HomeMy WebLinkAboutStirling 21-11-151
IN THE MATTER OF AN ARBITRATION
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 560 (the Union)
And
SENECA COLLEGE (the Employer)
Re: Grievance of Alex Stirling (the grievor); 2020-0560-0009
Appearing for the Union: Jean-Michel Corbeil, Goldblatt Partners LLP
Appearing for the Employer: Gregory Power, Hicks Morley LLP
Sole Arbitrator: Norm Jesin
Hearing held: November 9, 2021
Date of Decision: November `15, 2021
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AWARD:
The grievance in this case alleges that the Employer has violated Article 4 of the collective
agreement as well as any other relevant articles, policies, or legislation. The basis for the
allegation is that at a grievance meeting held on March 6, 2020, the Employer, “through its agent,
Ted Bridge, engaged in excessive threatening and bullying vexatious behavior”.
At the outset of the hearing in this matter, counsel for the Employer raised a preliminary
objection that I am without jurisdiction to deal with this matter. Essentially, the Employer argues
that the grievor was not an employee in the bargaining unit covered by the collective agreement
at the time the events of March 6 and was therefore not entitled to the protections afforded
under the collective agreement at that time. This decision deals with that preliminary objection.
The facts giving rise to the objection are set out in a statement of facts agreed to by the
parties which is reproduced as follows:
AGREED STATEMENT OF FACTS FOR PRELIMINARY OBJECTION TO JURISDICTION
1. The Grievor applied as an internal applicant for a position of full-time professor in the
College’s Creative Advertising Department in around November 2018. At the time, the
Grievor was a partial load faculty member at the College and a member of the OPSEU
Academic bargaining unit.
2. The Grievor was invited to interview for the aforementioned position and did so, but was
ultimately not selected for the position.
3. In the months after being advised of the outcome of his application, the Grievor sought
at various times more clarity and more information concerning the reasons for the
College’s decision. The Grievor received feedback concerning the hiring process, his
interview score, and reasons for the hiring committee’s decision. It was the Grievor’s view
that the feedback was incomplete and inadequate.
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4. The College ultimately posted the position externally and sought external candidates.
5. Starting in January 2020, the Grievor was a part-time faculty member at the College.
6. The Grievor filed a grievance on January 27, 2020, alleging, among other things, that the
hiring process was flawed (the “Staffing Grievance”). A copy of this Staffing Grievance is
attached at Tab 1.
7. The parties held a grievance meeting on Friday, March 6, 2020 in the context of the
Staffing Grievance (the “Grievance Meeting”). In attendance at the Grievance Meeting
were the Grievor, Mr. Harvey Kaduri (union representative), Mr. Bridge, Ms. Mary
Vaughan (the Dean of the School of Business), Haseeb Wali (Manager, Human Resources)
and Ms. Anastasiya Sychykava (Manager, Human Resources). The Union Local President,
Mr. Frank Yee, also attended part of the meeting.
8. The Grievance Meeting lasted approximately two hours. During this time, the parties
talked about, among other things, the application process and the Grievor’s concerns with
same, the Grievor’s request for additional information and documentation, and the
Grievor’s concerns with the outcome of the application process. It will be the Grievor’s
evidence that that Mr. Bridge engaged in bullying, threatening and vexatious behaviour
toward the Grievor such that the Grievor was embarrassed and psychologically damaged.
9. On August 16, 2020, the Grievor sent a letter to the President of the College (attached at
Tab 2) ) in which he raised several concerns and stated that “An independent investigation
of the failure to respect and uphold Seneca principles and policies is due”. The letter
alleged, among other things, inappropriate conduct on behalf of Mr. Bridge during the
Grievance Meeting.
10. After receiving the above-mentioned letter, the College appointed Ms. Patricia Guselle,
Investigation and Resolution Officer (the “Investigator”), to investigate the Grievor’s
allegations.
11. On August 28, 2020, the Grievor filed the present Grievance, which is attached at Tab 3,
alleging that Mr. Bridge’s alleged behaviour during the Grievance Meeting was in breach
of Article 4 of the Collective Agreement. Specifically, the Grievor alleged that Mr. Bridge
engaged in “excessive threatening and bullying vexatious behaviour” including yelling
(unsupported and inappropriate accusations), pounding the boardroom table with his fist,
and a threatening posture, which the Grievor found demeaning and adverse to his dignity
and psychological health (the “Grievance”). At the time the Grievor filed the Grievance,
he was a part-time faculty member.
12. On September 23, 2020, the College responded to the Grievance and denied it on the
basis that:
(a) It was untimely;
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(b) The Grievor was not a member of the bargaining unit at the time the Grievance
was filed; and
(c) There was no violation of the collective agreement in any event.
13. On September 15, 2021, a hearing took place before arbitrator Starkman for the Staffing
Grievance. On October 1, 2021, Arbitrator Starkman dismissed the Staffing Grievance as
untimely. A copy of Arbitrator Starkman’s October 1, 2021 decision is attached at Tab 4.
Article 1.01 of the collective agreement governing the parties recognizes the Union as
bargaining agent for academic employees but excludes part-time employees from the bargaining
unit. Part-time employees are defined as employees working up to six hours per week. Employees
designated as partial load are included in the collective agreement and are defined as employees
who teach between 6 and 12 hours per week. Teachers who teach more than 12 hours per week
are designated as full time and are included in the bargaining unit.
When the grievor applied for the full time position described in the agreed facts he was
designated as partial load and was therefore covered by the collective agreement. However, by
the time the grievance meeting was held for his claim to the full time position, he had become
part-time and was therefore excluded from coverage under the collective agreement. The
position of the Employer is straightforward. Since he was not in the bargaining unit on March 6,
2020 and was not entitled to the protection of the collective agreement at that time, he could
not pursue a grievance concerning the conduct of an Employer representative on that date.
Whatever protection he may or may not have had under any legislation, he could n ot file a
grievance under the collective agreement.
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In support of the Employer’s position, counsel relied on four decisions. They are: Seneca
College, unreported, March 22, 2018 (Jesin); Conestoga College, unreported, July 17, 2015
(Starkman); St. Lawrence College, unreported, March 17, 2003 (Starkman, O’Connor, Kelly) and
George Brown College, unreported, December 22, 1994 (P. Picher, Majesky, Metcalfe)
In Seneca College an employee whose status was changed from partial load to part time
was terminated while employed as part time. The grievor had not grieved his change of status
within the time limits provided for in the collective agreement. Because he was not covered by
the collective agreement at the time he was terminated, I ruled that his grievance w as
inarbitrable. Similarly, in Conestoga College, St. Lawrence College, and George Brown College
Boards all ruled that they did not have jurisdiction to consider a grievance filed by a part time
employee.
The Union argues that because the grievor was attending at a grievance meeting held
under the provisions of the collective agreement to pursue a claim arising while he was
designated as partial load, he was entitled to all the protections of the collective agreement
during the grievance meeting, including the right to be free of harassment. Counsel points out
other circumstances in which employees no longer in the bargaining unit. For example,
employees who are terminated from employment may file grievances to reclaim their jobs even
though they are not employed at the time they filed their grievance. Counsel also relies on the
decision of Arbitrator Knopf in Niagara College, unreported, November 12, 2009. That case dealt
with a grievance under Article 26.10 E of the collective agreement. That provision provides that
when the Employer determines the need to hire a partial load employee previously taught by a
registered partial load employee, it must give priority to that employee. Arbitrator Knopf
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determined that that registered employee may enforce that provision by agreement even though
the employee is not employed in the bargaining unit at the time the grievance arises.
In reply counsel for the Employer distinguished the Niagara College decision to the ones
relied on by the Employer. Counsel pointed out that unlike the other decisions, Niagara College
dealt with a right that was explicitly made available to previously registered employees regardless
of whether they are in the bargaining unit at the time the right arose. Arbitrator Knopf simply
determined that the right, which was expressed in the collective agreement had to be
enforceable, even though the grievor may no longer be in the bargaining unit. According to
counsel that is different than the situation in the other cases or in the present case, where the
right is not available because to the grievor who is not employed in the bargaining unit.
I am in agreement with the Employer’s submission that unless a part time employee is
enforcing a right expressly granted to that employee under the collective agreement a part time
employee who is excluded to the bargaining unit is not entitled to enforce rights and protections
under the collective agreement that are available only to bargaining unit employees. The
grievance meeting of March 6 was designed to deal with a claim that arose to the grievor while
he was in the bargaining unit. However the claim arising in the grievance before me is a claim
arising when the grievor was no longer in the bargaining unit. While the grievor may have other
legislative protections, he cannot pursue a claim under the grievance procedure arising when he
was not an employee in the bargaining unit.
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Accordingly, it is my determination that the Employer’s preliminary objection is well-
founded. The grievance is therefore dismissed.
Dated at Toronto, this 15th day of November, 2021.
____________________
Norm Jesin, Sole Arbitrator