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HomeMy WebLinkAboutTrowell 10-11-29 IN THE MATTER OF AN ARBITRATION BET WEE N: CAMBRIAN COLLEGE (The "Employer") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 655 (The "Union") AND IN THE MATTER OF THE GRIEVANCE OF MARY LOU TROWELL BOARD OF ARBITRATION David K. L. Starkman Mark Piquette Pierre Martin Chair College Nominee Union Nominee APPEARANCES FOR THE COLLEGE Timothy Liznick Hilary Jarvis Counsel Co-counsel APPEARANCES FOR THE UNION Laura Johnson Nick Sunday Nadia Shahabun Ed Arvelin Grievance Officer Chief Steward OPSEU Trainee OPSEU Trainee A Hearing in this matter was held on November 10, 2010 at Toronto, Ontario. 2 AWARD The grievor, Mary Lou Trowell, alleges that the Employer has violated article 17.01 H of the collective agreement which provides: Expiry of Credits 17.01 G Subject to 17.01 H, upon retirement, layoff or termination of employment, any credits standing in the name of the employee shall be cancelled and shall be of no effect Protection of Existing Rights 17.01 H Notwithstanding 17.01 G, employees hired into the academic bargaining unit before April 1 , 1991, shall be entitled to utilize available credits (or portions thereof) at the time of retirement, termination of employment or lay~off as a lump sum gratuity calculated in accordance with the terms of the pre-existing Cumulative Sick Leave Plans, where applicable and where the employee is eligible and shall not exceed the amount of one-half of the employee's annual base salary as of the date of separation. The background facts are not in dispute. The grievor commenced employment at Centennial College in Toronto, in 1986 and worked at that College until August 14, 1992. On August 4,1992 she commenced employment at Cambrian College in Sudbury, Ontario where she worked until retirement in June, 2010. When she left Centennial College the grievor had accumulated 118 sick leave credits and at the time of her retirement from Cambrian College she had accumulated a fwiher 352.5 sick 3 leave credits. It was the position of the Union that the grievor was entitled to a sick leave gratuity in accordance with article 17.01 H, and reference was made to a Cumulative Sick Leave Plans Letter of Understanding and Sick Leave Credit Transfers Letter of Understanding both of which have been in predecessor collective agreements dating back to 1983 and which provide as follows Re: Cumulative Sick Leave Plans This will serve to confirm the advice given in negotiations by the Colleges' Negotiating Committee that the Colleges will continue the Sick Leave Plans as in operation on August 31, 1973 until March 31, 1991. This will also confirm the agreement of the parties that the right of employees hired before April 1 , 1991, to be paid a lump sum gratuity on retirement, termination of employment or lay-off will be protected and will be maintained in perpetuity, and any amendment of the right of such employees to the gratuity shall be subject to ratification by majority vote of such employees. RE Sick Leave Credit Transfers This is to confirm the understanding reached at negotiations that an employee hired by a College of Applied Arts and Technology without a break in service from a previous College of Applied Arts and Technology will have college earned sick leave credits recognized by the employing College at the employee's option. However, the vesting period for gratuity purposes will not be transferable and will recommence with the date of employment at the hiring College... The Union referred to the history of the letter of Understanding and of article 17.01 H. Prior to 1989 there were a variety of sick leave gratuity plans at various colleges 4 throughout Ontario. In an Award dated November 28, 1989 Arbitrator Martin Teplitsky ordered that a comprehensive cumulative sick leave Plan for all employees be instituted effective April 1, 1991. It was the position of the Union that the titles and the language of article 17 of the collective agreement was clear and preserved the grieVor,s right to a sick leave gratuity. When the grievor came to Cambrian College in August, 1992 she brought her accumulated sick leave credits with her and after serving the ten year vesting period, those credits vested, and in accordance with 17.01 H she was entitled to use those credits to receive a retirement gratuity. In this regard reference was made to the decision in Workers' Compensation Board of British Columbia and Compensation Employees' Union (Savoie Grievance), 2001) 102 L.A.C. (4th) 1 @, Taylor). In that matter the grievor was terminated for cause and was claiming severance pay. In allowing the grievance the Board commented at paragraph 34: There is no evidence which permits me to give Article 63.01 a meaning other than that which accords with the plain and ordinary meaning of the language chosen by the parties to reflect their bargain. There is no reliable basis for reading the provision down or for reading in exceptions which the plain and ordinary words do not permit. This interpretation is fortified by the title of Article 63.01 -"Payment on Retirement or Termination", Termination may be voluntary or involuntary and there is nothing in Article 63.01 to exclude from the benefit those terminated for cause. The Union also submitted that, if a conflict was found between article 17 and the Letters of Understanding, the letters of Understanding should override because they were 5 written earlier in time and in this regard reference was made to the decisions in Re United Steel Workers and Steel Co. Of Canada Ltd, (1959) 10 L.AC. 169 (J.C. Anderson), and Peel Manor, a Division of Peel (Municipality and Canadian Union of Public Employees Local 2101 (Janssen Grievance), [1999] O'L.AA No. 95 (D.C. Stanley). The College submitted that there was no mechanism in the collective agreement to transfer from one College to another, and what transpired was that the grievor resigned her employment with Centennial College and was hired by Cambrian College on August 14, 1992. As such she was not an employee of Cambrian College on April1, 1991 and she had not completed ten years of employment with Centennial College prior to April 1, 1991 and therefor her sick leave credits had not vested prior to April 1, 1991 and by virtue of the language of the collective agreement could not vest for the purposes of paying a sick leave gratuity when she commenced employment with Cambrian College after April 1 , 1991. Reference was made by the College to the Ontario Colleges of Applied Arts and Technology Act, 2002 S.O. 2002, Ch. 8, Schedule F which establishes each College as a separate corporation without share capital, and Ontario Regulation 34103 thereto which provides that "academic staff member means a person who is employed by the board of governors as a teacher, counsellor or librarian". Reference was also made to the Colleges Collective Balgaining Act, 2008 S.O. 2008, Ch. 15 which establishes the 6 Council of Regents as the bargaining agent for all the Colleges, but does not alter the fact that each individual College is a separate employer. DECISION The Panel was not referred to any arbitral decisions in the College sector which were directly on point, although the Employer did refer to a number of decisions which strictly construed provisions dealing with the vesting of rights under the terms of the collective agreement. In George Brown College and Ontario Public Service Employees Union (Grievance of N. Triger), unreported, October 7,1998, (K.P. Swan) the collective agreement had language which provided that the grievor would only be entitled to a lump sum sick leave gratuity if she was employed for ten consecutive years. The grievor was notified of layoff at the end of an academic year when she was some weeks short of the ten year period. The Union argued that the grievor's vacation days which she took following the academic semester should have counted toward the ten year continuous employment calculation and the Board determined the grievor's employment ended at the end of the academic year and could not be extended by her vacation days. In Fanshawe College and Ontario Public Employees Union, (Grievance of P. Kinsella), unreported, May 4, 1999, (K.P, Swan) the grievor was claiming the right to receive a lump sum sick leave gratuity, which was payable after ten years of continuous service, and the Board held that the gratuity only recognized full-time employment and, insofar 7 as all of the grievor's service prior to 1988 was in a part-time, partial load or a sessional capacity, that service did not count toward the ten year period and therefore the grievor was not entitled to the gratuity. In Ontario Council of Regents for the Colleges of Applied Arls and Technology (Cambrian College) (Grievance of G. Smits), unreported, September 3, 1998, (M.K. Saltman), the grievor was denied a lump sum sick leave gratuity, and the Board held that the grievor could not demonstrate ten years uninterrupted service because the grieVor,s employment had been interrupted for a period of three weeks in 1991 following a partial load appointment, and for a period of two months following a full-time term appointment in 1993. A similar result was reached in George Brown College and Ontario Public Service Employees' Union (Grievance of Kevin Desrues), unreported, June 26, 2000, (G. Brent). In Dufferin Peel Catholic District School Board and o.E.C. T.A, Elementary Unit (Richardson), (2005) 139 L.A.C. (4th) 102 (M.B. Keller) the collective agreement provided for a retirement gratuity for teaching after ten or more years of continuous service and who commenced employment prior to December, 1979. The language in that collective agreement provided: Retirement Gratuity Teachers commencing employment after December 1979, will not be eligible for Retirement Gratuity. 8 A Teacher after ten (10) or more years of continuous service with the Board is entitled to a Retirement Gratuity when retiring for age or for physical or mental incapacity or upon death while in the employ of the Board under the same terms as would make such employee eligible for pension or disability allowance under th Teachers' Pension Act." As described in the decision all of the thirty-six grievors were teachers who "became pregnantt most sought and were granted a leave of absence relating to their maternity, some sought additional leaves of absence which were refused, others did not seek additional leaves of absence because they were told that none would be granted, and all resigned as a result of wanting to stay home longer with their child than the one~year leave of absence they were granted would allow. Virtually all indicated that they had always intended to return to work, and all in fact did later return to work at some point, and when they did return to work they were treated as new hires". The arbitration Board in that case held that: The starting point in the instant analysis has to be with the collective agreement. The interpretation of the agreement has to be done by analysing its wording, extrinsic evidence in the case of ambiguity, and logic. In view of the Board, based on this analysis, we are satisfied that the wording does not support the position of the Association. The evidence in the instant case is that each of the affected teachers was a new hire subsequent to December, 1979, Each had been a teacher prior to that date and each had resigned. Each maintained their "resigned" status for a period of time and subsequently reapplied for employment and was rehired by the board. Each, it was acknowledged by the Associationt was treated as a new hire. It is the view of this Board that the language in the instant collective 9 agreement is even more clear than the one interpreted by the Board chaired by arbitrator Brent. Paragraph 1 of article 7.020 could not be more clear. It is an outright prohibition and statement of eligibility: if a teacher commences employment after December 1979 there is not entitlement to a retirement gratuity, On the facts of the instant case each of the affected teachers commenced employment after December 1979. While it is true that each of the teachers also commenced employment prior to December 1979, it is impossible to disregard the fact that each resigned and each recommenced employment after December 1979. On a literal reading the grievance cannot succeed. Arbitrator Keller then went on the consider the application of the Charter of Rights and Freedoms to the facts of that case and awarded a gratuity to certain teachers. Similarly in this case the language is clear. 17.01 G provides that upon retirement any credits in the name of the employee shall be cancelled, subject to 17.01H which provided that employees hired into the academic bargaining unit before April 1 , 1991 can use their credits towards a sick leave gratuity. On the facts of this case1 the grievor commenced employment with Cambrian College after April 11 1991 and therefore in accordance with article 17.01 G is not entitled to a lump sum sick leave gratuity payout on retirement. In our view this interpretation does not conflict with the Letters of Understanding appended to the collective agreement. The first entitled Cumulative Sick Leave Plans protects the rights of employees to a lump sum sick leave gratuity if they were hired prior to April 1 , 1991 and if they complete the eligibility requirements in effect to vest the entitlement. The second letter titled Sick Leave Credit Transfers provides that teachers 10 who transfer Colleges without a break in service can have their earned sick leave credits recognized by the employing College at the employee's option. However, the vesting period for gratuity purposes will not be transferable. In other words when the grievor began employment with Cambrian College she had approximately 6 years of service with Centennial College and had accumulated 118 sick leave credits, and because she had not completed ten years of service her credits had not vested. Since she began employment with Cambrian College after April 1 , 1991 her sick leave credits could not vest for the purposes of obtaining a lump sum gratuity because of the language of the Sick Leave Credit Letter of Understanding and article 17.01 H of the collective agreement, but such credits could be used at Cambrian College after the ten year vesting period was completed, should the grievor become sick and be unable to work. The Board has therefore determined that there has been no violation of the collective agreement and the grievance is dismissed. 11 Dated at Maberly, Ontario this 29th day of November, 2010 ~m David K,L. Starkman Chair "I concur" Marc Piquette Employer Nominee "l concur" Pierre Martin Union Nominee