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HomeMy WebLinkAboutMcVeety 09-06-11 1 - IN THE MATTER OF AN ARBITRATION RECEIVED JUL 0 3 2009 GRIEVANCE DEPARTMENt Between: CENTRAL WEST SPECIALIZED DEVELOPMENTAL SERVICES (Hereinafter referred to as "the Employer") -And- ONTARIO PUBLIC SERVICE EMPLOYEES Union LOCAL 249 (Hereinafter referred to as "the Union") Hereinafter referred to collectively as "the Parties" And in the Matter of a grievance arising under the provisions of a collective agreement In effect between the institutional parties. Sandra McVeety-"the Grievor". Sole Arbitrator F.M. Reilly LIST OF APPEARANCES For the Employer: Daniel Pugen~ Counsel For the Union: Tim Mulhall-Representative Held: Oakville, Ontario June 11, 2009 2 I am appointed sole arbitrator by the institutional parties under the voluntary arbitration procedures as contained within a collective agreement in effect ; between them. Neither party challenged my jurisdiction to hear and determine thIs matter. Several exhibits were introduced upon consent prior to opening statements being made. The grievor Sandra McVeety was employed as a relief employee in the Employer's facility in Oakville, Ontario. The Employer is engaged in the care of individuals in residency who are suffering from developmental disabilities. The Employer called the grievor at home on November 26, 2008 and informed her that she was being released from employment because of the fact that she was unable to work all of the shifts assigned to her. The Employer followed this up with a letter sent the same day under the signature of her shift manager Chris Higenell, officially informing her of the termination. The letter confirmed that the grievor had been unsuccessful in her probationary period and as such; her employment had been terminated that day. The grievor had commenced employment approximately five weeks before this. There is no dispute that the grievor was at the material time a probationary employee. The grievor supplemented her income by working at this facility as also works full-time for another Employer and part time for a second Employer. Opening statements. The Employer stated that there was more than one reason for ending the employment relationship, although one of which, was the fact that the grievor informed the Employer that she would be unable to work on specific occasion(s) over the upcoming holiday period. The Employer, at the time of the dismissal, had been forced to retain the services of an agency to supplement its workforce, due to the fact that it required assistance over a busy period. As the Employer is engaged in providing care of persons with behavioural problems in an adult housing, the Employer consistently required a minimal amount of staff to ensure the safety and security of those individuals as well as providing the daily care they required. The grievor had achieved eighty-nine hours of service at the time of her release and was deficient by some three hundred and sixty hours to achieve a non- probationary status under the collective agreement. The Employer stated that it needed relief staff to be available to work on a more regular basis and that it would require each employee to work extra hours during 3 the fall and winter period due to staff need. The Employer contends that the grievor refused four shifts during the time in question and had informed the Employer that her availability would improve in the new-year but not until then. The Employer stated that it had justifiable reason therefore for releasing the grievor. Further, the Employer stated that the its Executive Director James Duncan had been informed by an Executive Director from the establishment where the grievor was formerly employed, to "check the grievor's references". Mr. Duncan informed Ms Scott, the employer's Human Resources Manager, about the discussion and she then contacted her counterpart by telephone at the facility where the grievor formerly worked. During that conversation, the counterpart gave a reference that was sufficiently negative in nature to buttress the Employer's decision to terminate the grievor's employment. The Employer reminded me that it is trite law that probationary employees have far less rights than an employee who is post-probationary and that arbitrators are loath to interfere with an Employer's decision to terminate the employment of probationary employees unless exceptional circumstances exist. Therefore, absent arbitrariness, discrimination or bad faith, the Employer is free to test workers and check on their suitability before allowing them to pass through to a more secure status. The Employer further argued that the deferential standard is such that the onus is upon the union to prove that the employer acted illegally and specifically in contravention of these standards. Counsel stated that just cause did not apply in this case and asked that the grievance be dismissed. In the alternative, if I found that there was insufficient reason for ending the employment relationship, I should exercise my prerogative and not reinstate the grievor, as the Employer now believed that the grievor did not posses the educational requirements for the position she held. The Union stated that the grievor did commence working for the Employer on October 20 2008 and was released on November 26, 2008. The Manager called the grievor that day on her cell phone and informed her that she was being released from employment. After receiving the confirmation of the release in writing, the grievor called Ms. Scott the Human Resources Director to find out why she was being released. According to the Union, Ms. Scott stated that she did not know and would get back to her which she did. Ms. Scott informed the grievor that she was being released because of her lack of availability. The Union stated that the grievor had worked for the Employer that Mr. Duncan had spoken to and that she had actually been fired by this employer and had pursued that dismissal to arbitration. The union stated that this dismissal was eventually withdrawn and the parties had entered into minutes of settlement with 4 the assistance of the arbitrator. Mr. Mulhall stated that the terms of this settlement were formally private and confidential and were not to be released to any person. Mr. Mulhall stated that it was unfair for the Employer to be able to act upon illegal information to give credence to a dismissal of the grievor. Mr. Mulhall stated further that he understood Mr. Duncan did not act improperly by listening to the advice of the fOmler Employer. However, the former Employer had agreed not to divulge anything and agreed to characterize her firing as something totally different. Moreover, the grievor now had to suffer the consequences of an improper act of resiling from the original agreement. The Union stated that the true and the only reason why the grievor was released from employment in the instant matter, was the illegal communication and nothing else, as the rest is a "red herring". That Employer had provided a letter of employment, had agreed to abide by the letter of employment, and had not done so. The Union also argued that the collective agreement indicated that an employee working as a relief employee, had to work at least one shift in a six week period failing which, she could be released from employment. The Employer is not unsophisticated and is now relying upon references given after the hiring when it had all the time in the world to check her references before hand. These references were positive albeit from persons other than the Executive Director or Director of Human Resources of the former Employer. REPLY Employer counsel stated that the Union's argument has one flaw and that is the former Employer is not before me. If the grievor relies on another document such as a memorandum of settlement, she will have to produce this memorandum. As far as the reference check, this Employer does not need to act perfectly in this matter and it had the right to check references when it did. The Employer stated that Article 15(d) of the collective agreement referring to minimum shifts is precisely that, a minimum to maintain status. The article does not nullify the requirement to be scheduled and to work. those scheduled hours. The grievor felt that she could absent herself during a crucial period and that is what set this Employer thinking about her suitability. The Employer would introduce evidence to show that the references received after the probationary period began were unacceptable if necessary. I asked the parties if they would engage in mediation at this point and both stated that they would do so. This process was successful and the parties, although quite reluctantly, agreed to my issuing an Award that reflected the terms and conditions necessary to settle the matter. 5 I informed the Union that I had no authority to find that this Employer acted in bad faith by relying upon information it received from another party when this Employer did not know it may have had no right to the information. I .also advised the Union and the grievor that in the event I heard the matter and the Employer entered evidence that showed the grievor to have received a negative reference, I would permit that evidence and give it what weight I deemed it deserved. I re-emphasized that this Employer had not acted in bad faith when being the recipient of negative information and I would reject the Union's argument if made to the contrary. The parties have therefore agreed that I possess the required authority to issue a consent Award reflecting the terms of settlement that I have proposed and the parties have ultimately accepted. Therefore, I hereby find, declare, or otherwise determine that: 1. 1. I hereby find that the employment relationship previously existing between the Grievor and the Employer has been forever severed and her dismissa shall be changed to a permanent layoff. No award is being made to the Grievor for termination or severance payor for pay in lieu of notice as set out in the relevant provisions of the Employment Standards Act (2000) and I so find. Moreover, I decline to award any payment of any claim under that Act. 2. No award is being made for lost wages or benefits as set out in the collective agreement for the period of time that the Grievor was terminated from her employment, further, I decline to award monetary compensation for any present or future loss of wages or benefits. 3. I hereby award the sum of $5,000.00 minus statutory deductions to the grievor for the loss of future employment opportunities and the surrendering of the opportunity to gain seniority in the bargaining unit as a result of her layoff. The grievor accepts the amount of money that is attached to this award, for anything that occurred during the period when the grievor was employed by the Employer. 4. As a condition of this settlement and this consent order, the Grievor shall sign the release as set out at Appendix l'A" attached hereto. Failing which, no money is to be paid to the grievor as hereinbefore described. 5. In return for the release, the Employer shall seal the grievor's work records (save and except for this Award and release) in perpetuity and not divulge their contents to any third party except with the permission of this Arbitrator or when required by statute or for use in any legal proceedings by the parties or the grievor. 6. For purposes of clarity, this Award and release may be used in a legal proceedings involving the parties and or the grievor. However, the $5000.00 has been awarded without prejudice or precedent. Nothing in this Award shall be taken to mean that employees dismissed while on 6 probation (or otherwise) are entitled to any sums of money from Central West. 7. Prior to sealing the workplace records, the Employer shall create a cover document to be attached to the sealed records noting the following: the Grievor's name, position and length of service, her hire date, the fact that she was laid off and the actual date she was laid off from her employment. 8. The Employer shall not divulge any information other than what appears on the cover letter whenever contacted by a third party, who may be seeking information about the Grievor and or her work history. For greater clarity, the Employer may not speak disparagingly against the Grievor at any time in the future. If any third party seeks further information, the Employer shall state that it is in keeping with the Employers privacy policy not to comment any further about this or any other of the Employer's present or former employees. 9. The Grievor shall not speak disparagingly against the Employer at any time in the future. 10. The Arbitrator will remain seized as such to deal with any question arising with respect to this Order, and with any matter giving rise to its interpretation, administration, application and or with any alleged breach of same. In the event any breach of this Order is found to have occurred in the future, the Arbitrator is empowered to make an order relieving against any such breach, in a form he may deem appropriate. In the event Mr. Reilly is unable to perform his duty as assigned, the parties shall attempt to agree to another arbitrator, failing which, the Minister of Labour for the Province of Ontario will be asked to appoint his replacement. I take this opportunity to thank the parties for the patience shown in settling this very difficult matter. Dated at Oakville this 11th Day ~4 F.M. Reilly Mediator/Arbitrator SCHEDULE "A" RELEASE AND INDEMNITY WHEREAS Sandra McVeety received a letter of termination from her employment on November 26, 2008. AND WHEREAS Ms. McVeety filed a Grievance against the employer in relation to the termination of her employment for alleged cause. AND WHEREAS Ms. McVeety has agreed to accept the terms of settlement referred to in the [Consent Award] to which this Release and Indemnity is attached as Schedule uA" in full and final settlement of all matters 7 relating to her employment with central west developmental services or the termination thereof (the "Terms of Settlement"); NOW THEREFORE THIS RELEASE WITNESSES That in consideration of the Terms of Settlement and other good and valuable consideration, Ms. McVeety hereby releases and forever discharges Central West Specialized Developmental Services and all parent, subsidiary I related, associated and affiliated entities and companies and all their officers, directors, employees, shareholders and agents (collectively, "Central West") from any and all actions, causes of actions, claims, complaints and demands whatsoever and, without limiting the generality thereof, all actions, causes of action, claims, complaints and demands arising from her employment with the employer or from the termination thereof and, without limiting the generality of the foregoing, any claims, statutory or othelWise, for pay, salary, bonuses, overtime pay, vacation pay, public holiday pay, reinstatement, notice of termination, termination pay, severance payor compensation in lieu of notice and against the employer or its insurers in respect of any claims for benefits of any kind, including any express or implied right under any contract of employment, the common law, the Employment Standards Act (Ontario), the Human Rights Code (Ontario), the Occupational Health and Safety Act (Ontario), the Labour Relations Act (Ontario) or any other statute or regulation. The grievor agrees that she has discussed or othelWise canvassed any and all human rights complaints, concerns, or issues arising out of or in respect of her employment at Central West and agrees that the Terms of Settlement constitute a full and final settlement of any existing, planned, or possible complaint or complaints against the employer pursuant to the Human Rights Code (Ontario), arising out of or in respect of her employment at Central West or the termination thereof; MOREOVER, THE UNDERSIGNED HEREBY DECLARES that she has been given sufficient time and opportunity to seek independent advice with respect to the Terms of Settlement as well as this Release and she has done so. The undersigned fully understands the Terms of Settlement and hereby voluntarily accepts the Terms of Settlement for the purpose of making full and final compromise, adjustment and settlement of all actions, causes of action. claims, complaints, demands and liability referred to above. AND FOR THE SAID CONSIDERATION, the undersigned agrees to keep the terms of this Release and the Terms of Settlement and the discussions leading up to them completely confidential as is outlined in the Minutes of Settlement except as provided in the Award at Paragraph 6 thereof. AND the undersigned hereby agrees that the payment of the said consideration is made on a without prejudice or precedent basis and shall not be construed as an admission of liability by Central West. 8 AND the undersigned agrees that her signing this Release is not a condition for her to first receive money to which she would otherwise be entitled to by operation of law, such as wages, statutory pay in lieu of notice or statutory severance pay; THIS RELEASE shall be deemed to have been made in and shall be construed in accordance with the laws of the Province of Ontario; THIS RELEASE shall enure to the benefit of and be binding upon the grievor and her respective heirs, executors, administrators, legal, personal or corporate representatives, successors and assigns: The grievor also releases the Union from any claim suit or action now or in the future, and acknowledges, and agrees that the trade Union represented her fairly and in accordance with its duty to do so under section 74 of the Labour Relations Act. The Employer agrees to pay the funds as hereinbefore referred to on or before July 1, 2009. IN WITNESS WHEREOF, I have executed this document at SIGNED in the presence of: WITNESS Sandra McVeety I remain seized F.M. Reilly. Oakville Ontario June 11, 2009. F.M. Reilly