HomeMy WebLinkAboutMcGinn 21-02-26
IN THE MATTER OF AN ARBITRATION
UNDER THE COLLECTIVE AGREEMENT
AND THE ONTARIO LABOUR RELATIONS ACT
BETWEEN:
ALGONQUIN COLLEGE
(“the Employer”)
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
LOCAL 415
(“the Union”)
GRIEVANCE OF KEN MCGINN
2019-0415-0068
AWARD
Arbitrator: Barry Stephens
Union Counsel: Lesley Gilchrist, OPSEU Grievance Officer
Employer Counsel: Jock Climie, Emond Harnden
Heard on September 16 , 2020
By Videoconference
AWARD
[1] This grievance involves a claim that the grievor was denied employment as a
partial load instructor as retribution for pursuing a previous grievance to arbitration. The
employer raised a preliminary objection that the grievance was not timely under the
collective agreement. This award deals solely with the timeliness objection.
[2] The parties argued the timeliness objection on the basis of an agreed statement
of fact and timeline, which was as follows:
Overview
The Grievor began employment as a Partial Load Professor in the Interactive Media
Department (“IMD”) of Algonquin College in the Fall 2012 semester. He was employed as
a Partial Load Professor until Fall 2019.
On October 15, 2019 the Grievor and the Union filed a complaint under 32.01 of the
Collective Agreement. On October 16, 2019 the Employer responded to the Complaint,
declining a meeting alleging that the Grievor lacked standing to grieve and was “out of
timelines for filing a complaint.”
On October 18, 2019 the Grievor and the Union filed a grievance numbered 19A74 citing
a violation of Articles 1, 3 and 6 of the Collective Agreement. The Union is alleging that
the College’s exercise of hiring rights and their rights under 26.10 D and E are tainted by
improper considerations, specifically reprisal against the Grievor for exercising his
grievance rights under the Collective Agreement. The College does not concede any of
the allegations, and reserves its ability to hold the Union to strict proof in any argument
on the merits.
Chronology
On May 10, 2016 the Grievor filed a prior grievance (the “Knopf grievance”).
A little over two years later, on July 19, 2018 a decision was rendered on that grievance.
The College was successful and the grievance was dismissed.
The Grievor was assigned partial-load workloads for Fall 2016, Winter 2017, Fall 2017,
Winter 2018, Fall 2018, Winter 2019 and Summer 2019 semesters.
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On June 11 the Grievor was alerted by email that there were no courses available to him
for Fall 2019. He requested an opportunity to speak to the Chair, who agreed.
On June 17, 2019 the Grievance and Arbitration timelines under the Collective Agreement
were suspended by agreement of the parties. They were reactivated on August 18, 2019.
(Page 4)
On June 18, 2019 the Grievor had a meeting with his Chair. The Chair informed him that
he would not be receiving any Teaching Contact Hours (“TCH”) for the Fall 2019 semester.
The Grievor and the Union followed up with a meeting with the Chair on July 23, 2019.
This meeting was the subject of an email sent to the President of the College on July 23
2019. (Page 5)
On July 25, 2019 a response was received from Robyn Heaton. (Page 11).
On August 12, 2019 the Grievor emailed the President of the College. (Page 6).
On August 16, 2019, the President of the College responded to the Grievor (Page 8). The
email states that he “followed up” with the Chair and directs the Grievor to the Chair for
information.
On August 16, 2019, the (then) Local President of OPSEU Local 415 email the President of
the College to discuss the Grievor’s assignment. (Page 8)
On August 16, 2019, the Grievor’s partial load contract for the summer semester comes
to an end.
On August 19, 2019 the Grievor met with the Chair, Sherryl Fraser who once again told
him there were not teaching hours for him in the Fall and confirmed that he would not be
teaching Photography as those courses had been assigned to other teachers.
On August 29, 2019 the (then) Chief Steward wrote Robin Heaton. The Dean responded
on September 3, 2019. (Pages 10-11)
On September 4, 2019, the Fall semester’s classes began.
On September 26, 2019, the (then) Local President of OPSEU 415 emailed the President
of the College about various matters, including the Grievor. (Page 13).
The President of the College responded on October 9, 2019. (Page 14)
On October 15, 2019 the Grievor and the Union filed a complaint under 32.01 of the
Collective Agreement. On October 16, 2019 the Employer responded to the Complaint,
declining a meeting alleging that the Grievor lacked standing to grieve and was “out of
timelines for filing a complaint.” (Page 15).
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The Union responded on October 16, 2019.
The Union filed a grievance on October 18, 2019 (Page 2), and received a response on
October 22, 2019. (Page 3).
The Union referred the Grievance to Arbitration on October 22, 2019.
The Grievance was initially scheduled for a hearing on May 19, 2020. This hearing day
was adjourned due to COVID related rescheduling. It was rescheduled to September 16,
2020.
Counsel for the Employer raised the issue of timeliness on or around May 7, 2019.
The parties added at the hearing an agreed entry on the chronology that they did hold
any step meetings as contemplated by Article 32 with respect to the dispute.
[3] Article 32.01 of the collective agreement sets out the time limits for initiating a
grievance at the complaint stage in the following terms:
“It is the mutual desire of the parties that complaints of employees be adjusted as quickly
as possible and it is understood that if an employee has a complaint, the employee shall
discuss it with the employee's immediate supervisor within 20 days after the
circumstances giving rise to the complaint have occurred or have come or ought
reasonably to have come to the attention of the employee in order to give the immediate
supervisor an opportunity of adjusting the complaint. The discussion shall be between the
employee and the immediate supervisor unless mutually agreed to have other persons in
attendance. The immediate supervisor's response to the complaint shall be given within
seven days after discussion with the employee.”
Article 32.04 A stipulates that grievances not processed by the grievor within the time
limits shall be deemed to be abandoned:
“If the grievor fails to act within the time limits set out under the Grievance Procedure or
Arbitration Procedure, the grievance will be considered abandoned.”
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The collective agreement thus provides that grievances that are not initiated as a
complaint with the employee’s immediate supervisor within twenty days are deemed to
be abandoned.
Employer Submissions
[4] The key phrase in Article 32.01 is the trigger for the 20-day time limit for filing a
complaint, which is stipulated to begin, “…20 days after the circumstances giving rise to
the complaint have occurred or have come or ought reasonably to have come to the
attention of the employee.” The employer argued that the decision in Sault College
(Piotrowski) set out the interpretation of this language. The key factor, the employer
submitted, was when the event that gives rise to the grievance actually occurs. In Sault
College the grievor had been on professional development leave. Before she took the
leave, an official of the College explained how her vacation credits would be treated
during the leave. The employer argued that the grievance time limits ran from the date
of this explanation. However, the arbitrator agreed with the union that the twenty days
was not triggered until the grievor was denied her vacation credits on her return to work
after the leave.
[5] Using the Sault College decision as the guideline, the employer submitted that the
grievor’s complaint was that he was not assigned a workload for the Fall 2019 semester.
The grievor had been advised well in advance that there had been changes within the
department that would mean there would be no work available for him. The employer
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argued that, at the latest, on September 4 when the semester started the triggering event
had occurred, and the grievor was aware or ought to have been aware of the facts that
formed the basis for his grievance that he had not been assigned a teaching workload for
the fall 2019 semester as a form of retribution for pursuing a prior grievance.
[6] The employer argued that the union relied on an exchange of emails that occurred
around the time the Fall semester started and continued for a few weeks after. There had
been some discussion of an additional course but that did not materialize. By September
4, the date the Fall 2019 term started, the grievor had had a meeting with the department
Chair that confirmed no work was available for him. The employer argued that the grievor
was aware of the fact he was not being assigned any teaching hours when the Fall 2019
term started and the time limits under the collective agreement would have run at least
from that date, if not earlier.
[7] The employer also addressed the union’s submission that the timeliness argument
had been waived. The employer raised the timeliness objection, as set out in the ASOF
above, on October 16, 2019 in response to the complaint filed by the grievor. Although
the employer also raised an objection to the grievor’s status to file a grievance, it did not
at any point withdraw the timeliness objection. The employer submitted in order for the
union’s objection to succeed, there would have had to have been a statement or action
on the part of the employer that unmistakably indicated an intention to withdraw the
timeliness issue. However, there was no evidence confirming such an intention.
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[8] The employer denied there was any evidence of retribution against the grievor,
and that all decisions with respect to the changes in the department had been taken for
operational reasons.
[9] The employer relied on the following authorities: Sault College (Piotrowski),
[2006] O.L.A.A. No. 568 (Howe); Algonquin College (Release Time), (Unreported, Slotnick,
November 2014); Lafarge Canada (Verberne), [2000] 60 C.L.A.S. 303 (Herman); Ontario
Ministry of Government Services (1991), 21 L.A.C. (4th) 129 (Kaplan).
Union Submissions
[10] The union submitted that although this case did not involve a termination, the
impact of the employer’s decision on the grievor was just as devastating financially and
emotionally. The grievor had filed a grievance in 2016 that was a “high profile” dispute
between the parties. The grievance proceeded to arbitration but was dismissed by
Arbitrator Knopf in July 2018. Soon thereafter, the union asserted, the employer began
to make major changes to the organization of the IMD and the grievor’s classes were
recoded while the number of professors required was reduced. The grievor was initially
given incorrect information about why there had been a change in that he was told he
would not receive any work because he had missed some faculty meetings. The union
attempted to get the President of the College to intervene. The union filed a grievance
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immediately after it became clear that the employer was not prepared to change
direction with respect to staffing the IMD.
[11] The union argued that the exchange of correspondence and discussions between
the parties indicated that the grievor had a reasonable expectation right up until October
9, 2019 that he was going to be assigned a partial load for the term. The union argued
that the purpose of good labour relations was not served by requiring that the union
escalate a dispute while the employer is engaged in a process of pursuing a solution. The
union had written to the President of the College and had received a response from Robyn
Heaton in late July. The response held out the possibility that an additional section might
be opened in the course and that this could create an opportunity for the grievor in the
Fall 2019 session. The union asserted that the grievor was “told nothing” at his meeting
with the Chair of the department on August 19, and that it was reasonable for him to
forbear on pursuing the grievance until he had heard the outcome of the attempts to
open up a new teaching opportunity. The grievor was most concerned about the issue of
reprisal and he had an expectation that the President of the College was attempting to
address the issue. The union argued that so long as there was meaningful communication
between the parties and there is a reasonable chance the employer might change its mind
the dispute had not ‘crystalized.” Moreover, the union asserted, the employer could be
said to have made a decision until discussions have been exhausted. In this respect, a
review of the communication between the parties during the relevant period confirmed
the grievor’s view that some solution was still under consideration as late as October 9.
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[12] In the alternative, the union argued that the employer had waived the right to
pursue the timeliness issue. The union argued that the fact that the employer raised the
time limits at the complaint stage was not sufficient. At the time the issue was raised the
Chair of the department was not fully aware of the details of the complaint or of the
communication that took place between the employer and the union. It was reasonable
for the union to conclude that the employer had failed to consider the matter properly,
and that the timeliness issue could not be taken seriously. The appropriate time to raise
the issue was at the first stage of the grievance procedure. The union relied on the fact
that after the formal grievance was filed, the employer raised the issue of the grievor’s
status to file a grievance (a preliminary objection that was not pursued at arbitration) but
failed to mention time limits. It was not appropriate for the employer to argue that the
union had been put on notice given that time limits were not mentioned during the
grievance step process. The employer’s silence on the issue throughout the formal
grievance procedure must be taken as a decision to abandon any right to raise the
timeliness issue
[13] The union relied on the following authorities: Niagara College (Foster), [2019]
CarswellOnt 18830 (Knopf); Harbour Castle Hotel, [2010] CarswellOnt 17919
(MacDowell); George Brown College (de Simone), (unreported, Burkett, December 2015);
St. Clair College (Cross), [1997] O.L.A.A. 1086 (McLaren).
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Conclusions and Decision
1. Did the Employer waive the timeliness objection?
[14] Dealing first with the issue of waiver, the union asserts that the employer waived
the time limits objection because, having raised it initially at the complaint stage, the
employer failed to raise the objection in subsequent replies to the grievance. In my view,
this approach is not consistent with the doctrine of waiver as applied in labour relations.
[15] First, the union argued, in effect, that the reference to the time limits at the
complaint stage was not to be given as much weight as the employer’s responses at the
later grievance stages. The complaint stage under the collective agreement is an integral
and formal part of the overall grievance/arbitration procedure between the parties. The
complaint stage is set out as the first step under the heading of “grievance procedure”
under Article 32 of the collective agreement. The complaint must be filed, discussed with
employee’s immediate supervisor and responded to within specific time frames. The time
limits referenced in the complaint stage are mandatory, like the other time limits in the
grievance procedure, and the collective agreement stipulates that if a grievor fails to act
within the time limits the grievance will be considered abandoned. The union’s
submission that the employer’s response at the complaint stage is of lessor significance
or can be discounted is not consistent with the structure and meaning of Article 32. There
is nothing in the language of Article 32 that suggests the complaint stage response is to
be given less weight than later responses to the grievance. The complaint stage is as
important as the other stages, in that if the time limits contained therein are not followed,
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the grievance is deemed abandoned and cannot proceed. This is so regardless of whether
one party finds the complaint stage position of the other party unhelpful or illogical.
There is no basis in the collective agreement upon which to conclude that the position
taken by the employer at the complaint stage is of any less import than a position taken
at any other time stage of the grievance procedure.
[16] With respect to the application of the doctrine of waiver, in George Brown College,
Arbitrator Burkett cited with approval the definition of ‘waiver’ from Palmer Collective
Agreement Arbitration in Canada (2d), stating:
“The term waiver will be used to describe situations where failure to make timely
objection to noncompliance with procedural requirement of the grievance procedure
prevents the objection from being raised later.
Conduct which has been held to amount to waiver includes: allowing a grievance to go
through the grievance procedure; failure to object at the first opportunity in the grievance
procedure; not exercising, at the time the grievance is first presented, an employer option
stipulated in the collective agreement to refuse and untimely grievance; a substantial lack
of compliance with the grievance procedure by both sides; and an attempt to settle the
grievance.”
It is noteworthy that the emphasis in this definition of waiver is in the timing of when the
subject of the waiver argument is first raised. The employer in the instant case raised the
time limits issue at the first opportunity, in the response at the complaint stage of the
grievance procedure, and thus avoided the primary flaw that gives rise to the potential
for waiver. Put another way, the employer took the appropriate step to preserve its right
to argue timeliness with respect to the grievance. I agree with Mr. Climie’s submission
that, having put the union on written notice that it intended to rely on the timeliness
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issue, it would require a clear and unequivocal action on the part of the employer to
establish as a fact that the employer abandoned or waived the preliminary objection.
[17] The union relies on the fact that the employer failed to mention the time limits in
the written responses to the subsequent steps in the grievance procedure, although it did
repeat another preliminary objection to the effect that the grievor did not have the status
to file a grievance given that he was a former employee. At most, this establishes that
there may have been some confusion about whether the employer intended to pursue
the timeliness argument.
[18] The union’s submission amounts to the assertion that once the employer raised
the issue of timeliness, it was required to raise it at every other stage in the grievance
procedure, and that the failure to do so amounted to waiver. The jurisprudence about
waiver in labour relations requires only that the party raising the objection is required to
raise it at the earliest opportunity. There is no requirement that the objection be raised
at every subsequent stage or in every discussion about the grievance. In this case, the
employer met the requirement of raising the objection as early as possible. It is fair to
say that the employer’s subsequent silence might have created some ambiguity, but any
ambiguity was insufficient to nullify the clear written notice. In short, the circumstances
did not go so far as to demonstrate that the employer had abandoned the timeliness
objection. Given the nature of the bargaining relationship, once the union had been
notified of the preliminary objection in writing, it had fair opportunity, in the face of any
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subsequent uncertainty, to follow up and find out if the employer intended to maintain
the objection. In this case, the employer’s failure to raise the issue after the written notice
was not sufficient in and of itself to establish that the employer intended to abandon or
waive the timeliness objection.
Was the grievance filed within the time limits?
[19] As already mentioned, the collective agreement requires that grievances must be
raised at the complaint stage within 20 days after, “…the circumstances giving rise to the
complaint have occurred…or ought reasonably to have come to the attention of the
employee.” The circumstance referenced in the grievance is an allegation that the
employer had discriminated against the grievor for filing the Knopf grievance. The
remedy requested included, “…immediate reassignment of my traditional partial-load
courses.” The grievance was filed in relation to the Fall 2019 term, and the fact that the
grievor had not been assigned his usual teaching load. The Fall 2019 term started on
September 4, 2019. The employer is correct in asserting that as of September 4, the
grievor would have been aware that he had not been assigned any teaching hours for the
Fall 2019 term. Thus, unless some other factor intervened, the 20-day time period for
filing the grievance at the complaint stage would have started on September 4, and the
grievance should have been commenced at the latest by October 3. The grievance was
filed at the complaint stage on October 15, 2019, outside of these time limits. In
accordance with Article 32.04A, therefore, the grievance must, prima facie, be deemed
to have been abandoned.
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[20] The union argues, however, that the correspondence between the parties
indicates that there were ongoing discussions with the President of the College about the
grievance, and that those discussions did not conclude until October 9.
[21] There was significant correspondence and discussion between the parties about
the grievor’s concerns regarding the Fall 2019 term. The chronology can be summarized
as follows. The grievor was advised in writing on June 11 by the Chair of his department
that there would be no work available for him in the Fall 2019 term. Grievances did not
need to be filed at that time due to an agreement between the parties to suspend time
limits during the summer break. Nonetheless, the grievor met with his Chair on June 18
to discuss the matter. At the meeting the Chair confirmed that there was no work
available. (I note that the grievor alleges he was told at this meeting that there was no
work available to him because he missed some faculty meetings. This evidence, if proven,
would be relevant if this matter proceeded to a hearing on the merits, but the alleged
statement has no bearing on the timeliness issue.) The union was not happy with the
outcome of the June 18 meeting and wrote to the College President asking for an
explanation. The Dean of the faculty wrote back on behalf of the President on July 25,
advising that there were no hours available for the grievor due to a reorganization of the
program, but held out the possibility that another section might be added to the program
for the Fall term for which the grievor might be considered. On August 12, the grievor
wrote directly to the President of the College saying he had not heard anything from his
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Chair about any work, and asked for the President’s direction on how to proceed. A few
days later, the President wrote back, advising the grievor to speak to the Chair so that she
could relay “any new information” directly to him. This was significant because the
President was making it clear that he was not dealing with the issue, and that the Chair
of the department would have any relevant information. The grievor met with his Chair
a few days later and she advised him there would be no work available to him for the Fall
2019 term. This was the last communication between the parties about the issue that
was of any relevance.
[22] The grievor had received confirmation, before the term started, that he was not
going to be offered any work. Once the term started, there was no question that what
the grievor had been told since June had actually happened. He was aware it had
happened, given that he was not assigned any work for the term. As a result, the time
limit for the initiation of the grievance process must have reasonably started, at the latest,
on September 4, 2019.
[23] The union seeks to rely on subsequent correspondence between the Union
President and the President of the College in late September and early October. The
Union President asked the College President for an update on the grievor and another
partial-load employee. The President of the College responded and confirmed that he
had referred the grievor’s issues back to the Chair, as set out in his direction to the grievor
on August 16.
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[24] The facts lead to the conclusion that the Chair had provided the grievor with the
final word on the subject of the Fall 2019 term on August 19. That was confirmed by the
start of the term on September 4, in that there were no hours available to the grievor,
either with respect to his former courses or with respect to any contemplated additional
sections. In other words, there was nothing left outstanding to discuss or consider after
September 4.
[25] After reviewing the facts, the submissions of the parties, and the authorities, it is
my conclusion that the grievance should have been filed no later than October 3, 2019.
The time limits under this collective agreement are mandatory and the consequences for
failing to meeting the time limits are specific. Given that the complaint stage was not
filed until October 15, the grievance process was not engaged within the 20-day time limit
and the collective agreement deems that the grievance has been abandoned.
________________________
Barry Stephens, Arbitrator
February 26, 2021