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HomeMy WebLinkAboutGilmet 19-01-021 IN THE MATTER OF AN ARBITRATION B E T W E E N: ALGONQUIN COLLEGE (the College) -AND- ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the Union) AND IN THE MATTER OF THE GRIEVANCE OF JACQUELINE GILMET AND IN THE MATTER OF THE COLLEGE’S PRELIMINARY OBJECTION CONCERNING ARBITRABILITY David K.L. Starkman Arbitrator APPEARANCES FOR THE EMPLOYER Jock Climie Counsel Jeff Kennedy Student-at-Law Helen Huang Labour Relations Specialist Erin Langevin Acting Director Labour Relations Chris Janzen Dean of School of Advanced Technology APPEARANCES FOR THE UNION Wassim Garzouzi Counsel Julia Williams Counsel Pat Kennedy Local President JP Lamarche Chief Steward Tracy Henderson Vice President 2 A Hearing in this matter was held on November 30, 2018 at Ottawa, Ontario AWARD On behalf of Jaqueline Gilmet, the Union grieved that: ..The college has violated specifically, but not exclusively Articles 1, 4, 6, 24 and 26 of the collective agreement and is in violation of my human rights, pursuant to the Ontario Human Rights Code, the Occupational Health and Safety Act and any other article or statute that may apply through its failure to manage. The Employer has failed to address sexual harassment in the workplace creating a toxic and harmful workplace environment. As well the College has failed to provide a working environment that is physically and psychologically safe. As well, I have experienced a reduction in my employment hours. Remedy Required Full redress including: That I be issued a written letter of apology. That all discriminatory behaviour cease and desist. The toxic workplace environment be removed. Loss of wages associated with removal of Partial Load status be remitted. Restoration of Partial Load status as per Article 26.10 D & E. The college ensure a workplace free from sexual harassment. That I be compensated for the stress and anxiety this situation has caused me. The College brought a preliminary motion that the grievance is not arbitrable because Ms Gilmet was not a member of the bargaining unit at the time of the filing of the grievance. No viva voce evidence was heard with respect to this motion which was argued based on documents. 3 In May - June 2017 the grievor was employed as a part time support staff technologist working in a laboratory. She brought a complaint to her manager that she was being sexually harassed by a co-worker who also worked in the same laboratory. On July 11, 2017 Ms Rebecca Trueman, the Chair of Applied Science and Environmental Technology, wrote to the grievor advising as follows: “I spoke with John and he assures me that all will be well. I don’t think there will be any issues. If you would like to discuss please give me a call.” In the fall of 2017 the grievor was working in a part time capacity and was told that she would have partial load status for the winter of 2018. There was a work stoppage in the fall of 2017. In January, 2018 the grievor was teaching part time. She sent an email to Ms Penny Dockrill in Human Resources inquiring as to whether her complaint from July, 2017 had been forwarded to Human Resources at that time. She was advised that it had not. The grievor filed a formal complaint on January 31, 2018 concerning the events of May – June 2017. The Union filed a grievance on behalf of Ms Gilmet on February 6, 2018. By correspondence dated February 14, 2018 the grievor was advised as follows: This is a follow up letter advising you that the investigation into your harassment complaint has been completed. The formulation of the conclusion was based firstly on a finding of fact. Based on the information gathered during the investigation it was determined whether the incident had occurred. Following a finding of fact, 4 Algonquin College’s HR 22 Respectful Workplace and HR 18 Employee Code of Conduct, the Occupational Health and Safety Act (OHSA) and the Ontario Human Rights Code (the Code) were applied. By applying the finding of facts to the principles found in both these policies, the OHSA and the Code, it was determined that you were harassed. As such, appropriate corrective action will be taken against John Tufts. As a reminder, in order to maintain confidentiality, please refrain from discussing the content of the complaint with staff at Algonquin College. All other parties involved in the investigation will be reminded to do the same. Feel free to contact me if you have any questions or concerns. Regards, Erin Langevin Labour Relations Specialist Algonquin College SUBMISSIONS OF THE PARTIES The recognition clause in article 1.01 of the collective agreement provides as follows: 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, (ii) persons above the rank of Chair, Department Head or Director, (iii) persons covered by the Memorandum of Agreement with the Ontario Public Service Employees Union in the support staff bargaining unit, (iv) other persons excluded by the legislation, and (v) teachers, counsellors and librarians employed on a part-time or sessional basis. 5 NOTE A: Part-time in this context shall include persons who teach six hours per week or less. NOTE B: Sessional in the context shall mean an appointment of not more than 12 months duration in any 24 month period. Article 4 of the collective agreement provides in part as follows: Article 4 NO DISCRIMINATION/BULLYING/PSYCHOLOGICAL HARASSMENT 4.01A The parties agree that, in accordance with the provisions of the Ontario Human Rights Code, there shall be no discrimination or harassment against any employee by the Union or the Colleges, by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability…. 4.01B It is understood that nothing contained in 4.01 A limits the right of an employee to grieve in accordance with the procedure as set forth in Article 32, Grievance and Arbitration Procedures. Where an employee has a complaint about workload based upon the provisions in the Ontario Human Rights Code, the employee shall have a right to pursue the complaint in accordance with the procedures set out in Article 11.02. 4.01 C The parties agree that the implementation of a special program under Section 14 of the Human Rights Code, R.S.O. 1990 as amended, shall be deemed not to contravene 4.01 A. 4.02 A 1 All employees covered by this Agreement have a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee. Harassment means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome. 4.02 A 2 It is agreed that the responsibility of the College under clause 4.02 A 1 with respect to the conduct of an agent of the employer or of another employee shall be limited to the taking of all reasonable means to ensure that the conduct complained of does not occur. 6 4.02 A 3 Every employee covered by this Agreement has a right to be free from: (i) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement of the employee where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or (ii) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a positon to confer, grant or deny a benefit or advancement to the employee. 4.02 A 4 The College shall make reasonable provisions to ensure that employees are free from bullying/psychological harassment as defined within this article The College and the Local Union shall cooperate to the fullest extent possible to ensure the work environment is free from bullying/psychological harassment. It is not disputed that the grievor was teaching six hours per week or less in the winter of 2018 when she filed her grievance and as such was a part time employee and not a member of the academic bargaining unit. The College submitted that a person who is not a member of the bargaining unit is not entitled to grieve and the Union is not entitled to grieve on their behalf. Reference was made to the decision in Re Greater Niagara General Hospital and Ontario Nurses’ Association (1987) 3 L.A.C. (3d) 140 (Brown) where at para. 21 the Board made the following comments: 21 …The transferring employees does not obtain any rights under the full- time collective agreement until she is hired as a full-time employee as defined in that agreement. Therefore, that person cannot challenge the management rights clause or art. 18.04 of the full-time collective agreement. Apart from the question of the association’s right to grieve in the abstract a practice of the hospital, a part-time employee, who seeks to 7 transfer to the full-time unit, cannot attempt to enforce provisions of a collective agreement by which she is not covered and fall outside of the terms of the collective agreement under which she is employed as a part- time employee of the hospital. Nor, therefore, would the association have status to lodge a grievance concerning a matter not relating to employees covered by the agreement. As we have found that part-time employees would not have the right to grieve the filling of a vacancy under the full- time collective Agreement, the association would not, in the abstract, be able to take any different position. Reference was also made to article 32.09 of the collective agreement which provides: 32.09 The Union or Union Local shall have the right to file a grievance based on a difference directly with the College arising out of the Agreement concerning the interpretation, application, administration or alleged contravention of the Agreement. Such grievance shall not include any matter upon which an employee would be personally entitled to grieve and the regular Grievance Procedure for personal or group grievance shall not be by-passed except where the Union establishes that the employee has not grieved an unreasonable standard that is patently in violation of this Agreement and that adversely affects the rights of employees. The College referred to the decision in George Brown College and OPSEU, unreported, August 5, 1995 (G. Brent) which determined that there was nothing in the collective agreement which fettered management’s right to fill full-time positions and therefore a partial load employee could not challenge management’s exercise of discretion in filling a full-time vacancy. Reference was also made to the decisions in Ontario Power Generation and The Society of Energy Professionals (2004) 137 L.A.C. (4th) 44 (Goodfellow), Ottawa Hospital and O.N.A. 2009 CarswellOnt 19934 (J. McNamee), Westin Harbour Castle and U.F.C.W., Local 333 2010 CarswellOnt 17919 (R.O. McDowell), 8 Humber River Hospital and TC, Local 419 2014 CarswellOnt 15672 (G. Luborsky), and Newfoundland and Labrador Housing Corp. and CUPE Local 1860 (Hussey), (2015) 261 L.A.C. (4th) 81 (J.C. Oakley). The Union submitted that where a party brings a preliminary motion to dismiss a grievance because of lack of jurisdiction, all of the facts alleged are assumed to be true and capable of being proved and in this regard reference was made to the decision in Sault College and OPSEU (Running Grievance) [2012] O.L.A.A. No. 640 (K.G. O’Neill). In that matter the employer brought a preliminary objection to the grievance alleging that there was no arguable case for a breach of the collective agreement. In determining the matter, the Board commented at paragraph 30 as follows: 30 It is important to emphasize that in deciding on a preliminary motion, such as this, the issue is not whether the grievance will surely succeed, but whether there is an arguable case. The question is whether there is a case to be met at all, which is assessed without regard to the strength of the employer’s case, and assuming the union’s assertions of fact are true and capable of proof. The arbitrator’s task, on a motion challenging a grievance for want of a prima facie case, is to look at the asserted facts, assuming them to be true and provable for the purposes of the motion, and determine whether they are capable of supporting the violation of the collective agreement alleged in the grievance. Findings concerning any disputed facts are not made at this stage. The Union submitted that the provisions of the collective agreement were particular to the Colleges and decisions in other workplaces were not particularly relevant and referred to a number of decisions in which employees who were not in the bargaining unit were grieving that they should be placed in the bargaining unit. 9 In this respect reference was made to the decision in Algonquin College and OPSEU, unreported, March, 1996, (M. Bendel). In that matter the College was treating the grievor as a sessional employee excluded from the bargaining unit and the grievor was alleging that she had completed sufficient teaching hours to be included in the bargaining unit. There was no preliminary objection as to jurisdiction and the Board heard viva voce evidence over several days and rendered a decision. Similarly in Mohawk College and OPSEU Grievances of D. Sobczak , unreported, April 30, 1993 (M.G.Mitchnick) there was an issue as to whether the grievor was a sessional employee excluded from the bargaining unit or whether she had sufficient hours to be included. There was no preliminary objection as to arbitrability and the Board heard viva voce evidence over several days and rendered a decision. In St. Lawrence College and OPSEU – Grievance of Kingston –Floyd), unreported, March 26, 2018, (J. Parmar) the issue was whether the grievor was a partial load or sessional employee. There was no objection as to arbitrability and the Board heard viva voce evidence and rendered a decision. The Union also referred to the decisions in St. Lawrence College and OPSEU - grievance of R Nutley, unreported February, 1994 (M.G. Mitchnick), University Health Network – Toronto Western Hospital and Canadian Union of Public Employees, (2017) 284 L.A.C. (4th) 199 (P. Knopf), Fanshawe College of Applied Arts and Technology and OPSEU, unreported, June 26, 1996 (H.D. Brown), 10 The Union also alleged that the College had deliberately not given the grievor a partial load contract in the winter of 2018 in order to punish her for making allegations of sexual harassment and also to prevent her from grieving with respect to that matter. In other words, the Union alleged that, “but for” the improper actions of the College, the grievor would have been a partial load teacher in the winter of 2018 and would have been part of the academic bargaining unit and capable of filing a grievance. The College denied this allegation and asserted that there were valid business reasons for not giving the grievor a partial load contract in that semester. DECISION Article 6.01 of the collective agreement provides as follows: 6.01 It is the exclusive function of the Colleges to: (i) Maintain order, discipline and efficiency (ii) hire, discharge, transfer, classify, assign, appoint, promote, demote, lay off, recall, and suspend or otherwise discipline employees subject to the right to lodge a grievance in the manner and to the extent provided in this agreement. (iii) manage the College and, without restricting the generality of the foregoing, the right to plan, direct and control operations, facilities, programs, courses, systems and procedures, direct its personnel, determine complement, organization, methods, and the number, location and classification of personnel required from time to time, the number and location of campuses and facilities, 11 services to be performed, the scheduling of assignments and work, the extension, limitation, curtailment, or cessation of operations and all other rights and responsibilities not specifically modified elsewhere in the Agreement. 6.02 The Colleges agree that these functions will be exercised in a manner consistent with the provisions of this Agreement. It is apparent that the parties intended that part time employees, being employees who teach six hours per week or less, not be included in the bargaining unit. It is also apparent from the jurisprudence that employees who are not in the bargaining unit are not entitled to grieve that management has exercised its management right(s) unfairly unless there is some other provision in the collective agreement which constrains the exercise of that right. An exception seems to be grievances which allege that the Employer has not granted an employee a particular status, such as partial load, based on the hours of work or the workload of duties actually being performed. It is also apparent that the parties treat allegations of harassment, and in particular sexual harassment, seriously and have established a detailed process in the collective agreement for dealing with such issues. In this matter the Union has alleged that the College deliberately did not assign the grievor more than six teaching hours per week as a reprisal for filing a harassment complaint and in order to prevent her from filing a grievance. The College has denied this allegation and submitted that there were valid business reasons for assigning the grievor part time hours and that there was 12 documentation to support this decision which had not been included in the materials presented at the hearing. The Union’s allegation is a serious allegation. I did not hear any oral evidence with respect to this matter. There are a number of the grievor’s contracts of employment in the material presented but no explanation as to why changes were ultimately made to the contract which resulted in the grievor not being given partial load status in the winter of 2018. None of the jurisprudence to which I was referred deals with a situation in which it is alleged that an employer used the provisions of the collective agreement to prevent an employee from accessing the grievance procedure to pursue an allegation of workplace misconduct. After careful consideration I have determined that I do not have sufficien t information concerning why the grievor was not given partial load hours in the winter of 2018 to make an informed decision as to whether I have the jurisdiction to determine this grievance. The Union submitted that, for the purpose of this motion, its allegation of Employer misconduct must be accepted and is sufficient to give this Board the jurisdiction to consider the grievance. The Employer submitted that there was no misconduct, but even if the Employer had acted improperly, such improper activity would not be sufficient to give this Board the jurisdiction to determine the merits of the grievance because the grievor was , despite any alleged misconduct, not a member of the bargaining unit at the time of the filing of the grievance. 13 Prior to making a decision concerning this matter I wish to give the parties the opportunity to present further evidence concerning the decision which resulted in the grievor not being given partial load status in the winter of 2018. This evidence can be further documents or written submissions or the hearing can be scheduled for continuation to hear viva voce evidence or oral submissions at the request of either party. If no further evidence is presented I will proceed to make a final determination as to arbitrability. Dated at Maberly, Ontario this 2nd day of January, 2019 David K.L. Starkman.