HomeMy WebLinkAboutBravo et al 22-04-26IN THE MATTER OF A GRIEVANCE under the Labour Relations Act, 1995 and
pursuant to a collective agreement
BETWEEN:
SIR SANDFORD FLEMING COLLEGE
OF APPLIED ARTS AND TECHNOLOGY
(the “Employer”)
-AND-
ONTARIO PUBLIC EMPLOYEES’ UNION, LOCAL 351
(the “Union”)
J. Bravo et al Grievances
OPSEU File Nos. 2020-0351-001 to 2020-0351-017
Before: Gail Misra, Arbitrator
Appearing for the Employer:
Catherine Peters, Counsel
Olivia Evans, Student-at-Law
Steven Droz, Interim Director, Labour Relations
Natalie Julian, Labour Relations Specialist
Appearing for the Union:
Laura Johnson, Counsel
Marcia Steeves, OPSEU Local 351 President
Lou-Anne Hanes, OPSEU Local 351 Vice President
Amy D’Silva, OPSEU Local 351 Vice President
Hearing held by videoconference on April 12, 2022
Decision issued: April 26, 2022
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DECISION
I. I have been appointed pursuant to the collective agreement between the parties
to hear 17 individual grievances filed by the Union on behalf of its members, Javier
Bravo, Jenna Conlin, Kevin Cornish, Julie Davis, Paula Ellis, Brittany Freeburn, Paul
Heard, Gary Hoadley, Robin Keating, Holly Meyer, Crystal Mohr, Robert Monico,
Chris Rice, Quincy Schendera, Nemeida Spence, Ciya Thomas, and Kari Walmsley.
2. The grievances are dated between May 29 and July 10, 2020. The claim common
to each grievance is that the Employer (or the “College”) failed to provide the
individual with the required notice of layoff pursuant to Article 18 of the Part-Time
Support Staff Collective Agreement, and failed to advise the person of their rights
under the collective agreement. At this arbitration the Union did not pursue the
issue of failure to advise anyone of their rights under the collective agreement. The
remedies sought include a declaration of breach of the collective agreement and pay
in lieu of notice of layoff.
3. All of the grievors were Regular Part Time (“RPT”) employees at the College,
although some were probationary employees at the time of their layoff.
4. The parties are bound by a first collective agreement with a term of February 21,
2019 to January 31, 2021.
5. In arguing this case the parties relied exclusively on an Agreed Statement of Facts
(“ASF”), with supporting documents, which together comprise all the evidence
before me. The references to “Tab” numbers were in the original, and have been left
in the ASF excerpt. The parties agreed that to the extent that some facts were within
the exclusive knowledge of the College, for the purposes of these grievances, the
Union does not dispute those facts. The facts are as follows:
The Parties
1. Sir Sandford Fleming College of Applied Arts and Technology is a community
college with campuses in Peterborough, Lindsay, Cobourg and Haliburton.
2. The Union is the bargaining agent representing both Full-Time and Part-
Time Support Staff employed by the College, subject to certain specified
exceptions.
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Background to the Temporary Layoffs of Regular Part-Time Employees
(a) Closure of the College’s Campuses and Suspension of On-Campus Operations
3. On January 30, 2020, the World Health Organization (“WHO”) declared
COVID-19 a Public Health Emergency of International Concern.
Subsequently, on March 11, 2020, WHO declared COVID-19 a pandemic.
4. In the days following WHO’s March 11, 2020 declaration, many Ontario post-
secondary institutions began to suspend on-campus activities and close their
campuses in order to prevent the spread of COVID-19.
5. On Sunday, March 15, 2020, the President of the College, Maureen Adamson,
sent an email communication to all staff and students advising them that the
College would be transitioning to on-line and alternate delivery, suspending
its on-campus operations and closing its campuses from March 16 to April 3,
2020 as a result of the COVID-19 pandemic. A copy of President Adamson’s
March 15, 2020 email communication is attached at Tab 1.
6. In her March 15, 2020 email communication, President Adamson advised
employees that, due to the exceptional circumstances, all faculty and staff
(full-time, partial load, part-time and student employees) who would
normally be scheduled to work would receive pay consistent with their
regular schedules during the closure period from March 16 to April 3, 2020,
and that no one would suffer a loss of pay as a result of the restrictions
placed on on-site work during this period.
7. Effective March 16, 2020, the College’s campuses closed, on-site classes and
other activities were suspended, and College employees commenced
working remotely.
8. On March 17, 2020, the Province of Ontario declared a State of Emergency
under s. 7.01(1) of the Emergency Management and Civil Protection Act.
9. On March 17, 2020, following the Province’s Emergency declaration,
President Adamson sent a further email communication to all staff and
students. In this email communication, President Adamson advised that the
College would continue to take proactive measures to protect its community,
adapt teaching and learning to remote or alternative formats, and support
its students and employees. To this end, she advised the community of a
number of additional actions that would be taken, including requiring
students to move out of residence (subject to alternative arrangements for
International students and some other students in exceptional
circumstances) and further restricting access to the College’s campuses. A
copy of President Adamson’s March 17, 2020 email communication is
attached at Tab 2.
10. On March 20, 2020, students moved out of College residences, with the
exception of the few students for whom alternative arrangements had been
put in place allowing them to remain on campus.
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11. On March 24, 2020, the College made the decision to move to fully on-line
academic delivery for the Spring 2020 semester, and to delay the start date
for the semester to May 19, 2020.
(b) Initial Staffing Decisions Arising from the Campus Closures
12. As noted above, in her March 15, 2020 email communication, President
Adamson committed that all faculty and staff (full-time, partial load, part-
time and student employees) who would normally be scheduled to work
would continue to be paid during the period from March 16 to April 3, 2020.
13. Following the closure of the College’s campuses on March 16, 2020, the
College’s Senior Management Team (“SMT”) began meeting to consider and
discuss the financial, academic delivery and staffing implications of the
closures, and to make staffing and pay continuity decisions for the period
following April 3, 2020.
14. At the time these initial discussions were taking place in late March and
early April 2020, there was significant uncertainty about how long the
campus closures would be necessary and/or how significant the operational
impact of the closures would be.
15. On April 1, 2020, President Adamson issued an email communication to all
staff in which she advised staff that SMT was in the process of making
staffing decisions as a result of the deferral of the start date for the Spring
2020 semester and potential ongoing impact of pandemic-related
restrictions on the Fall 2020 semester. In her communication, President
Adamson stated:
Perhaps the most difficult of all decisions, are those that involve our
employees. While we are all employed to serve our students, our
employees are a precious reflection of everything that we do. On
Thursday of this week, SMT will be spending the day assessing all
staffing needs as they relate to programming and services that will
continue. Following this meeting, we will provide you with an
update on our decision making and soon thereafter, individual
decisions.
I continue to commit to support all full-time faculty and staff for as
long as possible. I want to reaffirm that we will also try to support
others, where meaningful work can be assigned, for as long as we are
able to do so.
A copy of President Adamson’s April 1, 2020 email communication is
attached at Tab 3.
16. On April 2 and 3, 2020, SMT met to consider the staffing and pay
implications of the campus closures. By the end of their meetings on April 3,
2020, SMT was still deliberating and had not yet finalized their decision-
making. President Adamson sent a further email communication to all staff
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on April 3, 2020, advising them that SMT had spent the last two days
reviewing various options and was still deliberating, and that staffing
decisions would be announced early the following week. A copy of President
Adamson’s April 3, 2020 communication is attached at Tab 4.
17. In the course of their deliberations, SMT made a number of critical staffing
decisions. This included the decision to place 81 less-than-full-time
employees, including 59 Regular Part-Time (“RPT”) employees, on
temporary layoff (d iscussed further below). The College’s position is that it
decided to place the RPT employees on temporary layoff pursuant to the
Employment Standards Act, 2000 (“ESA”); the Union reserves the right to
dispute the College’s characterization of the legal basis for the temporary
layoffs.
18. On April 9, 2020, President Adamson sent an email communication to all
staff advising them of the staffing decisions that had been made. In this
email communication, President Adamson described the process that had
been followed in making staffing decisions as follows:
As you know, SMT met several times last week to assess our staffing
needs. Several factors were taken into consideration during these
discussions including the uncertainty of how long the college will
remain closed, the ongoing availability of work for employees, and
the current and future financial impacts, which are significant,
resulting from the COVID-19 emergency.
Our commitment has been to find meaningful work for all, for as long
as we can, with the first priority being our full-time employees.
However, the nature of our work has fundamentally changed. Face-
to-face delivery is suspended, the services we offer are significantly
different, and unfortunately we have fewer students enrolled for the
Spring semester and likely for the Fall semester.
19. President Adamson then advised all staff of the following staffing decisions
that had been made:
All full-time permanent employees (Administrators, Support Staff and
Faculty) will remain in their roles; however, where there is a
shortage of work, or where areas may experience a need for
additional support, employees may be assigned other work or be
redeployed to assist in other areas of the College. New work
assignments will fall within the parameters of the type of work that
is appropriate for the employee group (e.g. support staff will not be
assigned academic work).
Full-time support staff who occupy “less-than-12-month” positions will be
scheduled by their manager for their annual unpaid leave periods.
Almost all work that is being performed from home by part-time support
staff will be transitioned to full-time support staff, where capacity
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exists. Regrettably, this means that almost all part-time support staff
who have regularly scheduled hours of work will be temporarily laid
off, effective April 17, 2020. At this time, the duration of the layoff is
unknown – we hope that it will not be long.
Other non-full-time employment contracts and pending offers of
employment were reviewed on a case-by-case basis by SMT and
decisions made accordingly based on operational, financial and
business needs.
20. A copy of President Adamson’s email communication, which was dated April
8, 2020 but sent out on April 9, 2020, is attached at Tab 5.
(c) Temporary Layoffs of RPT Employees
21. As indicated in President Adamson’s April 9, 2020 email communication, as
a result of the staffing decisions made by SMT, almost all of the College’s RPT
employees were placed on temporary layoff.
22. Between April 7 and 9, 2020, the College met with 61 RPT employees who
were affected by the staffing decisions made by SMT. The College originally
identified 62 affected RPT employees, but one RPT employee resigned,
reducing the number of affected RPT employees to 61. Two of the 61
affected RPT employees were not placed on temporary layoff, but rather
their hours were reduced to 50% for a 10 week period. The College met
with these two employees to provide them with verbal notice of the
reduction in their hours. The College met with the remaining 59 RPT
employees to provide them with verbal notice that they were being placed
on temporary layoff.
23. On April 9, 2020, letters were issued to all 59 RPT employees being placed
on temporary layoff. With one exception (discussed below), these letters
provided affected employees with formal written notice that their last day
worked would be April 17, 2020, and they would be placed on temporary
layoff effective April 19, 2020. All of the letters stated that the employee was
being temporarily laid off in accordance with the Employment Standards Act,
2000. Copies of the April 9, 2020 letters providing each of the Grievors with
notice of temporary layoff are attached at Tab 6.
24. The College subsequently retracted the notices of temporary layoff issued to
six RPT employees who worked on a program funded by Immigration,
Refugees and Citizenship Canada (IRCC) known as the LINC program. These
employees had been given notice on April 9, 2020 that they would be placed
on temporary layoff effective April 19, 2020. The notices of temporary layoff
were retracted because IRCC communicated to the College that there were
to be no layoffs of IRCC-funded staff.
25. In addition, the College subsequently retracted the notice of layoff issued to
one RPT employee working in the College’s Finance department as an
Accounts Payable Representative. This employee had been provided with
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notice of temporary layoff on April 9, 2020 but, unlike the other affected RPT
employees, her temporary layoff was not effective until June 7, 2020. On
May 29, 2020, the College retracted the notice of temporary layoff issued to
this employee. This was done because the Finance department determined
that there was sufficient work available to retain the employee.
26. Accordingly, the College ultimately placed 52 RPT employees on temporary
layoff effective April 19, 2020.
(d) Notice to the Union and Discussions between the College and the Union
27. On April 4, 2020, President Adamson, Dr. Tom Phillips (Vice-President,
Academic Experience), Linda Poirier (Dean, School of Health & Wellness and
School of Justice & Community Development), and Shelley Mantik (Director,
HR Client and Union Relations) met with Marcia Steeves (President of the
Support Staff Local Union). During this meeting, President Adamson notified
Ms. Steeves that the College would be placing most of its RPT employees on
temporary layoff and would be reducing the hours of others. President
Adamson also advised Ms. Steeves that other groups of less-than-full-time
employees represented by the Union would be impacted as well.
28. Ms. Mantik and Natalie Julian (Labour Relations Specialist) met with Ms.
Steeves again on April 6 and April 8, 2020 to discuss the temporary layoff of
RPT employees and other less-than-full-time employees represented by the
Union.
29. During the meeting between Ms. Mantik, Ms. Julian and Ms. Steeves on April
6, 2020, Ms. Mantik and Ms. Julian identified and discussed with Ms. Steeves
which RPT employees would be placed on temporary layoff, which RPT
employees would have their hours reduced, and which RPT employees
would not be affected by the College’s staffing decisions.
30. On April 8, 2020, Ms. Steeves sent an email communication to Ms. Mantik,
stating that she had been advised by OPSEU to request written notification
of the temporary layoff of RPT employees. Ms. Steeves also asked (among
other things) for a list of affected employees and to receive copies of the
notices of temporary layoff issued to affected RPT employees. Ms. Mantik
responded on April 10, 2020, providing Ms. Steeves with written notice of
the temporary layoffs and a list of affected employees, and Ms. Steeves
thanked Ms. Mantik for providing this information. Copies of these
communications are attached at Tab 7 , Tab 8 and Tab 9, respectively.
31. On April 9, 2020, Ms. Mantik provided Ms. Steeves with an advance copy of
President Adamson’s April 9, 2020 email communication advising all staff of
the staffing decisions that had been made. Ms. Mantik also provided Ms.
Steeves with copies of the template letters being sent to all affected Support
Staff employees, and made arrangements for Ms. Steeves to receive a copy of
all the letters sent to affected RPT employees on April 9, 2020 notifying
them that they were being placed on temporary layoff. Copies of these
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communications between Ms. Mantik and Ms. Steeves are attached at Tab 10
and Tab 11, respectively.
32. Ms. Mantik and Ms. Julian met again with Ms. Steeves on April 15, 2020 to
discuss the temporary layoffs. On the same date, Ms. Mantik sent an email
communication to Ms. Steeves notifying her that the College would be
retracting the notices of temporary layoff issued to the six LINC employees.
Copies of this email communication and other related email communications
are attached at Tab 12. Ms. Mantik and Ms. Julian met again with Ms. Steeves
on April 16, 2020 to discuss the retraction of the notices of temporary layoff
issued to the LINC employees.
33. A number of other email communications took place between Ms. Mantik
and Ms. Steeves regarding the temporary layoffs of RPT employees between
April 4, 2020 (when Ms. Steeves was provided with verbal notice of the
layoffs) and April 17, 2020 (the last day worked by affected employees).
Copies of these email communications are attached at Tab 13.
34. Copies of documentation related to the May 29, 2020 retraction of the notice
of temporary layoff issued to the RPT employee working as an Accounts
Payable Representative in the Finance department are attached at Tab 14.
(e) The Grievances
35. Between May 29 and July 13, 2020, the Union filed individual grievances on
behalf of 25 RPT employees with respect to their temporary layoffs. Eight
grievances were subsequently withdrawn, and 17 grievances were referred
to arbitration. Copies of these 17 grievances are attached at Tab 15 .
Individual Grievors
(a) Javier Bravo
36. Bravo was originally hired by the College in a Student role on January 19,
2010. His Student role ended in April 2011, and he was subsequently
rehired in February 2015 in a Casual Part-Time Support role. Bravo was
hired into an RPT role in February 2019, and transferred on August 19, 2019
into the RPT position he held at the time of his temporary layoff. He has also
held Contract Faculty roles with the College.
37. Bravo was a post-probationary RPT employee at the time he was placed on
temporary layoff.
38. At the time he was placed on temporary layoff, Bravo held the position of
Student Recruitment Coordinator, Student Recruitment, working 24 hours
per week, 9 months per year. The Position Summary in the Position
Description Form for this position states:
The Student Recruitment Coordinator assists with the efficient and
effective operation of the Student Recruitment office, working
closely with the Manager, Student Recruitment, Return-to-Learn
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Consultant and Student Recruitment Officers. The Student
Recruitment Coordinator plans and executes on-campus events,
assists with the preparation and execution of Student Recruitment
visits to local secondary schools, community agencies and other local
partners, including providing presentations, attending fairs or other
events and providing individualized application support to
prospective students. Provides overall support to the Student
Recruitment team and assists with overall delivery of services in the
Student Recruitment office. The Student Recruitment Coordinator
will support all Student Recruitment team activities both on and off
campus.
39. Bravo was provided with notice of temporary layoff on April 9, 2020, stating
that he was being temporarily laid off from his position in accordance with
the ESA. His last day worked was April 17, 2020 and he was laid off effective
April 19, 2020.
40. Bravo filed a grievance with respect to his temporary layoff which was
received by the College on June 30, 2020 (OPSEU File No. 2020-0351-0001).
41. By letter dated November 13, 2020, the College advised Bravo that it was
unable to recall him to his RPT position as a result of the continuing
pandemic and its impact on College operations. He was advised that he
could elect to remain on the RPT recall list until January 19, 2021 in
accordance with Article 18.6 of the Part-Time Support Staff Collective
Agreement, or to waive his recall rights and sever his employment with the
College.
42. Bravo elected to sever his employment with the College. The College
provided Bravo with termination pay and severance pay.
(b) Jenna Conlin
43. Conlin was originally hired by the College into a Part-Time Support position
on June 15, 2016, and subsequently transferred into a Casual Part-Time
Support role in August 2018. She commenced working in the RPT position
she held at the time of her temporary layoff on January 28, 2020.
44. Conlin was a probationary RPT employee at the time she was placed on
temporary layoff.
45. At the time she was placed on temporary layoff, Conlin held the position of
Immunization Advisor, Student Services, working 24 hours per week, 9
months per year. The Position Summary in the Position Description Form
for this position states:
This position resides within the Sutherland Campus Student Health
Services Department and supports all the students that are in
programs that require immunizations as part of their
academic/placement requirements. The incumbent creates, sends,
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receives, reviews and [counsels] hundreds of students on their
immunization requirements and provides follow up in person or by
phone, email or fax.
46. Conlin was provided with notice of temporary layoff on April 9, 2020, stating
that she was being temporarily laid off from her position in accordance with
the ESA. Her last day worked was April 17, 2020 and she was laid off
effective April 19, 2020.
47. Conlin filed a grievance with respect to her temporary layoff which was
received by the College on May 29, 2020 (OPSEU File No. 2020-0351-0002).
48. Following her layoff, Conlin was employed by the College in a Temporary
Part-Time (“TPT”) position as Immunization Officer, Sutherland Campus,
working up to 14 hours per week. The term of this temporary contract was
from October 1 to November 13, 2020. Conlin was subsequently employed
by the College on a second temporary contract in the same role from
November 18 to December 18, 2020.
49. By letter dated October 30, 2020, the College advised Conlin that it was
unable to recall her to her RPT position as a result of the continuing
pandemic and its impact on College operations. The October 30, 2020 letter
stated that, since her layoff had exceeded the maximum period of temporary
layoff permitted under the ESA, her employment in the position of
Immunization Officer was deemed terminated effective April 19, 2020.
50. The College provided Conlin with termination pay.
(c) Kevin Cornish
51. Cornish was originally hired by the College into a Part-Time Support
position on December 8, 2016, in the same role he held at the time of his
temporary layoff. He became an RPT employee effective February 21, 2019,
when the Part-Time Support Staff Collective Agreement came into effect. He
has also held Contract Faculty roles with the College.
52. Cornish was a post-probationary RPT employee at the time he was placed on
temporary layoff.
53. At the time he was placed on temporary layoff, Cornish held the position of
Heavy Equipment Technician, SENRS, working 24 hours per week. The
Position Summary in the Position Description Form for this position states:
This position supports the Heavy Equipment Programs (Heavy
Equipment Operator, Heavy Equipment Techniques, and Electrical
Power Generation) by planning for and ensuring the on-going
maintenance of the college-owned Heavy Equipment machinery and
equipment fleet. Responsible for researching/tracking/ordering
adequate inventory of supplies and maintaining licenses used in
academic delivery and equipment maintenances. Assists in budget
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preparation and execution by anticipating and tracking expenses
along with capital needs. Prepares and initiates the purchase of
equipment, supplies, and rental and repair requisitions for the Heavy
Equipment programs. Maintains and updates capital equipment
inventory and files of technical and service documentation for all
supplies and equipment.
54. Cornish was provided with notice of temporary layoff on April 9, 2020,
stating that he was being temporarily laid off from his position in
accordance with the ESA. His last day worked was April 17, 2020 and he
was laid off effective April 19, 2020.
55. Cornish filed a grievance with respect to his temporary layoff which was
received by the College on May 29, 2020 (OPSEU File No. 2020-0351-0003).
56. By letter dated November 13, 2020, Cornish was provided with notice of
recall. He was advised that he could elect to be recalled to his pre-layoff
position as Heavy Equipment Technician, SENRS, working 24 hours per
week, or to waive his recall rights and sever his employment with the
College.
57. Cornish elected to be recalled to his pre-layoff position, and was recalled
effective December 7, 2020.
(d) Julie Davis
58. Davis was originally hired by the College into a Part-Time Support position
on January 3, 2011. From 2014 onwards, she was employed on a series of
Part-Time Support contracts in Purchasing, with some breaks in service
between contracts. She commenced working in the position she held at the
time of her temporary layoff on October 5, 2015, and became an RPT
employee effective February 21, 2019 when the Part-Time Support Staff
Collective Agreement came into effect.
59. Davis was a post -probationary RPT employee at the time she was placed on
temporary layoff.
60. At the time she was placed on temporary layoff, Davis held the position of
Purchasing Assistant, Purchasing, working 18 hours per week. The Position
Summary in the Position Description Form for this position states:
This position is responsible for providing the administrative backup
and support for the supply chain departmental functions of the
College under the general direction of the Director, Purchasing.
Acting as a resource for Procurement, Logistics and Retail Contractor
Management, the Purchasing Assistant processes College
Requisitions, releases Purchase Orders, maintains supplier files and
coordinates office services; all in accordance with Policies and
Legislation. The Purchasing Assistant maintains the Contracts
Database content and contract files in order to track and control all
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supply contracts, leases and agreements. The position is normally
the first line of contact for the Purchasing Office and assists with
fielding calls and inquires when required.
61. Davis was provided with notice of temporary layoff on April 9, 2020, stating
that she was being temporarily laid off from her position in accordance with
the ESA. Her last day worked was April 17, 2020 and she was laid off
effective April 19, 2020.
62. Davis filed a grievance with respect to her temporary layoff which was
received by the College on May 29, 2020 (OPSEU File No. 2020-0351-0004).
63. By letter dated November 13, 2020, Davis was provided with notice of recall.
She was advised that she could elect to be recalled to her pre-layoff position
as Purchasing Assistant, working 24 hours per week, or to waive her recall
rights and sever her employment with the College.
64. Davis elected to be recalled to her pre-layoff position, and was recalled
effective November 23, 2020.
(e) Paula Ellis
65. Ellis was originally hired by the College in a Contract Faculty role on
November 8, 1993. From 2013 onward, she held Part-Time Support and
Casual Part Time Support roles with the College. She commenced working
in the Part-Time Support position she held at the time of her temporary
layoff on August 28, 2018, and became an RPT employee effective February
21, 2019 when the Part-Time Support Staff Collective Agreement came into
effect. She has also held additional Contract Faculty roles with the College.
66. Ellis was a post-probationary RPT employee at the time she was placed on
temporary layoff.
67. At the time she was placed on temporary layoff, Ellis held the position of
Campus Nurse, Student Services, working 24 hours per week. The Position
Summary in the Position Description Form for this position states:
The Campus Nurse provides on-campus health care to students in a
walk-in Health Centre setting, in collaboration with the health
services team. The Campus Nurse also provides health education and
promotes healthy lifestyles to students and the entire campus
community.
The incumbent facilitates:
nursing services in cases of non-emergency, episodic illness and
health counselling
support for the physician’s clinics
the maintenance of confidential health records
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the organizational and supply needs of the medical office
The incumbent participates in internal and external committees,
representing health services and/or the college, where appropriate.
68. Ellis was provided with notice of temporary layoff on April 9, 2020, stating
that she was being temporarily laid off from her position in accordance with
the ESA. Her last day worked was April 17, 2020 and she was laid off
effective April 19, 2 020.
69. Ellis filed a grievance with respect to her temporary layoff which was
received by the College on July 13, 2020 (OPSEU File No. 2020-0351-0005).
70. Following her layoff, Ellis was employed by the College in a TPT position as
Campus Nurse, Student Services, working 24 hours per week. The term of
this temporary contract was from July 22 to August 14, 2020. The end date
of the contract was subsequently extended to November 30, 2020.
71. By letter dated November 13, 2020, Ellis was provided with notice of recall.
She was advised that she could elect to be recalled to her pre-layoff position
as Campus Nurse, working 24 hours per week, or to waive her recall rights
and sever her employment with the College.
72. Ellis elected to be recalled to her pre-layoff position, and was recalled
effective December 1, 2020.
(f) Brittany Freeburn
73. Freeburn was originally hired by the College in a Part-Time Support role on
June 12, 2007. This Part-Time Support role was for only four days and
ended in June 2007. She was subsequently employed by the College in
2013-2014 in Student roles, and then re-employed effective May 1, 2017
into the Part-Time Support role she held at the time of her temporary layoff.
She became an RPT employee effective February 21, 2019, when the Part-
Time Support Staff Collective Agreement came into effect.
74. Freeburn was a post-probationary RPT employee at the time she was placed
on temporary layoff.
75. At the time she was placed on temporary layoff, Freeburn held the position
of Clinic/Spa Technologist, Health & Wellness, working 13 hours per week, 8
months per year. The Position Summary in the Position Description Form
for this position states:
The incumbent is the “Face” of the Clinic and Spa at Fleming College
and is essential to the successful, day-to-day operations of the
business of “The Spa and Clinic at Fleming College”. The candidate
applies specialized knowledge of the spa and clinic industry to
ensure that proper operational procedures are followed and
provides/oversees specialized technical and infection control
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policies are carried out to meet
legislative/programs/faculty/student needs.
The incumbent, maintains internal inventory and initiates the
purchasing of supplies and retail products within budget parameters
for use and sale in “The Spa and Clinic at Fleming College”. The
candidate supports the purchase of approved capital equipment for
the programs utilizing “The Spa and Clinic at Fleming College” by
researching equipment and providing advice, and supports the on-
going maintenance of existing equipment by either effecting repair
themselves or arranging for repair services where required.
The incumbent must work closely with faculty, who are designing
and delivering courses, to ensure student learner familiarity with the
curriculum and clinical experiences that complement the programs’
learning outcomes. The incumbent conducts demonstrations in
accordance with curriculum needs and previously taught theory
regarding set-up and dismantling of equipment, required student
and client records, equipment and supplies. The incumbent also
supervises students in The Spa and Clinic and provides guidance and
direction to all clinic student workers.
The candidate enforces all Health and Safety measures and
procedures as approved by the college in the “The Spa and Clinic at
Fleming College” and reports all incidents to the Academic Service
Leader or faculty.
76. Freeburn was provided with notice of temporary layoff on April 9, 2020,
stating that she was being temporarily laid off from her position in
accordance with the ESA. Her last day worked was April 17, 2020 and she
was laid off effective April 19, 2020.
77. Freeburn filed a grievance with respect to her temporary layoff which was
received by the College on July 13, 2020 (OPSEU File No. 2020-0351-0006).
78. By letter dated November 13, 2020, Freeburn was provided with notice of
recall. She was advised that she could elect to be recalled to her pre-layoff
position as Clinic/Spa Technologist, Health & Wellness, working 13 hours
per week, 8 months per year, or to waive her recall rights and sever her
employment with the College.
79. Freeburn elected to be recalled to her pre-layoff position, and was recalled
effective December 7, 2020.
(g) Paul Heard
80. Heard was originally hired by the College on February 22, 1994, in the same
position he held at the time of his temporary layoff. His position was
originally a Part-Time Support role, and he became an RPT employee
15
effective February 21, 2019 when the Part-Time Support Staff Collective
Agreement came into effect.
81. Heard was a post-probationary RPT employee at the time he was placed on
temporary layoff.
82. At the time he was placed on temporary layoff, Heard held the position of
Cleaner, Physical Resources, working 24 hours per week. The Position
Summary in the Position Description Form for this position states:
To provide a safe, clean and secure environment at the Cobourg
campus for all staff, students and the community.
83. Heard was provided with notice of temporary layoff on April 9, 2020, stating
that he was being temporarily laid off from his position in accordance with
the ESA. His last day worked was April 17, 2020 and he was laid off effective
April 19, 2020.
84. Heard filed a grievance with respect to his temporary layoff which was
received by the College on June 30, 2020 (OPSEU File No. 2020-0351-0007).
85. By letter dated November 13, 2020, the College advised Heard that it was
unable to recall him to his RPT position as a result of the continuing
pandemic and its impact on College operations. He was advised that he
could elect to remain on the RPT recall list until January 19, 2021 in
accordance with Article 18.6 of the Part-Time Support Collective Agreement,
or to waive his recall rights and sever his employment with the College.
86. Heard elected to sever his employment with the College. The College
provided Heard with termination pay and severance pay.
(h) Gary Hoadley
87. Hoadley was originally hired by the College in a Contract Faculty role on
December 17, 2013. Commencing on May 5, 2014, he worked in various
Part-Time Support roles similar to the role he held at the time of his
temporary layoff. He became an RPT employee effective February 21, 2019
when the Part-Time Support Staff Collective Agreement came into effect.
Hoadley has also held Contract Faculty roles with the College.
88. Hoadley was a post-probationary RPT employee at the time he was placed
on temporary layoff.
89. At the time of his temporary layoff, Hoadley held the position of Welding
Technologist, Trades & Technology, working 3.5 hours per week, 8 months
per year. A Position Description Form for this role could not be located, but
the role involves supporting students in the Welding lab to ensure they
conduct their labs in a safe manner.
90. Hoadley was provided with notice of temporary layoff on April 9, 2020,
stating that he was being temporarily laid off from his position in
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accordance with the ESA. His last day worked was April 17, 2020 and he
was laid off effective April 19, 2020.
91. Hoadley filed a grievance with respect to his temporary layoff which was
received by the College on June 2, 2020 (OPSEU File No. 2020 -0351-0008).
92. By letter dated November 13, 2020, Hoadley was provided with notice of
recall. He was advised that he could elect to be recalled to his pre-layoff
position as Welding Technologist, working 3.5 hours per week, 8 months per
year, or to waive his recall rights and sever his employment with the College.
93. Hoadley elected to be recalled to his pre-layoff position, and was recalled
effective December 7, 2020.
(i) Robin Keating
94. Keating was originally hired by the College in a Part-Time Support role on
October 25, 2004. Thereafter, she worked in various Part-Time Support
roles and became an RPT employee effective February 21, 2019 when the
Part-Time Support Staff Collective Agreement came into effect. She
commenced working in the position she held at the time of her temporary
layoff on April 6, 2020. She has also held Contract Faculty roles with the
College.
95. Keating was a post-probationary RPT employee at the time she was placed
on temporary layoff.
96. At the time she was placed on temporary layoff, Keating held the position of
Return to Learn Consultant, Student Recruitment, working 24 hours per
week. The Position Summary in the Position Description Form for this
position states:
The Return to Learn Consultant provides enhanced consultation and
support to a particular group of mature prospective students who
require a higher than normal level of support related to the
application process to Fleming. These students typically have been
out of high school for an extended period of time and have little or
no post-secondary experience. These applicants are often uncertain,
uninformed and overwhelmed with program choices and typically
need face-to-face support to help them choose a Fleming program
and complete the college application process at Ontario Colleges.
97. Keating was provided with notice of temporary layoff on April 9, 2020,
stating that she was being temporarily laid off from her position in
accordance with the ESA. Her last day worked was April 17, 2020 and she
was laid off effective April 19, 2020.
98. Keating filed a grievance with respect to her temporary layoff which was
received by the College on July 7, 2020 (OPSEU File No. 2020-0351-0009).
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99. Following her layoff, Keating was employed by the College in a TPT position
as Student Outreach Facilitator, Sutherland Campus, working 24 hours per
week with the possibility of additional hours up to 35 hours per week. This
temporary contract was for the period October 22, 2020 to April 2, 2021.
100. By letter dated November 13, 2020, Keating was provided with notice of
recall. She was advised that she could elect to be recalled to her pre-layoff
position of Return to Learn Consultant, working 24 hours per week, or to
waive her recall rights and sever her employment with the College.
101. Keating elected to be recalled to her pre-layoff position, and was recalled
effective December 7, 2020.
(j) Holly Meyer
102. Meyer was originally hired by the College in a Student position on May 30,
2005, and worked in various Student positions from 2005 to 2011.
Thereafter, she worked in various Part-Time Support roles until 2018. She
commenced working in the RPT position she held at the time of her
temporary layoff on February 10, 2020.
103. Meyer was a probationary RPT employee at the time she was placed on
temporary layoff.
104. At the time she was placed on temporary layoff, Meyer held the position of
Academic Administrative Assistant, Health & Wellness, working 24 hours
per week. The Position Summary in the Position Description Form for this
position states:
Provides organizational administrative support and assistance to the
Chair of the School of Health & Wellness at Brealey Campus.
Provides customer services to faculty and students in the
School/Program as well as external organization. Provides desktop
and system functionality training and coaching for all School faculty.
Plans and coordinates activities related to all Program
Review/Curriculum Renewal meetings, workloading and grid
verification meetings and faculty evaluations. Is also responsible for
ensuring that final submission of marks happens in the required
time line.
Provides D2L support to faculty and coordinators. Acts as liaison
between the Chair and the Registrar’s Office and Academic
Operations Department.
105. Meyer was provided with notice of temporary layoff on April 9, 2020, stating
that she was being temporarily laid off from her position in accordance with
the ESA. Her last day worked was April 17, 2020 and she was laid off
effective April 19, 2020.
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106. Meyer filed a grievance with respect to her temporary layoff which was
received by the College on July 3, 2020 (OPSEU File No. 2020-0351-0010).
107. By letter dated October 30, 2020, the College advised Meyer that it was
unable to recall her to her RPT position as a result of the continuing
pandemic and its impact on College operations. The October 30, 2020 letter
stated that, since her layoff had exceeded the maximum period of temporary
layoff permitted under the ESA, her employment in the position of Academic
Administrative Assistant was deemed terminated effective April 19, 2020.
108. The College provided Meyer with termination pay and severance pay.
(k) Crystal Mohr
109. Mohr was hired by the College on November 11, 2019 in the RPT position
she held at the time of her temporary layoff.
110. Mohr was a probationary RPT employee at the time she was placed on
temporary layoff.
111. At the time she was placed on temporary layoff, Mohr held the position of
Student Rights & Responsibilities Facilitator, working 24 hours per week.
The Position Summary in the Position Description Form for this position
states:
The incumbent will provide support related the development,
coordination and facilitation of campus wide prevention and
education strategies on a variety of topics. Specifically, topics will be
[related] to behaviours outlined in the Student Rights and
Responsibilities (SR&R) Policy and the Sexual Violence Prevention
(SVP) Policy.
Support the work done in the Office of Student Rights and
Responsibilities. This includes supporting daily operational needs
such [as] communicating with students and employees, setting up
appointments, writing letters and reports, and updating online
databases.
Additionally, the incumbent will act as the first point of contact for
disclosures of sexual violence, providing confidential advice, support
and resources to survivors of sexual violence.
112. Mohr was provided with notice of temporary layoff on April 9, 2020, stating
that she was being temporarily laid off from her position in accordance with
the ESA. Her last day worked was April 17, 2020 and she was laid off
effective April 19, 2020.
113. Mohr filed a grievance with respect to her temporary layoff which was
received by the College on June 4, 2020 (OPSEU File No. 2020-0351-0011).
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114. By letter dated October 30, 2020, the College advised Mohr that it was
unable to recall her to her RPT position as a result of the continuing
pandemic and its impact on College operations. The October 30, 2020 letter
stated that, since her layoff had exceeded the maximum period of temporary
layoff permitted under the ESA, her employment in the position of Student
Rights & Responsibilities Facilitator was deemed terminated effective April
19, 2020.
115. The College provided Mohr with termination pay.
(l) Robert Monico
116. Monico was originally hired by the College in a Student role on September
19, 2016. Commencing in 2017, he worked in various Part-Time Support
roles and became an RPT employee effective February 21, 2019 when the
Part-Time Support Staff Collective Agreement came into effect. He
commenced working in the position he held at the time of his temporary
layoff on January 2, 2018.
117. Monico was a post-probationary RPT employee at the time he was placed on
temporary layoff.
118. At the time he was placed on temporary layoff, Monico held the position of
Sustainability Projects Coordinator, Office of Sustainability, working 24
hours per week. The Position Summary in the Position Description Form for
this position states:
As an integral member of the Office of Sustainability (OOS) and the
Frost Sustainable Campus Initiative, the position is responsible for
assisting in the design, development, planning, organization and
maintenance of sustainability projects on campus. This includes
chairing the Frost Sustainable Campus Committee, leading the
committee in developing an action plan for campus sustainability
(aligned with the College Sustainability Plan) and working with the
Director of Sustainability, Frost Principal and OOS team to establish
overall direction regarding annual work planning related to
sustainability projects. Campus Sustainability projects include both
operational and curriculum integration efforts related to areas such
as the Green Roof, the Living Wall, the Arboretum, Butterfly Garden,
the Frost apiary, Community Garden, interior greening, the regional
seed library, food and recycling, transportation and the summer
Nature Camp for children.
The position trains and oversees student workers and co-op
placements. assisting with Frost Sustainability Campus Projects.
The position plays a key role in providing on-going support and
guidance to students involved in the Students for Sustainability
group (SFS) and in particular, to the Student Leader position to assist
them in achieving success. The incumbent is often the first point of
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contact for the SFS student leader in resolving problems or issues on
campus and for project coordination, problem-solving, (e.g. campus
waste stream, food service provision etc.) and issue resolution.
The incumbent provides direction and guidance in implementing
measures recommended by Frost Initiative and STARS reporting,
including facilitating campus stakeholder relationship management.
As a member of the Office of Sustainability, the incumbent supports
the implementation of the corporate sustainability plan and
initiatives. As needed, the incumbent provides support for and
guidance in implementing measures to weave sustainability
throughout the curriculum, including applied projects and research.
119. Monico was provided with notice of temporary layoff on April 9, 2020,
stating that he was being temporarily laid off from his position in
accordance with the ESA. His last day worked was April 17, 2020 and he
was laid off effective April 19, 2020.
120. Monico filed a grievance with respect to his temporary layoff which was
received by the College on July 3, 2020 (OPSEU File No. 2020-0351-0012).
121. By letter dated November 13, 2020, Monico was provided with notice of
recall. He was advised that he could elect to be recalled to his pre-layoff
position of Sustainability Projects Coordinator, 24 hours per week, or to
waive his recall rights and sever his employment with the College.
122. Monico elected to be recalled to his pre-layoff position, and was recalled
effective December 7, 2020.
123. Monico resigned from his employment with the College effective August 20,
2021.
(m) Chris Rice
124. Rice was hired by the College on January 10, 2011 in a Contract Faculty role.
He was re-employed on December 1, 2017 and held temporary and regular
Part-Time Support roles thereafter in the same role he held at the time of his
temporary layoff. He became an RPT employee effective February 21, 2019
when the Part-Time Support Staff Collective Agreement came into effect.
125. Rice was a probationary RPT employee at the time he was placed on
temporary layoff.
126. At the time he was placed on temporary layoff, Rice held the position of
Service Desk Technician, ITS, working 7 hours per week. A Position
Description Form for this role could not be located, but the role involved
providing support to users of the College’s information technology systems.
127. Rice was provided with notice of temporary layoff on April 9, 2020, stating
that he was being temporarily laid off from his position in accordance with
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the ESA. His last day worked was April 17, 2020 and he was laid off effective
April 19, 2020.
128. Rice filed a grievance with respect to his temporary layoff which was
received by the College on May 29, 2020 (OPSEU File No. 2020-0351-0013).
129. By letter dated October 30, 2020, the College advised Rice that it was unable
to recall him to his RPT position as a result of the continuing pandemic and
its impact on College operations. The October 30, 2020 letter stated that,
since his layoff had exceeded the maximum period of temporary layoff
permitted under the ESA, his employment in the role of Service Desk
Technician was deemed terminated effective April 19, 2020.
130. The College provided Rice with termination pay.
(n) Quincy Schendera
131. Schendera was hired by the College on September 3, 2014 in a Part-Time
Support role similar to the position she held at the time of her temporary
layoff. She was employed by the College on several occasions in Part-Time
Support roles involving essentially the same work, with breaks in service
between them. She was hired into the RPT position she held at the time of
her temporary layoff on September 30, 2019.
132. Schendera was a probationary RPT employee at the time she was placed on
temporary layoff.
133. At the time she was placed on temporary layoff, Schendera held the position
of Library Assistant, Student Services, working 17 hours per week, 8 months
per year. The Position Summary in the Position Description Form for this
position states:
The position exists to provide customer service to Fleming College
students, in the form of answering research and reference questions,
as well as fielding service and directional questions. This position
also has responsibility for assisting FT staff with projects in their
areas of responsibility. This [may] include work in the areas of
collections and technical services (cataloguing and processing
material), running reports from the Integrated Library System
(Sirsi), managing the Reserve shelves, and other projects as assigned.
This position is typically responsible for providing core customer
service functions on evenings, weekends, and during our peak
periods during the weekday during the fall and winter semesters.
134. Schendera was provided with notice of temporary layoff on April 9, 2020,
stating that she was being temporarily laid off from her position in
accordance with the ESA. Her last day worked was April 17, 2020 and she
was laid off effective April 19, 2020.
22
135. Schendera filed a grievance with respect to her temporary which was
received by the College on July 13, 2020 (OPSEU File No. 2020-0351-0014).
136. By letter dated October 30, 2020, the College advised Schendera that it was
unable to recall her to her RPT position as a result of the continuing
pandemic and its impact on College operations. The October 30, 2020 letter
stated that, since her layoff had exceeded the maximum period of temporary
layoff permitted under the ESA, her employment in the role of Library
Assistant was deemed terminated effective April 19, 2020.
137. The College provided Schendera with termination pay.
(o) Nemeida Spence
138. Spence was originally hired by the College in a Student role on October 11,
2006. She commenced working in the position she held at the time of her
temporary layoff on September 3, 2008. She became an RPT employee
effective February 21, 2019 when the Part-Time Support Staff Collective
Agreement came into effect.
139. Spence was a post-probationary RPT employee at the time she was placed
on temporary layoff.
140. At the time she was placed on temporary layoff, Spence held the position of
Student Advisor, Academic Upgrading, working 20 hours per week, 10
months per year. There was no Position Description Form for this role at
the time Spence was working in it, but the role involved supporting learners
in the College’s Academic Upgrading program at Haliburton campus.
141. Spence was provided with notice of temporary layoff on April 9, 2020,
stating that she was being temporarily laid off from her position in
accordance with the ESA. Her last day worked was April 17, 2020 and she
was laid off effective April 19, 2020.
142. Spence filed a grievance with respect to her temporary layoff which was
received by the College on May 29, 2020 (OPSEU File No. 2020-0351-0015).
143. By letter dated September 18, 2020, Spence was provided with notice of
recall. She was advised that she could elect to be recalled to her pre-layoff
position of Student Advisor, Academic Upgrading, working 20 hours per
week, 10 months per year, or to waive her recall rights and sever her
employment with the College.
144. Spence elected to be recalled to her pre-layoff position and was recalled
effective September 21, 2020.
145. Spence resigned from her employment with the College effective November
12, 2020.
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(p) Ciya Thomas
146. Thomas was originally hired by the College in a Student role on February 22,
2017. On April 30, 2018, she commenced working in the position she held at
the time of her temporary layoff. The position was originally a Part-Time
Support role but she became an RPT employee effective February 21, 2019
when the Part-Time Support Staff Collective Agreement came into effect.
147. Thomas was a post-probationary RPT employee at the time she was placed
on temporary layoff.
148. At the time she was placed on temporary layoff, Thomas held the position of
International Student Assistant, International Student Services, working 24
hours per week. The Position Summary in the Position Description Form for
this position states:
Reporting to the Manager, International Student Services and
English Programs, this role works with the International Student
Services team, focusing on enhancing the service experience of
international students and ensuring effective supports are in place,
contributing to the retention and success of international students.
The incumbent works with the International Student Services team
to assist with international student orientation, arrival services,
international student receptions and cultural celebrations,
immigration workshops and information sessions, field trips and
other identified programming within International Student Services.
149. Thomas was provided with notice of temporary layoff on April 9, 2020,
stating that she was being temporarily laid off from her position in
accordance with the ESA. Her last day worked was April 17, 2020 and she
was laid off effective April 19, 2020.
150. Thomas filed a grievance with respect to her temporary layoff which was
received by the College on July 8, 2020 (OPSEU File No. 2020-0351-0016).
151. Following her layoff, Thomas was employed by the College in a TPT position
as International Administrative Assistant, working up to 24 hours per week,
for the period September 8 to December 23, 2020.
152. By letter dated November 13, 2020, the College advised Thomas that it was
unable to recall her to her RPT position as a result of the continuing
pandemic and its impact on College operations. She was advised that she
could elect to remain on the RPT recall list until January 19, 2021 in
accordance with Article 18.6 of the Part-Time Support Staff Collective
Agreement, or to waive her recall rights and sever her employment with the
College.
153. Thomas elected to remain on the RPT recall list.
24
154. The end date of Thomas’ TPT position as International Administrative
Assistant was subsequently extended to January 15, 2021.
155. By letter dated January 15, 2021, Thomas was provided with notice of recall.
She was advised that she could elect to be recalled to her pre-layoff position
as International Student Services Assistant, working 24 hours per week, or
to waive her recall rights and sever her employment with the College.
156. Spence elected to be recalled to her pre-layoff position, and was recalled
effective January 18, 2021.
(q) Kari Walmsley
157. Walmsley was originally hired by the College on September 26, 2011 in a
Student role. She worked in various Student roles between 2013 and 2017,
and was hired as a Grad Recruiter in 2015. She commenced working in the
role she held at the time of her temporary layoff on November 25, 2019. She
also held Contract Faculty roles.
158. Walmsley was a probationary RPT employee at the time she was placed on
temporary layoff.
159. At the time she was placed on temporary layoff, Walmsley held the position
of Student Academic Pathways Assistant, Academic Quality, working 24
hours per week. The Position Summary in the Position Description Form for
this position states:
Reporting to the Director, Quality Assurance, Planning and Academic
Operations, this position is responsible for assisting with student
mobility activities and administration at the College. The incumbent
will assist with Open House, Pathways Fairs, partner classroom
visits, Credit Transfer Institutional Grade projects, resource
documentation management as well as other activities that will
promote student mobility within the College community. This role
will liaise with a variety of departments across the College to assist
in the development and implementation of new and existing
education pathways.
160. Walmsley was provided with notice of temporary layoff on April 9, 2020,
stating that she was being temporarily laid off from her position in
accordance with the ESA. Her last day worked was April 17, 2020 and she
was laid off effective April 19, 2020.
161. Walmsley filed a grievance with respect to her temporary layoff which was
received by the College on July 7, 2020 (OPSEU File No. 2020-0351-017).
162. By letter dated October 30, 2020, the College advised Walmsley that it was
unable to recall her to her RPT position as a result of the continuing
pandemic and its impact on College operations. The October 30, 2020 letter
stated that, since her layoff had exceeded the maximum period of temporary
25
layoff permitted under the ESA, her employment in the role of Student
Academic Pathways Assistant was deemed terminated effective April 19,
2020.
163. The College provided Walmsley with termination pay.
COLLECTIVE AGREEMENT
6. The following provisions of the collective agreement are relevant to this
proceeding:
Layoff
18.1 Definition of Layoff
A Regular Part Time employee is considered laid off if: (a) the employee’s regular
part time position is eliminated or; (b) the employee’s regularly scheduled hours of
work are reduced, including a gradual reduction, by more than one-half hour for
more than ten (10) weeks in any calendar year. …
18.3 Notice to Employees
No Regular Part Time Employee shall be laid off without receiving twenty-one (21)
calendar days notice from the College except in circumstances beyond the
reasonable control of the College.
THE UNION POSITION
7. The Union argued that, pursuant to Article 18.3 of the collective agreement the
grievors were entitled to 21 calendar days notice of layoff, or pay in lieu of that
notice period. Since they received less than that amount of notice, the Union asserts
that the seventeen grievors should be compensated for the number of days of notice
that each was short.
8. All the grievors were RPTs at the time that the College decided to lay them off in
April 2020. They received notice of layoff on April 9, 2020, their last day worked
was April 17, 2020, and their layoff was effective April 19, 2020. The Union asserts
that the regular layoff language in the collective agreement applies to these
employees, and that the College cannot rely on the short-term layoff provisions of
the Employment Standards Act, 2000 (“ESA”), as it does not provide a greater right or
benefit than does the collective agreement. As well, the Union argues that the layoff
does not fit within the exception in Art. 18.3, as it was not necessitated by
“circumstances beyond the reasonable control of the College”, so the Employer is
not saved by that provision.
9. According to the Union, the parties are bound by the collective agreement, and
ought to be held to the bargain they negotiated. In this instance, the layoff notice
entitlement was negotiated for the RPT employees, and the College is bound to
provide them with those entitlements.
26
10. The Union argues that the language of Art. 18 is clear and unambiguous: it
defines a layoff in two ways. In this instance, the Union is relying on Art. 18.1(a),
that the RPT positions were eliminated. It is not relying on Art. 18.1(b) regarding a
reduction in regularly scheduled hours.
11. According to the Union, since Art. 18.1 does not refer to any particular amount
of time, the length of the layoff and whether it is of a temporary or permanent
nature, is immaterial. What it asserts is clear is that each of the grievors had their
hours and positions removed by the College in favour of prioritizing work for full
time support employees. The RPTs work was moved from their respective positions
to that of the full time employees, who are in a separate bargaining unit. Thus, the
notice of layoff provision was triggered.
12. The Union relies on the fact that the College engaged Art. 18.6, the Recall
provision, when in later 2020 it determined that it would recall some of its RPT
staff, or provide those not being recalled with their options to remain on the recall
list for nine months, or waive their recall rights and elect to take severance pay
pursuant to the collective agreement or ESA (Art. 18.8).
13. With respect to the ESA as it regards temporary layoff, the Union argues that
legislation provides the base rights for workers in Ontario. Since these grievors
have the benefit of a collective agreement, which provides them with greater rights
and benefits in respect of layoff, pursuant to section 5(2) of the ESA, the collective
agreement supersedes the minimum standard set by the ESA. In deciding this issue,
the Union states that an arbitrator is tasked with comparing the benefits in the
collective agreement to those that directly relate in the ESA. Section 5(2) of the Act
states as follows:
Greater contractual or statutory right
5.(2) If one or more provisions in an employment contract or in another Act that
directly relate to the same subject matter as an employment standard provide a
greater benefit to an employee than the employment standard, the provision or
provisions in the contract or Act apply and the employment standard does not
apply.
14. The Union relies on the test articulated by the arbitrator in the Extendicare
decision, cited below, which envisaged a three-prong approach: First determine
what the relevant employment standard is; then determine which provisions of the
collective agreement directly relate to the same subject matter; and then weigh the
relative benefits of the comparable rights. The arbitrator had relied on the analysis
in St. Marys Cement, cited below.
15. The Union points to Part XV of the ESA, which addresses “Termination and
Severance of Employment”. Section 56 addresses Temporary Layoff and defines it
as a layoff of 13 weeks in any period of 20 consecutive weeks, or if the layoff is less
than 35 weeks in any period of 52 consecutive weeks, and certain other specific
27
conditions are met. Termination is defined in s. 56(1)(c) as occurring where an
employer lays off an employee for a period longer than a temporary layoff.
16. The ESA provides a right for an employee to receive notice of termination under
ss. 54, 57 or 58, of one week per year of service, to a maximum of 8 weeks (s. 57),
and there is the right to receive pay in lieu of notice of termination.
17. As regards severance entitlements, the ESA mandates at s. 63 that severance
occurs when an employer lays off an employee for 35 weeks or more in any period
of 52 consecutive weeks. Section 64 requires an employer to pay severance pay to
an employee who was employed for five years or more under certain conditions
including: that the employer is severing 50 or more employees within a six month
period; or, has a payroll of $2.5 million or more. For those employed for five or
more years, severance pay entitlement is to one week per year of service to a
maximum of 26 weeks (s. 65).
18. The Union argues that the collective agreement provides protection against
termination without just cause; seniority; bumping rights; and recall rights, at
Articles 17 and 18.
19. Article 17 addresses seniority, how it is accrued, and how it may be lost (if
discharged for just cause, lay off for more than 9 months, an employee elects to
waive all rights of recall, etc.).
20. Article 18.5 outlines the steps the Employer may take to minimize the number
of required layoffs; and, the rights afforded to a person who may be laid off to fill a
vacant position, replace a probationary employee, or replace the most junior RPT in
their department, all if the person can satisfactorily perform the core duties and
responsibilities of that job. Article 18.6 outlines an employee’s recall rights for a
nine month period following layoff to include that they must be hired back in order
of seniority; and, the right to refuse recall to a job that is more than 40 km away
from their original work location without losing their continuing right to be recalled
within the 9 month period. Article 18.7 provides for notice to the union before the
College can contract out work performed by RPTs, if that contracting out would
result in a layoff or involuntary displacement of an RPT.
21. Furthermore, the Union relies on Art. 18.8, which requires the College to pay
one week of severance pay per year to those employees with less than 5 years of
service, as well as to those with over five years of service (who receive severance
pay in accordance with the ESA provision), as another example of a greater right or
benefit than what the ESA provides. Under the ESA, employees with less than five
years of service have no entitlement to severance pay.
22. Based on the differences between the ESA provisions and the collective
agreement rights, the Union argues that the RPTs have substantial and significant
28
rights in the latter when weighed against those they would have on layoff under the
ESA provisions.
23. Finally, the Union argues that the College cannot rely on the exception in Art.
18.3 that circumstances beyond its reasonable control resulted in the need to layoff
the RPTs as there is insufficient evidence before me to establish that it is entitled to
relief pursuant to this exception. Since the Employer has the onus in this regard, the
Union argues that it has not met that onus.
24. The Union does not deny that in mid-March 2020 there was an emergent
situation in Ontario as there was a COVID-19 pandemic declared. It accepts that this
was beyond the reasonable control of the College. However, the Union maintains
that a public health emergency is not evidence of impact on the College or its
financial situation, as that would be the only impact which could relieve the
Employer of its obligation to give the RPTs in question 21 days paid notice of layoff.
According to the Union, since it did provide some paid notice, but fell short by
approximately twelve days of paid notice to the grievors, the Employer would have
to have tendered evidence of decreases in fee revenue, or that it could not have
drawn on reserve funds,
25. As such, the Union seeks to have the grievances upheld; the grievors fully
compensated for their losses, and ask that I remain seized to address any issue that
may arise from a ruling in the Union’s favour.
26. The Union relies on the following jurisprudence in support of its arguments:
SEIU, Local 1 and Extendicare (Canada) Inc. (100-230-482), Re, 2018 CarswellOnt
17870 (Gedalof); USW, Local 9235 and St. Marys Cement (Personal
Emergency Leave Days), 296 L.A.C. (4th) 99 (Nyman); Gentek Building Products
Limited Partnership and Unifor, Local 27 (Reporting Pay), 249 L.A.C. (4th) 321
(Goodfellow); and, SRI Homes and USW, Local 1-207 (Improper Layoff), Re,
259 L.A.C. (4th) 97 (Joliffe).
THE EMPLOYER POSITION
27. The College notes at the outset that the situation giving rise to these grievances
arose in the context of exceptional and uncertain circumstances at the onset of the
COVID-19 pandemic in March 2020. That situation necessitated the College shutting
down all of its campuses, with the resulting lack of work for many of its employees.
In those circumstances, the Employer determined that it had to lay off the majority
of its less-than-full time employees in many categories in order to try to ensure that
there was work for its full time staff for as long as possible.
28. According to the Employer, of the 17 grievors, six were probationary RPTs at
the time of the layoff, and the remaining 11 were non-probationary employees.
Both the Union and all the grievors were told what the College was doing, and that
the RPTs were being put on temporary layoff pursuant to the ESA.
29
29. The issues, according to the Employer, are the following:
- Was the College entitled to lay the grievors off in accordance with the ESA,
instead of pursuant to Art. 18?
- If the College was not entitled to lay these RPT grievors off without complying
with Art. 18, then the Employer argues that this was not a layoff as defined in Art.
18, so it did not have to give Art. 18 notice and no compensation is due to the
grievors.
- If it is found that this was a layoff as defined by Art. 18, then the College position
is that it relies on the exception, that the circumstances were beyond the
reasonable control of the Employer, and that the evidence in this case establishes
that.
30. The Employer relies on the facts as outlined in the ASF regarding the sequence
of events following March 11, 2020 when the pandemic was declared; the College
soon after suspended on-campus operations and closed them completely effective
March 16, 2020; and it later restricted access to the campus after the Province
declared an emergency. It is not necessary to outline in detail the College’s
recitation of the facts based on the ASF, as the complete ASF has been included in
this decision. Suffice it to say that the college buildings and campuses were closed;
few if any students and staff were still on campus; and many support staff had little
or no work to do as their work involved dealing with students or work performed
on campus.
31. According to the Employer, OPSEU represents both the full time support staff
and part time support staff at the College, but they are covered by separate
collective agreements. The College had determined early on in the emergency that it
would try to ensure that all of its full time faculty, administrative and support staff
employment would be preserved as much as possible, and the College President,
Maureen Adamson, so advised all staff of this as early as April 1, 2020.
32. By April 8, 2020 President Adamson advised all staff, among other things, that
all permanent full time employees (Administrators, Support Staff and Faculty)
would remain in their positions, or if there was a shortage of work in their area, may
be redeployed to other work; almost all work that was being performed by part time
support staff would be transitioned to full time support staff; and, almost all part
time support RPTs would be temporarily laid off for a period of unknown duration.
33. The Employer noted that it was appropriate to prioritize full time staff
employment as Article 15 of the full time support staff collective agreement requires
that full time staff be considered first when anticipating a layoff.
34. It notes that the RPT grievors were all given 10 days’ notice of layoff as they
were advised of the layoff on April 9, and the effective date of their layoff was April
30
19, 2020, so it disagrees with the Union that the grievors only received nine days of
layoff notice.
35. The College notes that probationary employees were ultimately treated
differently than were non-probationary employees but that was only later on when
their respective temporary layoff periods ended. For the purposes of the notice of
layoff issue, all the RPT grievors were treated in the same manner and received the
same amount of paid notice.
36. The layoff letters to the grievors advised them that they were being temporarily
laid off due to the impact of the COVID-19 pandemic on the College operations; that
it was an extraordinary situation that could not have been foreseen; and, that the
College hoped to be able to recall the employee to work as soon as possible.
37. Addressing the question of whether the College was entitled to place the
grievors on a temporary layoff pursuant to the ESA instead of under Art. 18, the
Employer argues that it was. It notes that pursuant to s. 5(1) of the Act the parties
cannot contract out of an employment standard. That section states:
5. (1) Subject to subsection (2), no employer or agent of an employer and no
employee or agent of an employee shall contract out of or waive an employment
standard and any such contracting out or waiver is void.
38. It points out that s. 56(2) of the ESA permits temporary layoff of employees, and
outlines the maximum period that may be characterized as “temporary”. In s. 56
(1)(c) the Act provides that a termination of employment occurs if the period of
temporary layoff is exceeded. The College notes that in s. 56(2)(c) the Act addresses
what should occur if a collective agreement sets out a longer time frame for recall
regarding a temporary layoff as follows:
56. (2). For the purpose of clause. (1)(c), a temporary layoff is:
…
(c). in the case of an employee represented by a trade union, a lay-off longer
than a lay-off described in clause (b) where the employer recalls the
employee within the time set out in an agreement between the employer
and the trade union.
39. The Employer noted that as a result of the Ontario Court of Appeal decision in
London Machinery, cited below, in no circumstances can a temporary layoff exceed
35 consecutive weeks in any 52 week period. At that juncture, pursuant to s. 67, an
employee may elect to retain their recall rights, or to be paid termination pay under
s. 61, and/or severance pay if they are entitled to it.
40. According to the College, in this instance since the grievors were represented by
a union, and may have had recall rights pursuant to the collective agreement, even if
the Act may have deemed them terminated at the end of the temporary layoff period
31
of 13 or 35 weeks, those entitled to the total of nine months of recall rights had to be
given the right to elect to retain their recall rights, or they could take any
termination and severance pay due to them and sever their employment after 35
weeks.
41. Since the College treated probationary employees as not having any recall
rights, for them the short-term layoff under the ESA was 13 weeks in a 20
consecutive week period. As such, albeit beyond the 20 week period, on October 30,
2020 probationary employees who could not be recalled to their respective
positions by that time were advised that they had been deemed terminated, and
were paid termination and/or severance pay. For the non-probationary RPTs with
recall rights, the College treated them as being on temporary layoff for 35 weeks in a
52 continuous week period. Those individuals were advised on November 13, 2020
whether they were being recalled to their pre-layoff position, or were advised that
they could elect to remain on the recall list until January 19, 2021, or could sever
their employment and be paid termination and severance pay.
42. Contrary to the Union’s argument that the College application of Art. 18, as
regards recall rights, was inconsistent with the Employer’s failure to apply Art. 18
when it first temporarily laid off the grievors, the College argued that it was acting in
accordance with the ESA, which expressly contemplates integration between the Act
and the collective agreement regimes in such provisions as s. 56(2)(c), which
incorporates that employees governed by a collective agreement may have recall
rights. Hence, the Employer argues it was entitled to temporarily layoff the RPTs
under the ESA, and follow the recall provisions of the collective agreement when
addressing the need to recall employees or address their election rights.
43. Since the ESA does not require an employer to give notice of a temporary layoff,
the College maintains it was not required to give any. Furthermore, since the
collective agreement did not address temporary layoff at all, the College was entitled
to apply the ESA instead as it sets the minimum standards where there is an absence
of collective agreement language addressing a particular matter.
44. Relying on the jurisprudence, the College maintains that since it had not wanted
to end the employment relationship with these RPT employees, and believing that
the situation was going to be short-lived so that it could return them to work soon, it
utilized the temporary layoff provisions of the ESA as the collective agreement had
no provision for a temporary layoff and only addressed the elimination of jobs (or
reduction in scheduled hours of work). Essentially, the ESA filled a gap in the
collective agreement and allowed the Employer to engage in a temporary layoff
under the minimum standards legislation.
45. In response to the Union’s argument regarding the collective agreement
providing a greater right or benefit as regards the temporary layoff, the Employer
maintains that analysis is not applicable in this case. The College noted that counsel
for the Union had included together the severance and termination provisions in her
32
comparison to the terms of the collective agreement, whereas an analysis of greater
rights or benefits requires that each aspect be looked at individually against the
comparable aspect of a collective agreement. Thus, to the extent that the issue here
is regarding layoff, the College argues that the analysis must entail a comparison of
the layoff provisions of the collective agreement against those in the ESA.
46. In the event that the arbitrator finds that Art. 18 was applicable to the
circumstances in these grievances, then the Employer agrees that the collective
agreement provides a greater benefit to the extent that it includes notice of layoff.
However, the College maintains that Art. 18 is simply not applicable as the
temporary layoff provisions in the ESA address a different situation than what the
parties have bargained in the Art. 18 layoff language, so the Employer was not
bound to follow the Art. 18 process in the circumstances here. According to the
Employer one could say that the ESA entitlements and the collective agreement
entitlements sit side by side in this instance.
47. Analyzing Art. 18.1, the Employer relies on the many communications from
President Adamson for the proposition that at no point prior to the layoffs had the
College indicated any RPT’s position was eliminated: Rather, all references were to
the temporary layoff of part time staff due to the uncertain situation and since the
campuses were closed. According to the College, based on the evidence it is crystal
clear that the grievors’ positions were not being eliminated. All the grievors were
told that the layoffs were temporary, and that the hope was that they would be
recalled soon.
48. Looking also at the recall letters sent to the non-probationary employees, the
Employer noted that if a person could not be recalled to their RPT position as of
November 13, 2020 (as for example was Javier Bravo), that is what the letter stated.
This indicated that the positions remained available, although it was still not
possible to return the person to that position at that juncture.
49. Where someone was being recalled to work, they would have been recalled to a
vacant position in their original job. The Employer noted that within each
classification in the bargaining unit there may be numerous positions. As an
example, it noted that Kevin Cornish had been an RPT in a Heavy Equipment
Technician job before the temporary layoff; and he was recalled in November 2020
to a vacant Heavy Equipment Technician job. According to the Employer each
grievor who was recalled, was recalled to the same position they had had before the
layoff, which proves that their position had not been eliminated.
50. The third group of people, who were not recalled to their original positions,
were those who had still been probationary employees at the time the temporary
layoff began. The Employer maintains that they too were told that they could not be
recalled to their respective RPT positions at the time, but that since they had
exceeded the maximum time for a temporary layoff (13 weeks in 20 consecutive
weeks), so their employment had to be considered as terminated effective the day of
33
layoff, April 19, 2020. These individuals were not terminated because their
positions were eliminated, but rather because reading the ESA and the collective
agreement, they did not have seniority that entitled them to nine months of recall
rights.
51. For these reasons the College maintains that there was no layoff as defined by
Art. 18.1(a) of the collective agreement.
52. As well, the College notes that the situation did not fit into the Art. 18.1(b)
definition of layoff regarding the reduction of scheduled hours, because the
Employer did not reduce anyone’s hours by any percentage as there was simply no
work to be done by the RPTs, which is what led to the temporary layoff.
53. The Employer pointed out that other provisions in Art. 18 show that the parties
were only thinking of layoffs as applying to the permanent elimination of a position.
It points to Arts. 18.4 and 18.5, which envisaged the College permanently
transferring a laid off employee to an area of need; or the employee could engage in
the bumping process. In either case, there was no provision for return to the
original position at some later point. Similarly, Art. 18.6 addressed a permanent
situation in that the parties had agreed that if a laid off employee chose to go on the
recall list, “the College will rehire persons from the recall list in order of seniority,
providing they can satisfactorily perform the core duties and responsibilities of
available regular part-time positions, before hiring from the open market”.
54. According to the Employer, all of the non-probationary RPTs who were initially
laid off, and either recalled in November 2020 or chose to remain on the recall list,
were ultimately recalled to their positions, so that the College’s utilization of the ESA
temporary layoff worked, where there was no such language in the collective
agreement. The College asserts it was entitled to proceed as it did in April 2020 to
temporarily layoff the grievors.
55. In the alternative, and should the arbitrator be of the view that the College
breached Art. 18 because it did apply, the Employer relies on the Art. 18.3 exception
that these were “circumstances beyond the reasonable control of the College”.
56. The College argues that if ever there were circumstances beyond the reasonable
control of the Employer, the COVID-19 pandemic was it. It required the College to
close all its campuses on short notice, required students to leave the campus and
housing, and required a quick transition to remote learning. These changes caused
the loss of work for most support staff as they were all engaged in servicing on-
campus activities in some way. When the campuses closed, there were no on-site
activities, and while many RPTs supported services for students, there were no
students on campus.
57. While the College paid all its employees for the first two weeks of the shut-
down, it had to make staffing decisions for beyond that point as it could not continue
34
to pay employees in light of the lack of work. Since the College had prioritized
maintaining its full time staff, the Employer maintains it had to lay off all RPTs to
ensure there was enough work for the full time support staff.
58. The Employer argues that the layoff was an immediate response to the lack of
work, and that its ability to pay is not a consideration in the collective agreement.
Therefore, the College had no obligation in this proceeding to open its books to
show an inability to pay before it could rely on the “circumstances beyond the
reasonable control of the College” exception, even if that is applicable in this
instance. In this case, due to the pandemic circumstances, and since it was very
early days of the health emergency situation, the College argues that these were
circumstances that fit into the exception in Art. 18.3.
59. Based on the jurisprudence, the College argued that there is no requirement for
an employer to prove an inability to pay where the question is whether a layoff was
as a result of circumstances beyond the control of an employer. In the final analysis,
the College argues that the grievors were not entitled to notice of layoff under Art.
18.3 or otherwise, and the grievances should therefore be dismissed.
60. The College relied on the following jurisprudence in making its arguments: Re
Brunner Manufacturing & Sales Inc. and UFCW, Local 617P, 1990 CarswellOnt 4616
(Whitehead) 96; Re Chartwell Housing Reit and Healthcare, Office and Professional
Employees Union, Local 2220, 2022 CarswellOnt 1366 (Misra) 100; Re Dr. Oetker
Canada Ltd. and UFCW, Local 175, 2021 CanLII 145660 (ON LA) (White) 152;
London Machinery v. CAW-Canada, Local 27, 2006 CarswellOnt 1693, 79 O.R.(3d)
444 (Ont. C.A.) 162; Re Robert Shaw Controls Canada Inc. and UE, Local 512, 1989
CarswellOnt 3837, 5 L.A.C.(4th) 124 (Saltman) 184; Re Salade Etcetera! Inc. and
UFCW, Local 1518, 2021 CarswellBC 2347 (Saunders) 219; Re T.A.G. Apparel Group
Inc. (Harvey Woods Div.) and ACTWU, Local 1300, 1990 CarswellOnt 4448
(Betcherman) 187; Re TI Automotive Canada Inc. and CAW-Canada, Local 1285, 2009
CarswellOnt 10355 (Surdykowski) 192; Re Victorian Order of Nurses, Durham
Branch and ONA, 2004 CarswellOnt 6203, 134 L.A.C.(4th) 199 (Herlich) 229; and, Re
Woodbridge Foam Corp and CAW, Local 112, 2004 CarswellOnt 10734 (Rayner).
THE UNION’S REPLY SUBMISSION
61. In its reply submissions, the Union clarified some housekeeping matters, which
are not material and do not need to be reiterated here. The Union noted that it was
making no comment on the fact that the Employer indicated it had been protecting
work for the full time support staff.
62. With respect to the College’s argument that Art. 18.1(a) refers to the elimination
of positions as one of the definitions of layoff, the Union asserts that there is a
temporal requirement associated with the elimination of positions. As such, they
can be eliminated and then recreated. In this instance, the Union maintains that
there was no work because the positions were eliminated and the work was moved
35
to the full time positions, at least temporarily. According to the Union, the collective
agreement language does not say that elimination means for all time. That, the
Union posits, would be a significant restriction on the layoff language, as it would
deprive the RPTs of the right to notice, bumping and recall, and it would take the
clearest of language to find that was what it meant.
63. The Union asserts that could lead to mischief as the College could avoid its
obligations under Art. 18.1(a) by simply laying off an RPT saying there was no work
for the person; they could later terminate the person’s employment when their
recall rights ran out; and could then eliminate the position without paying the 21
calendar days notice of layoff.
64. With respect to the Employer contention that people were recalled to their
positions, the Union asserts that is not so. Using Julie Davis as an example, the
Union states that her recall letter indicated she was being recalled to a vacant
support staff position and not her own original position.
65. The Union argues that since there was no specific recall date in the original
layoff letters, they were more in the nature of an indefinite layoff, so employees
should have received paid notice in accordance with Art. 18.3.
66. The Union does not contest that in March and April 2020 there was an urgent
situation for the College, nor does it dispute the fact of the layoff and the reasons for
that layoff. However, it does contend that was not a reason for the College not to
provide the grievors with the full 21 day notice period, and let them continue to
work from home till the end of the full notice period, which it asserts would have
occurred on April 27, 2020.
67. According to the Union, the College’s case law is distinguishable on the facts of
the cases. It argues that the Art. 18.3 exception would be applicable had there been
a COVID outbreak in the cafeteria requiring its shut down for deep cleaning or for
staff to isolate. In such circumstances it could be deemed an emergency and the
College could not be held to the 21 day notice period for layoff. However, in this
instance the Union asserts that it was not clear that there was no work for the RPTs
to do, and there is no evidence regarding why the College could not have paid them
for the full period of notice of layoff as required by the terms of the collective
agreement.
ANALYSIS AND DECISION
68. The crux of the issue raised by the seventeen grievances before me is whether
what occurred on April 9, 2020 was a layoff as defined by Art. 18.1 of the parties’
collective agreement. If it was, then pursuant to Art. 18.3, should the grievors have
been entitled to receive 21 calendar days’ notice, or can the College rely on the
exception in that provision because there were circumstances beyond its reasonable
control.
36
69. The starting point is the language of the collective agreement itself. For ease of
reference, both Art. 18.1 and Art. 18.3 are reproduced again:
18.1 Definition of Layoff
A Regular Part Time employee is considered laid off if: (a) the employee’s regular
part time position is eliminated or; (b) the employee’s regularly scheduled hours of
work are reduced, including a gradual reduction, by more than one-half hour for
more than ten (10) weeks in any calendar year. …
18.3 Notice to Employees
No Regular Part Time Employee shall be laid off without receiving twenty-one (21)
calendar days notice from the College except in circumstances beyond the
reasonable control of the College.
70. The Union agrees that the only question before me is whether the grievors can
be considered to have been laid off pursuant to Art. 18.1(a), which defines layoff as
the elimination of the RPT grievors’ regular part time positions. For the reasons that
follow, I find that their positions were not eliminated. As such, I find that Arts. 18.1
and 18.3 have no application to the situation that occurred in April 2020 as regards
the seventeen grievors.
***
71. As was noted earlier, and was referred to in the ASF, this is the first collective
agreement between these parties. They bargained this collective agreement with an
effective date commencing in February 2019. Article 18 is what they agreed to for
their layoff and recall language.
72. OPSEU also represents the full time support staff at the College, and while it is
not clear when that bargaining unit was certified and got its first collective
agreement, it is clear that its current collective agreement has a term of September
1, 2018 to August 31, 2022. As such, it had been negotiated before the RPT
collective agreement.
73. The full time support staff agreement contains sophisticated and intricate
“Layoff/Recall Process” language at Art. 15. To the extent that there is any reference
to what a layoff may be, it is mentioned in Art. 15.4 as “a reduction in personnel in
any position”. It does not make any reference to the types of definitions of layoff
found in Art. 18.1 of the RPT collective agreement before me.
74. Article 15.1 of the full time collective agreement states that anyone who has
passed the probationary period “shall not be laid off or subject to the layoff process
for any reason, unless and until the procedures in Article 15 have been applied in
sequence”. Pursuant to Art. 15.3, notice must be given by the College to the Union
that it is contemplating some action that may lead to the layoff of a post-
37
probationary employee; the College must provide the Union with the data it has
used; the parties must then engage, through their joint Employment Stability
Committee (“ESC”) in an elaborate consultative process in which various options
must be considered; the ESC must either make a joint recommendation to the
President of the College, or each side makes its recommendations to the President
within 14 days of notice having been given to the Union; and then the President
decides whether layoffs are still necessary. That starts the next process of provision
of written notice of layoff to affected employees.
75. I have laid out the above process as it makes clear to me that these parties know
what a layoff provision may look like, and in the context of a part time bargaining
unit, they did not bargain such elaborate language into their collective agreement.
This is simply an observation, and is in no way meant to cast aspersions on the
language of the latter agreement: Rather, the fact that an agreement covering part
time employees has fewer protections against layoff is not surprising as a part time
workforce is generally one that may be more contingent than is the employment of
those working in a full time capacity.
76. Since an arbitrator’s jurisdiction flows from the collective agreement, the
starting point for the arbitrator is a review of the relevant collective agreement
terms as they relate to the specific facts of the case before them. As such, I must
confine myself to what has actually been negotiated at Art. 18. As with any contract
interpretation exercise, an arbitrator must give the words the parties have
negotiated their plain and ordinary meaning, having regard to how the purpose of
the particular article operates within the scheme of the collective agreement as a
whole, and considering relevant jurisprudence.
77. Thus, the word “eliminated” in Art. 18.1(a) must be given its plain and ordinary
meaning. The Merriam-Webster Dictionary defines “eliminate” as “to put an end to
or get rid of” or to “remove from consideration”. The Cambridge Dictionary defines
it as “to remove or take away someone or something”. Thus, for the circumstances
that occurred in these grievances in April 2020 to amount to a layoff, with its
attendant employer obligations, the Union must prove on the balance of
probabilities that the College put an end to, or got rid of, or removed the grievors’
regular part time positions.
78. The Union asserted that the word “eliminated” in Art. 18.1(a) does not mean
that the positions must be eliminated permanently, but even if it did, the positions
could be eliminated and then recreated, which is what the Union claims occurred in
this instance. According to the Union, the positions were eliminated when the
College moved the work temporarily to the full time staff, and were then recreated
when the College wanted to move work back to RPTs. I cannot accept this
argument, as it would take the clearest of language to adopt such a tortured reading
of the word “eliminated”. It is simply not the plain and ordinary meaning of the
word, and without more in the collective agreement language to suggest that is what
38
the parties meant, I must assume that the word should be given its ordinarily
accepted meaning.
79. Furthermore, on the evidence before me it is clear that the Employer did not
intend to “eliminate” the RPT positions: it only wanted to temporarily layoff the
RPTs in the early months of the pandemic when there was a shortage of work
available for them, and it was unclear when campuses would reopen and the level of
work available could return to more normal levels.
80. The Union claims its view is bolstered by the fact that when RPTs were recalled,
they were not recalled to their own position but to a position in the same
classification. In this regard, the Union pointed to one of the grievors, Julie Davis, as
an example. From my review of the evidence before me, Julie Davis was a
Purchasing Assistant in Peterborough at the Sutherland campus before layoff
(according to her grievance); and, she was recalled on November 13, 2020 to a
Purchasing Assistant job at the Sutherland campus (according to the recall letter).
As such, it is unclear how the Union’s example is helpful as it is clear that Ms. Davis
was recalled to the same job at the same campus after her temporary layoff.
81. I turn now to consideration of whether the College had the right to effect a
temporary layoff based on the language of the collective agreement. In my view, the
fact that the collective agreement does not contain a specific temporary layoff
provision does not preclude the College from availing itself of the right to
temporarily layoff employees pursuant to the terms of the ESA. Indeed, the Ontario
Court of Appeal has essentially found as such when looking at the issue from the
perspective of a unionized employee.
82. In the London Machinery decision, cited above, the Ontario Court of Appeal held
that where a collective agreement gave an employee a right to longer recall rights
than under the ESA temporary layoff provisions, at the end of the 35 weeks of
temporary layoff in a 52 consecutive week period, the employee had to be offered an
election to take their severance and termination pay, or remain on layoff for the
remainder of the collective agreement-mandated recall period. As such, effectively,
a temporary layoff for a unionized employee cannot exceed 35 weeks in a 52
consecutive week period, whether the collective agreement so defines one or not.
83. The Court essentially found that an employer can temporarily layoff its
unionized employees (presumably unless there is some other greater right or
benefit as a result of the collective agreement language, although that was not the
issue before the Court); however, it may not do so for more than 35 weeks in a 52
consecutive week period, without permitting the employee at that juncture to make
an election to take their severance and termination pay and give up any remaining
recall rights, or to remain on the recall list for the remainder of their recall period.
84. The following excerpts from the Court of Appeal’s decision are pertinent:
39
59. More importantly, in my opinion, the language of s. 56(2)(c) of the Act is clear. It
provides for an agreement between an employer and a union, in respect of
unionized employees, that can bring about a temporary lay-off of any duration so
long as the requirements of s. 56(2)(c) are met. In this respect, to the extent that a s.
56(2)(c) agreement “interferes” with an employee’s right to termination pay by
extending the period of a temporary lay-off, this is accomplished by unambiguous
language.
60. This does not mean, however, that the duration of a temporary lay-off will be
extended automatically upon an employer and a trade union entering into an
agreement regarding recall rights. The key to engagement of s. 56(2)(c) is the
fact of a timely recall offer by the employer. In my view, to trigger the extension of a
temporary lay-off under s. 56(2)(c), the employer’s recall must occur before the
employment of the employee is otherwise deemed to have been terminated under
the Act and, in all events, within the maximum recall period fixed by the agreement
between the employer and the trade union. I return to discuss this issue later in
these reasons.
…
80. As I have indicated, the triggering event to achieve a temporary lay-off of more
than 35 weeks duration pursuant to a s. 56(2)(c) agreement is the timing of the
employer’s recall offer. A s. 56(2)(c) agreement is effective so long as the employee
is recalled “within the time set out in [the] agreement between the employer and the
trade union”. In McCleary’s case, the maximum recall period set by his collective
agreement was two years. But when McCleary’s lay-off reached the 35-week
mark, he had not been recalled by his employer “within the time set out” in the
collective agreement so as to trigger the application of s. 56(2)(c). Indeed, he had
not been recalled at all. At that point, therefore, s. 56(2)(c) did not apply to
McCleary and, thus, his entitlement to termination pay and to an election under s.
67(1) were engaged.
81. I would describe the effect of the interplay among the relevant statutory
provisions in this fashion. At the time that McCleary’s grievance was filed, which
was after his lay-off had reached the 35-week mark, his lay-off was not deemed to
be a temporary lay-off under s. 56(2)(c) because he had not yet been recalled. His
lay-off thus exceeded the permissible statutory duration of a temporary lay-off and
his employment was deemed to be terminated by the combined operation of ss.
56(1)(c) and 56(2)(b) of the Act. He thereby became entitled to termination pay
under s. 61 and to an election under s. 67(1) concerning his termination pay and his
collective agreement recall rights. Contrary to the arbitrator’s findings, therefore,
McCleary was not a “prescribed employee” at the relevant time and was not
disentitled to termination pay pursuant to s. 55 of the Act.
85. In the TI Automotive Canada decision, cited above, as in the case before me, the
collective agreement appears not to have had any temporary layoff language. While
in that case the union grieved and argued for employees to be paid severance and
termination pay at the end of a 13 week layoff in 20 consecutive weeks, that position
was not upheld by the arbitrator. Rather, the arbitrator found that the ESA applied
to the extent that unless there was an agreement between the employer and union
40
to the contrary, the maximum temporary layoff period under the ESA of 35 weeks in
a 52 consecutive week period was the definition, and at that point, if the collective
agreement had a longer recall period for those on layoff, then the employer had to
offer affected employees the opportunity to sever their employment after 35 weeks
and take severance and termination pay, or to choose to remain on the recall list for
the remainder of their recall period, and then be deemed terminated and entitled to
severance and termination pay.
86. For the purposes of this case, what the finding in TI Automotive Canada suggests
is that unless a collective agreement has language addressing a temporary layoff, the
ESA temporary layoff provisions apply.
87. Similarly, in the Victorian Order of Nurses decision, cited above, the arbitrator
found that where the employer had given notice of temporary layoff to nurses, that
was sufficient to warrant the conclusion that the employer’s subjective intention
had been to effect a temporary layoff, even though there had been no mention of the
ESA in that instance (at para. 44). As in TI Automotive Canada and in the London
Machinery decisions, cited above, the arbitrator noted that under the ESA, the
maximum duration of a temporary layoff would be 35 weeks in a 52 week period,
after which an employee would have to offer an employee the election to sever
employment and take their severance and termination pay, or remain on the recall
list till the end of the recall period in the collective agreement.
88. In this case, the parties had no provision addressing a temporary layoff. The
College did not have work for its RPT employees, but wanted to keep them. It did
not know in early April 2020 how long it would need to be closed and therefore
have insufficient work for everyone, and the letters of layoff therefore advised the
employees that they were being temporarily laid off pursuant to the ESA.
89. I have found that the College had no intention of “eliminating” the RPT positions
in question when it first advised the grievors of the temporary layoff pursuant to the
ESA on April 9, 2020. Furthermore, since its action at that juncture did not amount
to a permanent layoff as a result of the elimination of positions, Art. 18.1(a) had no
application.
90. In the absence of any collective agreement language regarding temporary
layoffs, the College had the right, and indeed the obligation, to apply the ESA
minimum standards legislation to the situation where it had to effect a temporary
layoff for lack of work. Furthermore, there was nothing untoward in the College
applying the Art. 18 recall provisions once it had determined that it had work
available for some RPTs as the ESA contemplates the application of collective
agreement recall rights in s. 56(2)(c). In this case, the Employer provided the
grievors with a gratuitous paid notice period from April 9 to 18, 2020, with the first
day of layoff being April 19, but it had no obligation to do so. For all the reasons
outlined above, I find that the College had no obligation to provide the grievors with
a 21 calendar day notice period as Art. 18 had no application.
41
***
91. In the event that I am wrong about the temporary layoff of the grievors not
amounting to an Art. 18.1(a) layoff, I will outline why, in my view these grievances
would still be unsuccessful.
92. Assuming, without finding, that the April 9, 2020 temporary layoffs met the
definition of layoff in Art. 18.1(a), I will address the Union’s argument that the
collective agreement provided a greater right or benefit than did the ESA, so that the
Employer had to provide the grievors with 21 calendar days notice of layoff.
93. In the St. Marys Cement decision, cited above, the arbitrator addressed the
principles applicable when considering whether a collective agreement provides a
greater right or benefit when compared to rights and benefits in the ESA as follows:
47. As noted above, the parties do not disagree on the general legal principles.
Having carefully reviewed all of the cases placed before me, in my view the proper
analysis requires a comparison of total benefits in question under the Act with the
total benefits of the same subject matter under the Collective Agreement. This
requires taking the good with the bad on both sides of the ledger in order to
determine whether the employment standard in issue is displaced by the collective
agreement or exists as a right in addition to it. In making this comparison, it is the
employment standard that defines the "benefit" and only collective agreement
rights that relate to the same subject matter as that "benefit" may be weighed
against it. Finally, it is also appropriate to bear in mind that the Act contains the
basic minimum standards that the Legislature has determined ought to apply to all
employees in the Province of Ontario (other than employees who are specifically
excluded from some standards under the Regulations).
94. In the Extendicare decision, cited above, at paras. 34 and 35, the arbitrator
outlined the approach arbitrators have taken when considering whether a collective
agreement provides a greater right or benefit than the ESA as follows:
34. There is no real dispute concerning the general approach to determining
whether the greater right or benefit exception applies. The exercise requires
arbitrators to:
a. First determine what the relevant employment standard is; then,
b. Determine which provisions of the collective agreement "directly relate" to the
"same subject matter"; and then,
c. Weigh the relative benefits of the comparable rights.
(See, e.g., St. Marys Cement, at paras. 39 and 47)
35. There is also no dispute, and I accept, that in conducting the comparison it is
necessary to look at the relative benefits from a "global" perspective. This means
that once the employment standard has been identified, it is necessary to consider
that standard as a whole and compare it to the whole of the benefits under the
42
collective agreements (see Queen's University at paras. 8 and 38). Thus, as Arbitrator
Burkett finds at para 22 in Shepherd Village, there need not be a perfect correlation
between any given element of the standard in issue and the rights available under
the collective agreement: the phrase "directly relate to the same subject matter" is
"more elastic and encompassing, capturing the notion of relating to rather than
being exactly the same".
95. What are the proper comparators in this instance, when considering the
collective agreement layoff provisions and those of the ESA. Since Art. 18 only
addresses the elimination of a position or a permanent reduction in a RPT’s regular
hours of work, there is no temporary layoff provision in the collective agreement.
Section 56(2) of the ESA addresses and defines “temporary layoff” as up to 13 weeks
in any 20 consecutive week period, or up to 35 weeks in any 52 week period. Since
there is no reference to temporary layoff in the collective agreement, in my view
there cannot be a comparison. There is no subject matter in the collective agreement
which directly relates to the same subject matter in the ESA, i.e. temporary layoff.
96. Rather, as the Employer argued, the provisions of the collective agreement
stand side by side in this case because where there is a gap in the collective
agreement, employees are entitled to Ontario’s minimum standards, and the
Employer is not bound to apply some unrelated provision of a collective agreement.
97. Nonetheless, and again, if I am wrong about this, then I would have to consider
whether the collective agreement provided a greater right or benefit than does the
ESA. Assuming without finding that Art. 18.1(a) addresses temporary layoffs, I
would have to find that the collective agreement provided a greater right or benefit
to bargaining unit employees as it provided that no RPT could be laid off without
receiving 21 calendar days notice “from the College except in circumstances beyond
the reasonable control of the College” (Art. 18.3). By comparison, the ESA has no
notice provision to employees before an employer can temporarily layoff its
employees. The Employer conceded in its argument that if I found that Art. 18
applied, that the collective agreement provided a greater right or benefit by virtue of
the 21 day notice period.
98. On this notional argument, the next consideration would be whether the College
could bring itself within the exception in Art. 18.3 that it did not have to give the
RPTs 21 days notice because the circumstances in which the temporary layoff
occurred were beyond the reasonable control of the College.
99. In order for the College to rely on the Art. 18.3 exception, it would bear the onus
of proving that it had acted with due diligence and in a reasonable manner when
faced with a lack of work for the RPT employees as a result of the COVID-19
shutdown, a situation that it claims was beyond its reasonable control. As one might
expect, a review of the jurisprudence indicates that each case is decided on its
particular facts. Some situations amount to an emergency, permitting an employer
to rely on the exception language in their collective agreement, and others do not.
43
What is clear however, is that the burden is on the employer to prove that the
exception applies.
100. In Gentek Building Products, cited above, an arbitrator considered whether an
employer could rely on an exception in the collective agreement that would allow it
not to pay employees a minimum of four hours pay when they reported for work,
but there was no work available, and they had not been advised in advance. In that
instance employees attended at work for their shift, but due to an air compressor
freezing, the employer indicated they could not work, sent them home, and paid
them for one hour. The collective agreement stated that if an employee was called
to work or permitted to go to work without having been notified that there was no
work or insufficient work available, they were to receive a minimum of four hours
work or pay “unless the lack of work has arisen by reason of …other conditions
beyond the control of Management …”. Arbitrator Goodfellow, addressing the
question of onus in respect of the exception, stated as follows:
13. … The onus is on the Company to prove that the exception applies. It must
demonstrate that the reason for the lack of work was a condition beyond its
reasonable control. None of the points upon which it relies establish that fact. …
14. In other words, even accepting, as I do, the Robertshaw test, I am unable to find
that the Company has brought itself within it. In Robertshaw, Arbitrator Saltman
observed:
The term "beyond the control of the Company" is not defined in the
collective agreement. However, it is generally understood that this term
refers to circumstances which could not have been avoided with the exercise
of reasonable care. This does not mean that the Company is expected to take
every possible step to avoid even the most remote risk but only that it must
anticipate those risks which are reasonably foreseeable and take steps to
avoid them: see Sasco Tubes Ltd. v. U.S.W.A., Local 8341 15 L.A.C. (2d) 99
(A.M. Linden).
15. I agree with that statement. The Company is not, by Article 32, placed in the
position of an insurer of even four hours of employee work or wages against all
perils but only against those the occurrence of which, with reasonable care and
diligence, it could not have been prevented or avoided.
101. In the absence of any evidence as to why the air compressor had frozen, the
arbitrator held that there was insufficient evidence to support a finding that the
situation had been beyond the reasonable control of the company, and the grievance
was upheld.
102. In the SRI Homes decision, cited above, a home builder employer sought to rely
on an exception to a collective agreement requirement that it must give employees
five working days’ notice of layoff. The exception was “unless emergency shutdown
conditions exist beyond the reasonable control of the Employer”. In that instance,
44
the employer was advised one morning that the city of Lethbridge was likely to
issue a “Boil Water” order by later that day, and it did. Based on the evidence, the
arbitrator found that having been advised early in the day about the pending issue
there was little or no evidence that the employer had done anything to procure
water for use by its employees, despite the evidence that there had been water
available for purchase. Furthermore, after the employer had told all its employees
that they were laid off effective that day for an indefinite period, its manager was
able at the end of that day to acquire enough water for the following day. Despite
that, it was only after the “Boil Water” order was lifted by the following morning
that the employer started calling all employees to return to work. However, given
the time it took to reach them all, some employees lost hours of work before they
were all back by mid-day. The union sought payment for all hours lost as it argued
that the situation had not been beyond the reasonable control of the employer as
there was water available, and it could have purchased it earlier in the day in order
to avoid announcing a layoff. The arbitrator agreed with the union that the
employer had not met the onus of proving that it could bring itself within the
exception.
103. By contrast, in Brunner Manufacturing, cited above, where a significant part
required in the manufacturing process failed, shutting down the whole production
line, and the employer had to wait for the part to arrive from Kentucky and to be
installed, the arbitrator found that the employer did not have to give five working
days’ notice of layoff, nor advise the union and employees specifically that it was
relying on the exception that stated that “this provision shall not apply in the event
of fire, flood or emergency beyond the control of the company” (para. 1). Similarly,
in Robertshaw Controls Canada, cited above, when a degreaser leaked a toxic
substance overnight causing the incoming shift the next day to be sent home after
waiting around for 2.5 hours, the arbitrator was satisfied that it had been a situation
beyond the control of the employer, so it was not obligated to pay the collective
agreement-mandated four hours of reporting pay.
104. The decision in Salade Etcetera!, cited above, arose as a result of a COVID-19
outbreak at a Quebec plant, which caused the employer to quickly significantly ramp
up work at its British Columbia plant in order to meet a large number of outstanding
orders for salads, which are highly time-sensitive foods. The grievance was about
whether the employer had to pay its employees a double time overtime rate for
scheduling workers on a Saturday, which was normally a regular day off, or pay 1.5
times the rate because it claimed force majeure as a result of the COVID problems at
its Quebec operation. The arbitrator found that the situation had not been
reasonably foreseeable or avoidable by the exercise of due diligence, and that the
employer could rely on the emergency nature of the circumstances of having to fill
orders quickly when the Quebec facility was unable to do so.
105. On the evidence before me, and having taken judicial notice of the situation in
Ontario in March and April 2020, I have no trouble finding that the College could
bring itself within the exception in Art. 18.3.
45
106. Based on the ASF, on March 11, 2020 the World Health Organization declared
COVID-19 a pandemic. Following that date, many Ontario post-secondary
institutions began to suspend on-campus activities and close their campuses in
order to prevent the spread of the virus. On March 15, 2020 College President
Adamson advised all staff and students that the College was going to be
transitioning to on-line and alternate delivery of its educational services; it was
suspending its on-campus operations, and closing it campuses from March 16 to
April 3, 2020 due to the pandemic; and, advised that all employees would be paid
for their normally scheduled hours during that period. As of March 16, the College’s
campuses closed and employees began working remotely.
107. On March 17, 2020 the province of Ontario declared a State of Emergency
under s. 7.01(1) of the Emergency Management and Civil Protection Act. The College
President sent an email that day advising students and staff that additional actions
would be taken including requiring all students to move out of residence, with some
special arrangements for international students or students with exceptional
circumstances. Access to the campuses was further restricted at that point. By
March 20, 2020 all students except those in special circumstances had moved out of
all College residences. The decision was also made to delay the start of the Spring
2020 semester to May 19, 2020, and to move fully on-line for academic delivery for
that semester.
108. Following closure of the College campuses on March 16, 2020 it was clear to
the College’s senior management team that they had to consider that there was
significant uncertainty about how long the campus closures would be necessary and,
how significant the operational impact of the closures would be. As well, they had to
make decisions regarding staffing and continuing to pay employees beyond April 3,
2020.
109. By April 1, 2020 the College President, in her email message to all staff, was
signaling that she was committed to supporting full time staff and faculty for as long
as possible, and that other staff would be supported for as long as possible where
there was meaningful work available.
110. As a result of their deliberations, the senior management team decided, among
other things, that 81 less-than-full-time employees, including 59 RPTs would be put
on temporary layoff pursuant to the ESA, and on April 9, 2020 College President
Adamson so advised all staff of this decision. She pointed to the uncertainty about
how long the College would remain closed; the concerns regarding ongoing
availability of work for employees, and the current and future financial impacts,
which were already significant due to the COVID-19 emergency. She also noted that
in-person delivery of services was suspended; there were fewer students enrolled
for the Spring semester; there was a concern that would likely continue into the Fall
semester; and, the services being offered were significantly different than before.
She reiterated that the College’s priority was its full time employees.
46
111. President Adamson advised staff that full time permanent staff would remain
in their roles, but where there was a shortage of work, or if there was a need for
additional support, employees may be redeployed to assist in other areas of the
College. Those full time staff in “less-than-12 month” positions were going to be
scheduled for their annual unpaid leave periods. Almost all work performed by part
time support staff would be transitioned to full time support staff, and almost all
regularly scheduled part time support staff would be temporarily laid off. President
Adamson indicated she hoped the temporary layoff would not be for long.
112. Between April 7 and 9, 2020 the College met with each of the 61 RPT
employees affected by the staffing decisions to advise them of the temporary layoffs,
and on April 9, 2020, 59 RPTs received letters regarding the temporary layoff, which
was effective on April 19, 2020. Some of the letters were later retracted for various
reasons which are not pertinent to this decision.
113. In addition to all of the communications from the President to all staff, the
College also met repeatedly with the Union leadership to keep them apprised of
what was going on, including providing the Local leadership with an advance copy
of President Adamson’s April 9, 2020 email announcement.
114. On all of the evidence before me, along with taking judicial notice of what was
occurring in Ontario in the mid-March to mid-April 2020 early COVID-19 emergency
period, the Employer has established that it made the decision to temporarily layoff
the RPTs in circumstances that were beyond the reasonable control of the College.
There were no reasonable steps that the College could have taken in advance of the
unprecedented health emergency that took over the province during the time
period in question to have avoided the urgent need to shut down all its operations,
and send all staff and students home. No exercise of due diligence on the College’s
part could have avoided the eventuality of the shutdown, which as we now know in
retrospect, lasted for much longer than anyone could have imagined prior to March
2020.
115. The Union argued that the College had not proved that it had to layoff the RPTs
because it had not shown any negative financial impact of the pandemic emergency.
It goes so far as to argue that evidence of the College’s financial situation is “the only
impact” that the Employer could rely upon to relieve it of its obligation to give paid
notice.
116. There is no basis for the Union’s assertion in this regard. Nothing in Art. 18.3
suggests that the Employer has to prove that the exceptional circumstances must be
of a financial nature. Furthermore, none of the jurisprudence relied upon by either
party suggested that an ability to pay is a consideration in whether the
circumstances giving rise to a layoff were beyond the reasonable control of an
employer.
47
117. As already outlined, the extraordinary circumstances of the College campus
shutdown due to the pandemic in the very early days of COVID-19 in this province,
and the fact that at that juncture no one, including the College, knew how long the
shutdown would last, or what the effect would be on student enrollment, or how
services would be delivered to those students still attending on-line classes, the
College has established that it did not have sufficient work available to continue to
employ the RPT grievors, and therefore had to temporarily lay them off.
118. For all of these reasons, even if I am wrong about Art. 18 having no application
to the situation that gave rise to these grievances, I would find that the Employer
had established that it did not have to give the grievors 21 calendar days notice of
layoff due to the exceptional circumstances extant at the time that were beyond the
reasonable control of the College.
***
119. For the reasons outlined above, the grievances are dismissed.
Dated this 26th day of April, 2022.
“Gail Misra”
Gail Misra, Arbitrator