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HomeMy WebLinkAboutAnderson 04-05-18 IN THE MATTER OF AN ARBITRATION BETWEEN: ALGONQUIN COLLEGE (the "college") -and- ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the "union") AND IN THE MATTER OF the grievance OPSEU No. 241534 - D. Anderson Grievance ARBITRATOR: D. D. Carter ApPEARANCES FOR THE UNION: S. Ballantyne, Counsel P. Champ, Counsel P. Jebourin, Articling Student D. Anderson, Grievor P. Kennedy, Local 415 J. Wilson, Local 415 ApPEARANCES FOR THE COLLEGE: J. D. Sharp, Counsel L. Presseau, Director Human Resources D. McCutcheon, Manager Employee Relations/ Workload/HRIS A hearing of this matter was held at Ottawa, Ontario, on January 28 and May 14, 2004. 2 AWARD This grievance alleges that the grievor was issued a lay-off notice in contravention of the terms of article 27.05 of the collective agreement. The union sought a declaration that the collective agreement had been violated, a direction that the grievor be reinstated in employment, and compensation for the grievor. The employer took the position that there had been no violation of the collective agreement but, in the alternative, argued that even if the collective agreement had been breached the union was estopped by its own conduct from asserting a claim based on that breach. At the hearing it was agreed that I would deal in this award only with the first issue of whether there had been a breach of the collective agreement and that, if I found in the union's favour on that issue, the hearing would be reconvened to deal with the college's estoppel argument. The facts underlying this grievance were not is dispute. The grievor, who was employed a full-time member of faculty was advised by the college, in a letter dated April 25, 2002, that it had declared a number of positions redundant and that he had been identified as among those faculty members who had been declared redundant. In a letter dated June 3, 2002, the college notified the grievor that a placement into another full-time 3 academic position was not available for the grievor at that time and that, while the college would continue to seek alternatives, his 90 day notice of lay-off period and his 90 day retraining period would begin on June 3, 2002. On June 20, 2002, however, the grievor was informed that as result of a temporary assignment the notice of layoff was being extended until March 25, 2003, and that the College Employment Stability Committee would continue to work on a more permanent placement for him. A Standard Workload Form in respect of this assignment was prepared. On June 20,2002, the grievance now before me was filed, alleging a violation of article 27.05 in that the grievor had been given a notice of layoff when he was assigned work and no longer in the position of being laid-off. The grievor did teach in the fall semester pursuant to that assignment. On December 23, 2002, the college advised the grievor by letter that it was no longer prepared to continue this assignment for winter semester 2003 and that his notice period would be reinstated effective January 2, 2003. It was also not in dispute that the college had advised the union in a much earlier memorandum of October 30, 1997 dealing with the situation of other employees given temporary assignments that it did not intend to rescind their lay-off notices but that it would not raise a timeliness objection based on an employee grieving the lay-off at the time when the 4 lay-off was confirmed. The union argued that article 27.05 did not contemplate that the lay- off notice could be suspended for temporary assignments of the type that occurred in this case. Such a practice, according to the union, gave rise to the possibility of an indefinite extension of the lay-off notice - a possibility that was inconsistent with the underlying purpose of article 27.05 which was to avoid unnecessary anxiety for redundant employees. In the union's view, the problem with the employer's approach of providing a temporary assignment but only suspending the lay-off notice was that it placed the employee in a form of employment limbo that could only generate uncertainty and anxiety for the employee. It was the union's position that, in the absence of express authorization in the collective agreement or waiver by the union, the employer was not permitted to extend the notice of lay-off. The college argued that its practice of providing temporary assignments and suspending the lay-off notice worked to an employee's benefit since temporary assignments had the potential to lead to permanent assignments. Moreover, if the college were prohibited from suspending the lay-off notice when making temporary assignments, then it might simply discontinue making temporary assignments with the result that employees 5 would be laid-off sooner. The college pointed out that article 27.05 simply required a "written notice of not less than 90 calendar days" and placed no express restriction on notice periods that might be made longer through an extension such as occurred in this case. Moreover, the extension in this case was consistent with those provisions of the collective agreement that expressly contemplated an extension of the notice period for other types of temporary assignments involving the displacement of other employees. Accordingly, its practice in this case of providing a temporary assignment to the grievor and suspending his notice of layoff was completely consistent with the scheme established by article 27.05 The relevant portions of the collective agreement are set out below: Layoff and Involuntary Transfer 27.05 When a College plans to lay-off or to reduce the number of full-time employees who have completed the probationary period, or plans the involuntary transfer of such employees to other positions than those previously held as a result of such a planned lay-off or reduction of employees the following procedure shall apply: (i) The College will notify the Union Local President and the College Employment Stability Committee (CESC) of the planned staff reduction and the courses, programs or services affected. (ii) Within seven calendar days of the receipt of such notification, the CESC shall meet for the purpose of the College advising of the circumstances giving rise to the planned staff reduction and the employees affected. (iii) If requested by a member of the CESC within three calendar days following the meeting under 27 (ii), the CESC shall meet within seven calendar days of receipt of such request for the purpose of discussing 6 the planned staff reduction, the circumstances giving rise to the reduction, the basis for the selection of the employees affected and the availability of alternative assignments. It being understood that the College reserves the right to determine the number and composition of full-time, partial-load and part-time or sessional teaching positions, the College shall give preference to continuation of full-time positions over partial-load, part-time or sessional positions subject to such operational requirements as the quality of the programs, their economic viability, attainment of program objectives, the need for special qualifications and the market acceptability of the programs to employers, students and the community. The CESC may require that further meetings be held. (iv) The CESC and the parties shall maintain the confidentiality of the meetings and the identity of all employees discussed except as specifically waived by mutual consent of the Union Local and the College. (v) Additional representatives of the College and the Union In equal numbers may attend CESC meetings under 2705 (ii) and 27 (iii) where requested by the CESC to assist the committee, However, the attendance of additional persons pursuant to this paragraph shall not cause any delay in the meetings or the notice to individuals affected by the staff reduction. (vi) Upon completion of its deliberations the CESC shall forward its recommendations, if any, to the College President and the Union Local President, who shall maintain the confidentiality of the recommendations. (vii) When a College decides, following such meetings, to proceed with a lay-off of one or more employees who have completed the probationary period written notice of lay-off of not less than 90 calendar days shall be given to employees being laid off. If requested by the employee, a College representative will be available to meet with the employee within three calendar days to discuss the basis of the College selection of the employees affected. 27.06 A When the College decides to layoff or to reduce the number of full- time employees who have completed the probationary period or transfer involuntarily full-time employees who have completed the probationary period to another position from that previously held as a result of such lay- off or reduction of employees, the following placement and displacement 7 provisions shall apply to full-time employees so affected. Where an employee has the competence, skill and experience to fulfill the requirements of the full-time position concerned, seniority shall apply consistent with the following: (i) An employee will be reassigned within the College to a vacant full- time position in lieu of being laid off if the employee has the competence, skill and experience to perform the requirements of a vacant position. (ii) Failing placement under 27.06 A (i), such employee shall be reassigned to displace another full-time employee in the same classification provided that: (a) the displacing employee has the competence, skill and experience to fulfill the requirements of the position concerned; (b) the employee being displaced has lesser seniority with the College. (iii) Failing placement under 27.06 A (ii), such employee shall be reassigned to displace a full-time employee in another classification upon acceptance of the identical employment conditions as the classification concerned, provided that: (a) the displacing employee has the competence, skill and experience to fulfill the requirements of the position concerned; (b) the employee being displaced has lesser seniority with the College. (iv) Failing placement under paragraph 27.06 A (iii), such employee shall be reassigned to displace two partial-load employees provided that: (a) the displacing employee has the competence, skill and experience to fulfill the requirements of the position concerned; and (b) each of the partial-load employees being displaced has lesser months of service with the College as determined in Article 26, Partial-load Employees, than such displacing employee's months of seniority; and (c) it is understood that the College retains the right to assign additional work to the employee, where warranted, subject to the limits prescribed by Article 11, Workload, 8 (V) (a) Failing placement under 27,06 A (iv) or where the employee has waived in writing the right in 27.06 A (iv), such employee shall be reassigned to displace one partial-load employee and one or more part-time employees whose assigned courses are as described in 27.06 A (v) (b), provided that: (i) the displacing employee has the competence, skill and experience to fulfill the requirements of the position concerned; and (ii) each of the employees being displaced has lesser months of service with the College (as determined in Article 26, Partial-load Employees, or Appendix VI, as appropriate) than such displacing employee's months of seniority; and (iii) it is understood that the College retains the right to assign additional work to the employee where required so that the work assignment so created constitutes a full-load assignment in accordance with the limits prescribed by Article 11, Workload. (v) (b) The courses taught by the part-time employees displaced must be: (i) the same as, or (ii) essentially the same as, or (iii) pre-requisite courses to those taught by the partial-load employee concerned. (v) (c) Such employee shall have the lay-off notice extended until completion of the assignment so created and shall maintain current salary and benefits for the duration of that assignment. (v) (d) Upon completion of the assignment so created, or as mutually agreed between the College and the employee, such employee shall be reassigned to a vacant full-time position if the employee has the competence, skill and experience to perform the requirements of a vacant full-time position. (v) (e) Failing placement under 27.06 A (v) (d), such employee shall be laid off without further notice upon completion of the partial-load assignment. (vi) (a) Failing placement under 27 A (v) or where the employee has waived in writing the right in 27 A (v), such employee shall be reassigned to displace one partial-load employee and engage in approved retraining activities such that the employee retains current 9 salary and benefits for the duration of the partial-load assignment provided that: (i) the displacing employee has the competence, skill and experience to fulfill the requirements of the position concerned; and (ii) the partial-load employee being displaced has lesser months of service with the College (as determined in Article 26, Partial Employees) than such displacing employee's months of seniority. (vi) (b) Such employee shall have the lay-off notice extended until completion of the partial-load employee's assignment and shall maintain current salary and benefits for the duration of the partial-load assignment. (vi) (c) Upon completion of the partial-load assignment, or as mutually agreed between the College and the employee, such employee shall be reassigned to a vacant full-time position if the employee has the competence, skill and experience to perform the requirements of a vacant full-time position. (vi) (d) Failing placement under 27.06 A (vi) (c), such employee shall be laid off without further notice upon completion of the partial-load assignment. (vii) (a) Failing placement under 27.06 A (vi) (a), or where the employee has waived in writing the right in 27.06 A (vi) (a), such employee shall be reassigned to displace a sessional employee (who has more than 90 days remaining on the sessional employee term appointment) provided that the displacing employee has the competence, skill and experience to fulfill the requirements of the position concerned. (vii) (b) Such employee shall have the lay-off notice period extended until completion of the sessional employee's assignment and shall maintain current salary and benefits for the duration of the sessional assignment. (vii) (c) Upon completion of the sessional assignment or as mutually agreed between the College and the employee, such employee shall be reassigned to a vacant full-time position if the employee has the competence, skill and experience to perform the requirements of a vacant full-time position. (vii) (d) Failing placement under 27.06 A (vii) (c), such employee shall 10 be laid off without further notice. (viii) (a) Failing placement under 27.06 A (vii) (a), or where the employee has waived in writing the right in 27.06 A (vii), such employee shall be reassigned to displace a part-time employee upon acceptance of the identical employment conditions as the part-time employee concerned provided that: (i) the displacing employee has the competence, skill and experience to fulfill the requirements of the position concerned; and (ii) the part-time employee being displaced has lesser months of service with the College as determined in Appendix VI than such displacing employee months of seniority. (viii) (b) Such a reassigned person shall be deemed to be laid off and eligible for recall in accordance with 27.09 Band 27.09 C, 27.03 0 and the rights under 27.09 A. (viii) (c) Failing placement under 27.06 A (viii) (a), such employee shall be laid off with written notice of not less than 90 calendar days. Such employee shall be granted release from all or part of the normally assigned duties, for this period of notice, for the purpose of engaging in retraining activities, where such release is feasible given the normal operational requirements facing the College. Where such release is not possible, the notice period shall be extended by up to 90 days to permit retraining and the employee shall maintain current salary and benefits for the duration of the notice period. (viii) (d) At the termination of the period referred to in 27 A (viii) (c), such employee shall be reassigned to a vacant full-time position, if the employee has the competence, skill and experience to perform the requirements of a vacant full-time position. (viii) (e) Failing placement under 27.06 A (viii) (d), such employee shall be laid off without further notice. 27.06 B Consideration of an employee's experience shall include educational, teaching, practical, research, or other experience, of which the College has been made aware. 27.07 The lay-off of employees arising from a strike by employees in the support staff bargaining unit shall not require notice as set out in 27.05 and 27.14. Provided the lay-off of employees is in a uniform manner, 27.06 shall not apply. 11 A probationary employee shall have employment bridged over the period and shall be credited with employment as at the date of lay-off. Lay-Off Grievances 27.08 A An employee, claiming improper lay-off, contrary to the provisions of this Agreement, shall state in the grievance the positions occupied by full-time and non-full-time employees whom the employee claims entitlement to displace. The time limit referred to in 32.02 for presenting complaints shall apply from the date written notice of lay-off is given to the employee. 27.08 B If the grievance is processed through Step 2, the written referral to arbitration in32.03 shall, specify, from the positions originally designated in 27.08 A, two full-time positions, or positions occupied by two or more partial-load or part-time employees (the sum of whose duties will form one full-time position), who shall thereafter be the subject matter of the grievance and arbitration. The grievor shall be entitled to arbitrate the grievance thereafter under only one of (i), (ii) (iii), (iv), (v), (vi), (vii), or (viii) of 27.06A. It is evident from a reading of these job security provisions that the parties did not deal expressly with the exact fact situation that gave rise to this grievance - a temporary assignment not involving the displacement of another employee. Nevertheless, the parties did expressly contemplate other types of work assignments involving the displacement of other employees that would be temporary in nature. In each of these cases the collective agreement expressly provides for the extension of the lay-off notice until the completion of these assignments. See article 27.06 A (v) (c), (vi) (b), and (vii) (b). In this case we are faced with another form of temporary 12 assignment and the employer followed a similar procedure by extending the notice of lay-off until the completion of that assignment. The procedure followed was totally congruent with what was expressly contemplated by the collective agreement for other types of temporary assignments. In these circumstances, therefore, it is difficult to conclude that the employer's actions were in any way inconsistent with the overall scheme established by the job security provisions of the collective agreement. Furthermore, it is also difficult to see how an employee would be any worse off as the result of the practice adopted by college in this case. Accruing to the advantage of the employee is the fact that employment continues while the lay-off notice is extended and, as the result of the college's earlier undertaking, the employee's right to grieve is in no way prejudiced. Granted an employee given a temporary assignment is faced with an uncertain employment situation, but the uncertainty of continued employment through temporary assignment would be appear to be preferable to the greater uncertainty of unemployment. There is no question that the ongoing possibility of lay-off places the employee under a great deal of stress but continued employment under a temporary assignment would still appear to be the lesser, rather than greater, of the two evils. 13 For these reasons I have reached the conclusion that the college in this case has not violated the collective agreement. Accordingly, this grievance is dismissed. Dated at Kingston, Ontario, this 18th day of May, 2004. @l D. D. Carter, Arbitrator