) 546; Re Telegram Publishing Co. v. Zwelling (1972),1 L.A.C. (2d) 1; R. v. Vasil, [1981] 1 S.C.R 469; Paul v. The f Queen, [1982] 1 S.C.R. 621; R. v. Morgentaler, [1993] 3 S.C.R. 463; Abrahams v. u u C(2 f'- r- co Attorney General of Canada, [1983] 1 S.C.R. 2; Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513; British Columbia (Director of Employment Standards) v. Eland ...J r CD U Distributors Ltd. (Trustee oj) (1996), 40 C.B.R.(3d) 25; R. v. Z. (D.A.), [1992] 2 S.C.R 1025. ~ m "'_. Statutes and Regulations Cited Bankruptcy Act, RS.C., 1985, c. B-3 [now the Bankruptcy and Insolvency Act], s.121(1). Employment Standards Act, RS.O. 1970, c. 147, s. 13(2). Employment Standards Act, R.S.O. 1980, c. 137, ss. 7(5) [rep. & sub. 1986, c. 51, s. 2], 40(1) [rep. & sub. 1987, c. 30, s. 4(1)], (7), 40a(l) [rep. & sub. ibid.,s. 5(1)]. Employment Standards Act, 1974, S.O. 1974, c. 112, s. 40(7). Employment Standards Amendment Act, 1981, S.O. 1981, c. 22, s. 2. Interpretation Act, R.S.O. 1980, c. 219 [now RS.O. 1990, c. 1.11], ss. 10, 17. Labour Relations and Employment Statute Law Amendment Act, 1995, S.O. 1995, c. 1, ss. 74(1), 75(1). Authors Cited Christie, Innis, Geoffrey England and Brent Cotter. Employment Law in Canada, 2nd ed. Toronto: Butterworths, 1993. Cote, Pierre-Andre. The Interpretation of Legislation in Canada, 2nd ed. Cowansville, Que.: Yvon Blais, 1991. Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983. - 6 - Ontario. Legislature of Ontario Debates, 1 st sess., 32nd ParI., June 4, 1981, pp. 1236-37. Ontario. Legislature of Ontario Debates, 1st sess., 32nd ParI., June 16, 1981, p. 1699. Sullivan, Ruth. Driedger on the COnstruction oj Statutes, 3rd ed. Toronto: Butterworths, 1994. u (~ Sullivan, Ruth. Statutory Interpretation. Concord,Ont.: Irwin Law, 1997. (f) f- (') IX; ...J APPEAL from a judgment of the Ontario Court of Appeal (1995), 22 O.R. m U OJ m m (3d) 385, 80 0.A.e. 201, 30 C.B.R. (3d) 1,9 C.e.E.L. (2d) 264, 95 e.L.L.C. ~21O-020, [1995] OJ. No. 586 (QL), reversing a judgment of the Ontario Court (Gtmeral Division) (1991), 6 O.R. (3d) 441, 11 C.B.R. (3d) 246, 92 C.L.L.e. ~14,013, ruling that the Ministry of Labour could prove claims on behalf of employees of the bankrupt. Appeal allowed. Steven M. Barrett and Kathleen Martin, for the appellants. Raymond M Slattery, for the respondent. David Vickers, for the Ministry of Labour for the Province of Ontario, Employment Standards Branch. //Iacobucci J.// The judgment ofthe Court was delivered by 1 IACOBUCCI J. -- This is an appeal by the former employees of a now bankrupt employer from an order disallowing their claims for termination pay (including vacation pay thereon) and severance pay. The case turns on an issue of statutory ::: :; - 7 - interpretation. Specifically, the appeal decides whether, under the relevant legislation in effect at the time of the bankruptcy, employees are entitled to claim termination and severance payments where their employment has been terminated by reason of their u u (f) employer's bankruptcy. f'- M co 1. Facts ...J CD U co Go m 2 Prior to its bankruptcy, Rizzo & Rizzo Shoes Limited ("Rizzo") owned and operated a chain of retail shoe stores across Canada. Approximately 65 percent of those stores were located in Ontario. On April 13, 1989, a petition in bankruptcy was filed against the chain. The follpwing day, a receiving order was made on consent in respect of Rizzo's property. Upon the making of that order, the employment of Rizzo's employees came to an end. 3 Pursuant to the receiving order, the respondent, Zittrer, Siblin &Associates, Inc. (the "Trustee") was appointed as trustee in bankruptcy of Rizzo's estate. The Bank of Nova Scotia privately appointed Peat Marwick Limited ("PML") as receiver and manager. By the end of July 1989, PML had liquidated Rizzo's property and assets and closed the stores. PML paid all wages, salaries, commissions and vacation pay that had been earned by Rizzo's employees up to the date on which the receiving order was made. 4 In November 1989, the Ministry of Labour for the Province of Ontario, Employment Standards Branch (the "Ministry") audited Rizzo's records to determine if there was any outstanding termination or severance pay owing to former employees under the Employment Standards Act, RS.O. 1980, c. 137, as amended(the "ESA"). On August 23, 1990, the Ministry delivered a proof of claim to the respondent Trustee on behalf of the former employees of Rizzo for termination pay and vacation pay thereon ~ .~ --;; - 8 - in the amount of approximately $2.6 million and for severance pay totalling $14,215. The Trustee disallowed the claims, issuing a Notice of Disallowance on January 28, 1991. For the purposes of this appeal, the relevant ground for disallowing the claim was u the Trustee's opinion that the bankruptcy of an employer does not constitute a dismissal u Cf) from employment and thus, no entitlement to severance, termination or vacation pay is f'- r- eo created under the ESA. ...J (lJ () co m m 5 The Ministry ~ppealed the Trustee's decision to the Ontario Court (General Division) which reversed the Trustee's disallowance and allowed the claims as unsecured claims provable in bankruptcy. On appeal, the Ontario Court of Appeal overturned the trial court's ruling and restored the decision of the Trustee. The Ministry sought leave to appeal from the Court of Appeal judgment, but discontinued its application on August 30, 1993. Following the discontinuance of the appeal, the Trustee paid a dividend to Rizzo's creditors, thereby leaving significantly less funds in the estate. Subsequently, the appellants, five former employees of Rizzo, moved to set aside the discontinuance, add themselves as parties to the proceedings, and requested an order granting them leave to appeal. This Court's order granting those applications was issued on December 5, 1996. 2. Relevant Statutorv Provisions 6 The relevant versions of the Bankruptcy Act (now the Bankruptcy and Insolvency Act) and the Employment Standards Act for the purposes of this appeal are R.S.C., 1985, c. B-3 (the "BA"), and RS.O. 1980, c. 137, as amended to April 14, 1989 (the "ESA") respectively. t - 9 - Employment Standards Act, R.S.O. 1980, c. 137, as amended: 7. -- u u (f) (5) Every contract of employment shall be deemed to include the following provision: r-- r- eo All severance pay and termination pay become payable and shall be . paid by the employer to the employee in two weekly instalments beginning with the first full week following termination of employment and shall be allocated to such weeks accordingly. This provision does not apply to severance pay if the employee has elected to maintain a right of recall as provided in subsection 40a (7) of the Employment Standards Act. ...J r (lJ U co m O~ 40. -- (1) No employer shall terminate the employment of an employee who has been employed for three months or more unless the employee gives, (a) one weeks notice in writing to the employee ifhis or her period of employment is less than one year; (b) two weeks notice in writing to the employee ifhis or her period of employment is one year or more but less than three years; (c) three weeks notice in writing to the employee ifhis or her period of employment is three years or more but less than four years; (d) four weeks notice in writing to the employee ifhis or her period of employment is four years or more but less than five years; ( e) five weeks notice in writing to the employee if his or her period of employment is five years or more but less than six years; (t) six weeks notice in writing to the employee if his or her period of employment is six years or more but less than seven years; (g) seven weeks notice in writing to the employee if his or her period of employment is seven years or more but less than eight years; (h) eight weeks notice in writing to the employee ifhis or her period of employment is eight years or more, and such notice has expired. (7) Where the employment of an employee is terminated contrary to this section, . H - 10 - (a) the employer shall pay termination pay in an amount equal to the wages that the employee would have been entitled to receive at his regular rate for a regular non-overtime work week for the period of notice prescribed by subsection (1) or (2), and any wages to which he is entitled; u ( , '-' if) 40a.. . I'-- r- co (a) fifty or more employees have their employment terminated by an employer in a period of six months or less and the terminations are caused by the permanent discontinuance of all or part of the business of the employer at an establishment; or ...J C ra U co m m (la) Where, (b) one or more employees have their employment terminated by an employer with a payroll of $2.5 million or more, the employer shall pay severance pay to each employee whose employment has been terminated and who has been employed by the employer for five or more years. - 0 Employment Standards Amendment Act, 1981, S.O. 1981, c. 22 2.--( 1) Part XII of the said Act is amended by adding thereto the following section: (3) Section 40a of the said Act does not apply to an employer who became a bankrupt or an insolvent person within the meaning of the Bankruptcy Act (Canada) and whose assets have been distributed among his creditors or to an employer whose proposal within the meaning of the Bankruptcy Act (Canada) has been accepted by his creditors in the period from and including the 1st day of January, 1981, to and including the day immediately before the day this Act receives Royal Assent. Bankruptcy Act, RS.C., 1985, c. B-3 121. (1) All debts and liabilities, present or future, to which the bankrupt is subject at the date of the bankruptcy or to which he may become subject before pis discharge by reason of any obligation incurred before the ~ -~ - 11 - date of the bankruptcy shall be deemed to be claims provable in proceedings under this Act. Interpretation Act, RS.O. 1990, c. 1.11 u u if) f'- rei o:J 10. Every Act shall be deemed to be remedial, whether its immediate. purport is to direct the doing of anything that the Legislature deems to be for the public good or to prevent or punish the doing of any thing that it deems to be contrary to the public good, and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object ofthe Act according to its true intent, meaning and spirit. ...J '" u OJ G) 0") ,-- 17. The repeal or amendment of an Act shall be deemed not to be or to involve any declaration as to the previous state of the law. 3. Judicial History A. Ontario Court (General Division) (1991), 6 O.R. (3d) 441 7 Having disposed of several issues which do not arise on this appeal, Farley J. turned to the question of whether termination pay and severance pay are provable claims under the BA. Relying on u.F.C.W, Loc. 617P v. Royal Dressed Meats Inc. (Trustee oj) (1989), 76 C.B.R. (N.S.) 86 (Ont. S.C. in Bankruptcy), he found that it is clear that claims for termination and severance pay are provable in bankruptcy where the statutory obligation to provide such payments arose prior to the bankruptcy. Accordingly, he reasoned that the essential matter to be resolved in the case at bar was whether bankruptcy acted as a termination of employment thereby triggering the termination and severance pay provisions of the ESA such that liability for such payments would arise on bankruptcy as well. - ] 2 - 8 In addressing this question, Farley J. began by noting that the object and intent of the ESA is to provide minimum employment standards and to benefit and protect the interests of employees. Thus, he concluded that the ESA is remedial legislation and as such it should be interpreted in a fair, large and liberal manner to u () Cf) ensure that its object is attained according to its true meaning, spirit and intent. r-- r- co 9 Farley J. then held that denying employees in this case the right to claim termination and severancb pay would lead to the arbitrary and unfair result that an ...J C m U eo Go OJ employee whose employment is terminated just prior to a bankruptcy would be entitled to termination and severance pay, whereas one whose employment is terminated by the bankruptcy itself would not have that right. This result, he stated, would defeat the intended working of the ESA. 10 Farley J. saw no reason why the claims of the employees in the present case would not generally be contemplated as wages or other claims under the BA. He emphasized that the former employees in the case at bar had not alleged that termination pay and severance pay should receive a priority in the distribution of the estate, but merely that they are provable (unsecured and unpreferred) claims in a bankruptcy. For this reason, he found it inappropriate to maKe reference to authorities whose focus was the interpretation of priority provisions in the BA. 11 Even if bankruptcy does not terminate the employment relationship so as to trigger the ESA termination and severance pay provisions, Farley J. was of the view that the employees in the instant case would nevertheless be entitled to such payments as these were liabilities incurred prior to the date of the bankruptcy by virtue of s. 7(5) of the ESA. He found that s. 7(5) deems every employment contract to include a provision to provide termination and severance pay following the termination of - 13 - employment and concluded that a contingent obligation is thereby created for a bankrupt employer to make such payments from the outset of the relationship, long before the bankruptcy. u u Cf) 12 Farley J. also considered s. 2(3) of the Employment Standards Amendment r-- r- eo ...J c (\) U co m m Act, 1981, S.O. 1981, c. 22 (the "ESAA"), which is a transitional provision that exempted certain bankrupt employers from the newly introduced severance pay obligations until the amendments received royal assent. He was of the view that this provision would not have been necessary ifthe obligations of employers upon termination of employment had not been intended to apply to bankrupt employers under the ESA. Farley J. concluded that the claim by Rizzo's former employees for termination pay and severance pay could be provided as unsecured and unpreferred debts in a bankruptcy. Accordingly, he allowed the appeal from the decision of the Trustee. B. Ontario Court of Appeal (1995),22 O.R. (3d) 385 13 Austin J.A., writing for a unanimous court, began his analysis of the principal issue in this appeal by focussing upon the language of the termination pay and severance pay provisions of the ESA. He noted, at p. 390, that the termination pay provisions use phrases such as "[ n]o employer shall terminate the employment of an employee" (s. 40( 1)), "the notice required by an employer to terminate the employment" (s. 40(2)), and "[a]n employer who has terminated or who proposes to terminate the employment of employees" (s. 40(5)). Turning to severance pay, he quoted s. 40a(1 )(a) (at p. 391) which includes the phrase "employees have their employment terminated by an employer". Austin J.A.. concluded that this language limits the obligation to provide ~ termination and severance pay to situations in which the employer terminates the q r , - 14 - employment. The operation of the ESA, he stated, is not triggered by the termination of employment resulting from an act of law such as bankruptcy. u 14 In support of his conclusion, Austin J .A. reviewed the leading cases in this (f) area of law. He cited Re Malone Lynch Securities LId., [1972] 3 O.R. 725 (S.e. in !'- or' C:::l bankruptcy), wherein Houlden J. (as he then was) concluded that the ESA termination ...J C (1:; U pay provisions were not designed to apply to a bankrupt employer. He also relied upon CJ:;; (J) r,', Rtf Kemp Products Ltd. (1978), 27 C.B.R. (N.S.) 1 (Ont. S.e. in bankruptcy), for the proposition that the bankruptcy of a company at the instance of a creditor does not constitute dismissal. He concluded as follows at p. 395: The plain language of ss. 40 and 40a does not give rise to any liability to pay termination or severance pay except where the employment is terminated by the employer. In our case, the employment was terminated, not by the employer, but by the making of a receiving order against Rizzo on April 14, 1989, following a petition by one of its creditors. No entitlement to either termination or severance pay ever arose. 15 Regarding s. 7(5) of the ESA, Austin J.A. rejected the trial judge's interpretation and found that the section does not create a liability. Rather, in his opinion, it merely states when a liability otherwise created is to be paid and therefore it was not considered relevant to the issue before the court. Similarly, Austin J.A. did not accept the lower court's view of s. 2(3), the transitional provision in the ESAA. He found that that section had no effect upon the intention of the Legislature as evidenced by the terminology used in ss. 40 and 40a. 16 Austin J.A. cdncluded that, because the employment of Rizzo's former employees was terminated by the order of bankruptcy and not by the act of the employer, ~~ - 15 - no liability arose with respect to termination, severance or vacation pay. The order of the trial judge was set aside and the Trustee's disallowance of the claims was restored. 4. Issues u u Cf) r-- r- co 17 This appeal raises one issue: does the termination of employment caused by --l C (1J U OJ CD 0) the bankruptcy of an employer give rise to a claim provable in bankruptcy for termination pay and severance pay in accordance with the provisions of the ESA? 5. Analysis 18 The statutory obligation upon employers to provide both termination pay and i severance pay is governed by ss. 40 and 40a of the ESA, respectively. The Court of Appeal noted that the plairt language of those provisions suggests that termination pay and severance pay are payable only when the employer terminates the employment. For , example, the opening words of s. 40(1) are: "No employer shall terminate the employment of an employee. . . ." Similarly, s. 40a(1a) begins with the words, "Where . . . fifty or more employees have their employment terminated by an employer. . . ." Therefore, the question on which this appeal turns is whether, when bankruptcy occurs, the employment can be said to be terminated "by an employer". 19 The Court of Appeal answered this question in the negative, holding that, where an employer is petitioned into bankruptcy by a creditor, the employment of its employees is not terminated "by an employer", but rather by operation oflaw. Thus, the Court of Appeal reasoned that, in the circumstances of the present case, the ESA termination pay and severance pay provisions were not applicable and no obligations arose. In answer, the appellants submit that the phrase "terminated by an employer" is ~~ - 16 - best interpreted as reflecting a distinction between involuntary and voluntary termination of employment. It is their position that this language was intended to relieve employers of their obligation to pay termination and severance pay when employees leave their jobs u C) voluntarily. However, the appellants maintain that where an employee's employment is involuntarily terminated by reason Of their employer's bankruptcy, this constitutes if) f- (') co ...J termination "by an employer" for the purpose of triggering entitlement to termination Co U co 0) 0, ~_. and severance pay under the ESA. 20 At the heart of this conflict is an issue of statutory interpretation. Consistent with the findings of the Court of Appeal, the plain meaning of the words of the provisions here in question appears to restrict the obligation to pay termination and severance pay to those employers who have actively terminated the employment of their employees. At first blush, bankruptcy does not fit comfortably into this interpretation. However, with respect, I believe this analysis is incomplete. 21 Although much has been written about the interpretation oflegislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter "Construction of Statutes"); Pierre- Andre Cote, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. g1! - 17 - Recent cases which have cited the above passage with approval include: R. v. Hydro- Quebec, [1997] 3 S.C.R 213**; Royal Bank of Canada v. Sparrow Electric Corp., [1997] I S.C.R. 411; Verdun v. Toronto-Dominion Bank, [1996] 3 S.e.R. 550; Friesen v. u u if) Canada, [1995] 3 S.e.R 103. !.....- r- co ...J 22 I also rely upon s. 10 of the Intelpretation Act, RS.O. 1980, c. 219, which CD U co m Go provides that every Act "shall be deemed to be remedial" and directs that every Act shall "receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit". 23 Although the Court of Appeal looked to the plain meaning of the specific provisions in question in the present case, with respect, I believe that the court did not pay sufficient attention to the scheme of the ESA, its object or the intention of the legislature; nor was the context of the words in issue appropriately recognized. I now turn to a discussion of these issues. 24 In Machtinger v. HOJ Industries Ltd., [1992] 1 S.e.R. 986, at p. 1002, the majority ofthis Court recognized the importance that our society accords to employment and the fundamental role that it has assumed in the life of the individual. The manner in which employment can be terminated was said to be equally important (see also ~ Wallace v. United Grain Growers Ltd., [1997] 3 S.e.R. 701). It was in this context that the majority in Machtinger described, at p. 1003, the object of the ESA as being the protection of ". . . the interests of employees by requiring employers to comply with certain minimum standards, including minimum periods of notice of termination". Accordingly, the majority concluded, at p. 1003, that, ". . . an interpretation of the Act ** See Erratum [1999] 2 S.e.R iv ~~ - 18 - which encourages employers to comply with the minimum requirements ofthe Act, and so extends its protections to as many employees as possible, is to be favoured over one that does not". u u (f) 25 The objects of the termination and severance pay provisions themselves are f'- ~~ 0:; _J also broadly premised upon the need to protect employees. Section 40 of the ESA CQ requires employers to give their employees reasonable notice of termination based upon () 0:; G) G-; length of service. One of the primary purposes of this notice period is to provide employees with an opportunity to take preparatory measures and seek alternative employment. It follows that s. 40(7)(a), which provides for termination pay in lieu of notice when an employer has failed to give the required statutory notice, is intended to "cushion" employees against the adverse effects of economic dislocation likely to follow from the absence of an opportunity to search for alternative employment. (Innis Christie, Geoffrey England and Brent Cotter, Employment Law in Canada (2nd ed. 1993), at pp. 572-81.) 26 Similarly, s. 40a, which provides for severance pay, acts to compensate long~ serving employees for their years of service and investment in the employer's business and for the special losses they suffer when their employment terminates. In R. v. TNT Canada Inc. (1996), 27 O.R. (3d) 546, Robins J.A. quoted with approval at pp. 556-57 from the words of D. D. Carter in the course of an employment standards determination in Re Telegram Publishing Co. v. Zwelling (1972), 1 L.A.e. (2d) 1 (Ont.), at p. 19, wherein he described the role of severance pay as follows: Severance pay recognizes that an employee does make an investment in his employer's business -- the extent of this investment being directly related to the length of the employee's service. This investment is the seniority that the employee builds up during his years of service. . . . Upon termination of the employment relationship, this investment of years of service is lost, and €3 - 19 - the employee must start to rebuild seniority at another place of work. The severance pay, based on length of service, is some compensation for this loss of investment. 27 In my opinion, the consequences or effects which result from the Court of u u (f) Appeal's interpretation of ss. 40 and 40a of the ESA are incompatible with both the r-- (') co object of the Act and with/he object of the termination and severance pay provisions themselves. It is a well established principle of statutory interpretation that the ...J C CD U co 0) Go legislature does not intend to produce absurd consequences. According to Cote, supra, an interpretation can be.considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile (Sullivan, Construction of Statutes, supra, at p. 88). 28 The trial judge properly noted that, if the ESA termination and severance pay provisions do not apply in circumstances of bankruptcy, those employees "fortunate" enough to have been dismissed the day before a bankruptcy would be entitled to such payments, but those terminated on the day the bankruptcy becomes final would not be so entitled. In my view, the absurdity of this consequence is particularly evident in a unionized workplace where seniority is a factor in determining the orderoflay-off. The more senior the employee, the larger the investment he or she has made in the employer and the greater the entitlement to termination and severance pay. However, it is the more senior personnel who are likely to be employed up until the time of the bankruptcy and. who would thereby lose their entitlements to these payments. ;: ;:; r- ; - 20 - 29 If the Court of Appeal's interpretation of the termination and severance pay provisions is correct, it would be acceptable to distinguish between employees merely on the basis of the timing of their dismissal. It seems to me that such a result would arbitrarily deprive some employees of a means to cope with the economic dislocation u U U) caused by unemployment. In this way the protections of the ESA would be limited rather r- r- eo this is an unreasonable result. ...J C m U eo m 0) than extended, thereby defeating the intended workingofthe legislation. In my opinion, 30 In addition to the termination and severance pay proVIsIons, both the appellants and the respondent relied upon various other sections of the ESA to advance their arguments regarding the intention of the legislature. In my view, although the majority of these sections offer little interpretive assistance, one transitional provision is particularly instructive. In 1981, s. 2( I) ofthe ESAA introduced s. 40a, the severance pay provision, to the ESA. Section 2(2) deemed that provision to come into force on January 1, 1981. Section 2(3), the transitional provision in question provided as follows: 2... . (3) Section 40a of the said Act does not apply to an employer who became a bankrupt or an insolvent person within the meaning of the Bankruptcy Act (Canada) and whose assets have been distributed among his creditors or to an employer whose proposal within the meaning oftheBankruptcy Act (Canada) has been accepted by his creditors in the period from and including the 1 st day of January, 1981, to and including the day immediately before the day this Act receives ~oyal Assent. 31 The Court of Appeal found that it was neither necessary nor appropriate to determine the intention of the legislature in enacting this provisional subsection. Nevertheless, the court took the position that the intention of the legislature as evidenced by the introductory words of ss. 40 and 40a was clear, namely, that termination by - 21 - reason of a bankruptcy will not trigger the severance and termination pay obligations of the ESA. The court held that this intention remained unchanged by the introduction of the transitional provision. With respect, I do not agree with either of these findings. u Firstly, in my opinion, the use of legislative history as a tool for determining the (J U) intention of the legislature is an entirely appropriate exercise and one which has often f'-- r- co been employed by this Court (see, e.g., R. v. Vasil, [1981] 1 S.C.R. 469, at p. 487; Paul v. The Queen, [1982] 1 S.e.R. 621, at pp. 635, 653 and 660). Secondly, I believe that ---' c (lJ U OJ G) en the transitional provision indicates that the Legislature intended that termination and severance pay obligations should arise upon an employers' bankruptcy: 32 In my view, by extending an exemption to employers who became bankrupt and lost control of their assets between the coming into force of the amendrnent and its receipt of royal assent, s. 2(3) necessarily implies that the severance pay obligation does in fact extend to bankrupt employers. It seems to me that, if this were not the case, no readily apparent purpose would be served by this transitional provision. 33 I find support for my conclusion in the decision of Saunders J. in Royal Dressed Meats Inc., supra. Having reviewed s. 2(3) of the ESAA, he commented as follows (at p. 89): . . . any doubt about the intention of the Ontario Legislature has been put to rest, in my opinion, by the transitional provision which introduced severance payments into the E.S.A. . . . it seems to me an inescapable inference that the legislature intended liability for severance payments to arise on a bankruptcy. That intention would, in my opinion, extend to termination payments which are similar in character. 34 This interpretation is also consistent with statements made by the Minister of Labour at the time he introduced the 1981 amendments to the ESA. With regard to the new severance pay provision he stated: ~ ~~ 35 - 22 - The circumstances surrounding a closure will govern the applicability of the severance pay legislation in some defined situations. For example, a bankrupt or insolvent firm will still be required to pay severance pay to employees to the extent that assets are available to satisfy their claims. u u if) f--- r- 0:0 . . . the proposed severance pay measures will, as I indicated earlier, be retroactive to January I of this year. That retroactive provision, however, will not apply in those cases ofbankruptcy and insolvency where the assets have already been distributed or where an agreement on a proposal to creditors has already been reached. ...J C cc U 00 G) ill (Legislature of Ontario Debates, 1 st sess., 32nd ParI., June 4, 1981, at pp. 1236-37.) Moreover, in the legislative debates regarding the proposed amendments the Minister stated: For purposes of retroactIvIty, severance pay will not apply to bankruptcies under the Bankruptcy Act where assets have been distributed. However, once this act receives royal assent, employees in bankruptcy closures will be covered by the severance pay provisions. (Legislature of Ontario Debates, 1st sess., 32nd ParI., June 16,1981, at p. 1699. ) Although the frailties .of Hansard evidence are many, this Court has recognized that it can playa limited role in the interpretation oflegislation. Writing for the Court in R. v. Morgentaler, [1993] 3 S.e.R. 463, at p. 484, Sopinka J. stated: . . . until recently the courts have balked at admitting evidence oflegislative debates and speeches. . . . The main criticism of such evidence has been that it cannot represent the "intent" of the legislature, an incorporeal body, but that is equally true of other forms of legislative history. Provided that the court remains mindful of the limited reliability and weight of Hansard evidence, it should be admitted as relevant to both the background and the purpose of legislation. ![:~~ - 23 - 36 Finally, with regard to the scheme of the legislation, since the ESA is a mechanism for providing minimum benefits and standards to protect the interests of employees, it can be characterized as benefits-conferring legislation. As such, according to several decisions of this Court, it ought to be interpreted in a broad and generous u u (f) f'- manner. Any doubt arising from difficulties of language should be resolved in favour of eo the claimant (see, e.g., Abrahams v. Attorney General of Canada, [1983] I S.C.R. 2,at p. 10; Hills v. Canada (Attorney General), [1988] I S.e.R. 513, atp. 537). It seems to (c U CD G) m me that, by limiting its analysis to the plain meaning of ss. 40 and 40a of the ESA, the Court of Appeal adopted an overly restrictive approach that is inconsistent with the scheme of the Act. 37 The Court of Appeal's reasons relied heavily upon the decision in Malone Lynch, supra. In Malone Lynch, Houlden J. held that s. 13, the group termination provision of the former ESA, RS.O. 1970, c. 147, and the predecessor tos. 40 at issue in the present case, was not applicable where termination resulted from the bankruptcy of the employer. Section 13(2) of the ESA then in force provided that, if an employer wishes to termina.te the employment of 50 or more employees, the employer must give notice of termination for the period prescribed in the regulations, "and until the expiry of such notice the terminations shall not take effect". Houlden J. reasoned that termination of employment through bankruptcy could not trigger the termination payment provision, as employees in this situation had not received the written notice required by the statute, and therefore could not be said to have been terminated in accordance with the Act. 38 Two years after Malone Lynch was decided, the 1970 ESA termination pay provisions were amended by The Employment Standards Act, 1974, S.O. 1974, c. 112. As amended, s. 40(7) of the 1974 ESA ellminated the requirement that notice be given - 24 - before termination can take effect. This provision makes it clear that termination pay "is owing where an employer fails to give notice of termination and that employment terminates irrespective of whether or not proper notice has been given. Therefore, in my opinion it is clear that the Malone Lynch decision turned on statutory provisions which are materially different from those applicable in the instant case. It seems to me that u () C(2 r-- r- OC! no application to a bankrupt employer. For this reason, I do not accept the Malone ...J C (1J U OC! GO CD Houlden J.'s holding goes no further than to say that the provisions of the 1970 ESA have Lynch decision as persuasive authority for the Court of Appeal's findings. I note that the courts in Royal Dressed Meats, supra, and British Columbia (Director of Employment Standards) v. Eland Distributors Ltd. (Trustee oj) (1996),40 C.B.R. (3d) 25 (B.C.S.e.), declined to rely upon Malone Lynch based upon similar reasoning. 39 The Court of Appeal also relied upon Re Kemp Products Ltd., supra, forthe proposition that although the employment relationship will terminate upon an employer's bankruptcy, this does not constitute a "dismissal". I note that this case did not arise under the provisions of the ESA. Rather, it turned on the interpretation of the term "dismissal" in what the complainant alleged to be an employment contract. As such, I do not accept it as authoritative jurisprudence in the circumstances of this case. For the reasons discussed above, I also disagree with the Court of Appeal's reliance on Mills- Hughes v. Raynor (1988),63 O.R. (2d) 343 (e.A.), which cited the decision in Malone Lynch, supra, with approval. 40 As I see the matter, when the express words of ss. 40 and 40a of the ESA are examined in their entire context, there is ample support for the conclusion that the words "terminated by the employh" must be interpreted to include termination resulting from the bankruptcy of the employer. Using the broad and generous approach to interpretation appropriate for benefits-conferring legislation, I. believe that these words n 41 42 - 25 - can reasonably bear that construction (see R. v. Z. (D.A.), [1992] 2 S.C.R. 1025). I also note that the intention of the Legislature as evidenced in s. 2(3) of the ESAA, clearly favours this interpretation. Further, in my opinion, to deny employees the right to claim U D ~, ESA termination and severance pay where their termination has resulted from their employer's bankruptcy, would be inconsistent with the purpose of the termination and f'-- r- eo severance pay provisions and would undennine the object of the ESA, namely, to protect ...J C CD () eo m 0l the interests of as many employees as possible. In my view, the impetus behind the termination of employment has no bearing upon the ability of the dismissed employee to cope with the sudden economic dislocation caused by unemploym~nt. As all dismissed employees are equally in need of the protections provided by the ESA, any distinction between employees whose termination resulted from the bankruptcy of their employer and those who have been terminated for some other reason would be arbitrary and inequitable. Further, I believe that such an interpretation would defeat the true meaning, intent and spirit of the ESA. Therefore, I conclude that termination as a result of an employer's bankruptcy does give rise to an unsecured claim provable in bankruptcy pursuant to s. 121 of the BA for termination and severance pay in accordance with ss. 40 and 40a of the ESA. Because of this conclusion, I do not find it necessary to address the alternative finding of the trial judge as to the applicability of s. 7(5) of the ESA. I note that spbsequent to the Rizzo bankruptcy, the termination and severance pay provisions of the ESA underwent another amendment. Sections 74( 1) and 75(1) of the Labour Relations and Employment Statute Law Amendment Act, 1995, S.O. 1995, c. 1, amend those provisions so that they now expressly provide that where employment is terminated by operation of law as a result of the bankruptcy of the employer, the employer wiil be deemed to have terminated the employment. However, - 26- s. 17 of the Interpretation Act directs that, "[t]he repeal or amendment of an Act shall be deemed not to be or to involve any declaration as to the previous state of the law". As a result, I note that the subsequent change in the legislation has played no role in determining the present appeal. u u (j) f'- OJ 6. Disposition and Costs ri:; () CD GO m 43 I would allow the appeal and set aside paragraph 1 of the order of the Court of Appeal. In lieu thereof, I would substitute an order declaring that Rizzo's former employees are entitled to make claims for termination pay (including vacation pay due thereon) and severance pay as unsecured creditors. As to costs, the Ministry of Labour led no evidence regarding what effort it made in notifying or securing the consent of the Rizzo employees before it discontinued its application for leave to appeal to this Court on their behalf. In light of these circumstances, I would order that the costs in this Court be paid to the appellant by the Ministry on a party-and-party basis. I would not disturb the orders of the courts below with respect to costs. . Appeal allowed with costs. Solicitorsfor the appellants: Sack, Goldblatt, Mitchell, Toronto. Solicitors for the respondent: Minden, Gross, Grafstein & Greenstein, Toronto. Solicitor jor the Minisl1y of Labour for the Province of Ontario, Employment Standards Branch: The Attorney Generalfor Ontario, Toronto.