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HomeMy WebLinkAboutMacDonald 11-01-19 IN THE MATTER OF THE COLLEGES COLLECTIVE BARGAINING ACT AND IN THE MATTER OF AN ARBITRATION BETWEEN CAMBRIAN COLLEGE OF APPLIED ARTS & TECHNOLOGY (the "Collegelt) ~ and ~ ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the "Unionlt) AND IN THE MATTER OF A GRIEVANCE OF MS CARRIE MACDONALD (2010-0656~OOO*) BEFORE: C. Gordon Simmons, Chairperson Marc Piquette, College Nominee Pierre Martin, Union Nominee ' APPEARANCES ON BEHALF OF THE COLLEGE: Tim Liznick, Counsel Denise Rancourt, Coordinator, Benefits Administration APPEARANCES ON BEHALF OF THE UNION: Eric del Junco, Counsel Rosaline Silliker, Local President Carrie MacDonald) Grievor DATE OF AWARD: January 19, 2011 (the "Grievorlt) 2 This case involves a written notice of layoff to the grievor dated April 13, 2010 in which she was offered two options. One, she could elect to take recall rights pursuant to art. 15.6.1 of the collective agreement which entitled her to retain recall rights for 18 months. Or, two, she could elect to take layoff, waive her recall rights, and receive severance pay in accordance with art. 15.5.1 (ex. 2). On May 3, the grievor wrote to Mr. Re. RuIly, Director, Human Services, as follows (ex. 11): Severance May 3, 2010 Mr. RC Hurly Director, Human Services Mr. Hurly: This letter is to inform you that I, Carrie MacDonald,have elected option (2), to waive my recall rights and receive 21 weeks of severance pay. Carrie MaoDonald On May 5 the grievor filed her grievance which reads (ex. 3): Statement of Grievance: The employer is in violation of the relevant provisions of the Collective Agreement on, or about, April 13, 2010 by abusing article 3 and denying the employee's rights under a rtide 15 (and other applicable policy, article, or legislation). Settlement Desired: Full redress, including, but not limited to, affording the employee every opportunity to allow her to bump into a position within the College. 3 The college raised two preliminary objections to having the matter proceed to the merits of the grievance. This decision deals with the preliminary objections only and does not consider the grievance on its merits. As an aside, it is to be noted there were initially two grievances filed. One grievance, that of Ms Szewcyk (2010-0656-0002) was withdrawn, but Ms MacDonald's grievance came fOIWard and is the subject matter before this panel. The 'college' s objections are succinctly set out in counsel's letter to union counsel dated November 29, 2010 and is reproduced here, in part, as follows (ex.. 11); The above-noted grievances are identical in the Statement of Grievance and Settlement Desired: Statement of Grievance: The employer is in violation of the relevant provisions of the Collective Agre!3ment on, or about, April 13, 2010 by abusing article 3 and denying the employee's rights under article 15 (and other applicable policy, article, or legislation). Settlement Desired: Full redress, including, but not limited to. affording the employee every opportunity to allow her to bump into a position within the College. By memorandum dated May 3, 2010, Ms. MacDonald elected to waive her recall rights and receive her severance pay. Ms. Szewcyk made the same election bye-mail also dated May 3,2010. Copies of both elections are attached. Pursuant to the terms of the collective agreement,the elections to receive severance pay made by both Grievors has effectively rendered the grievances moot or alternatively, eliminated their capacity to grieve. In this respect I direct your attention to articles 15.5.1 and 15.10 of the collective agreement. 15.5.1 General Where an employee (other than one who is affected by contracting out and who ejects to receive severance pay pursuant to Article 15.5.2) is laid off Elnd has: 4 less than five (5) years service and within twenty-one (21) calendar days of receipt of notice of layoff elects to waive all recall rights under the Agreement, he/she shall receive severance pay equal to one (1) week pay at his/her current salary for each completed year of service. more than five (5) years service he/she will have their severance pay treated pursuant to the provisions of the EmploY/1/fml Standards Ac,. Acceptance of severance shall not terminate the right to retraining-under Anicle 15.7. 15.10 Seniority Lost Seniority shall be lost and employment deemed to be terminated if: the person is laid off anq elects to waive all rights of recall and accepts severance pay. I also note that subsections 67 (3) and (5) of the Empluymenl Slandal'd~ ACI. 2000, provide: 57 (3) The employee may elect to be paid the termination payor severance pay forthwith or to retain the right to be recalled. (5) An employee who elects to be paid the termination pay shall be deemed to have abandoned the right to be recalled. As a result of the foregoing, both Griever's lsicl have voluntarily terminated their employment relationships with the College. Accordingly, the grievances are moot. The College's second basis for objection is pursuant to Artiele 18.6.2.1: 18.6.2.1 Layoff Grievance An employee claiming improper application of Aniele 15.4.3, shall state in the grievance the position(s) and name of incumbent, if any, to which the employee claims entitlement. The College will provide thecUHent PDFs of the positions, named in the grievance, to the employee within three (3) days after the filing of the grievance. If the grievance is not resolved, then the written reforral to arbitration shall specify, from the position(s) originally 6 designated, no more than four (4) positions which shall thereafter be the subject matter of the grievance and the arbitration. Neither grievance set out the positions and incumbents which the Grievors sought to displace. Similarly, neither referral to arbitration set out the positions claimed. Accordingly, if the matters are not moot, they are inarbitrable for failure to follow the mandatory procedures of the collective agreement. In view of the foregoing, we would ask that the Union consider withdrawing these matters. Should these grievances not be withdrawn, the College will pursue the foregoing objections at the outset of the hearing. The college maintains the collective agreement was dispositive of the issue. It maintains the grievor elected to waive recall rights and accept severance pay. By so doing, she gave up her status as an employee when she accepted the severance payment and, accordingly, no longer had status to pursue her grievance. The union takes the position the college was estopped from raising the severance pay issue because of what transpired in conversations between the grievor and Mrs. Denise Rancourt, Coordinator, Benefits Administration. Moreover, the college's notion that the issue is one of jurisdiction, that is, the grievor no longer has status, therefore, there is no jurisdiction to deal with the issue vyhich cannot be waived is not the case. The only exception to not being able to waive the matter is if the waiver somehow conflicts with public policy and, therefore, opens avenues of abuse. That is not the instant situation. What happened nere was notice of the layoff was given on April 13. The griever filed her grievance on May 5 and the matter was referred to arbitration following a grievance meeting on May 19. The grievor was still an employee when she filed her grievance and she continued to work. She had no intention of abandoning her 6 rights to pursue her grievance, Furthermore, the grievor was told by Mrs. Rancourt she could pursue her grievance. This, along with other factors, require the preliminary objections to be denied. The grievor, Ms MacDonald, testified in these proceedings. She has been employed full-time for 21 years a."Hl "Early Childhood Educator" in Child Care Services. She had been employed four years as a part-time.employee before becoming a full-time employee. Ms MacDonald testified she received the layoff notice which informed her there ). were no jobs she could perlorm. She met with Mrs. Rancourt either late April or early May, according to her memory, and was given a breakdown of how vacation pay and severance pay would be paid out. She stated nothing else was discussed dming this meeting. The grievor said she met with Mrs. Rancourt a second time in early May. She explained she needed to know more about severance and pension payments. She told Mrs. Rancourt she was grieving the decision made by the college that she could not bump and she needed to know more, such as, what if the grievance was successful and she was reinstated in her employment. The griever stated that Mrs.'Rancourt replied that she would have to repay the severance payment. She said she asked about the pension and was told by Mrs, Rancourtshe would be given an extension because her layoff was being grieved. The grievor said this second discussion with Mrs. Rancourt was after she had signed the election form on May 3. The grievor said if she had been told she could not grieve and accept severance payment she would not have pmsued the severance pay aVen1.le because she wanted to continue working at the college. 7 During cross-examination it was revealed the second meeting with Mrs. Rancourt was held on or about May 10 at which time the grievor was given a letter signed by Mrs. Rancourt which reads (ex. 14): Dear Ms, MacDonald: RE: Leaving Cambrian As your last day with Cambrian College will be June 30, 2010, I have listed below certain issues concerning your termination of employment. Your last pay will be for the period June 21"" 2010 to and including June 30th, 2010 and will be deposited to your bank account on Thursday, July 9th, along with any unused vacation and the gross lump sum payment of $1,849.20 which represents the balance of your notice period. RETIRING ALLOWANCE The College will require written direction from you as to when and how you wish to have the gross lump sum payment of$24,270.75 paid out to you. I have enclosed a Direct Transfer of a Retiring Allowance form should you wish to transfer the eligible portion to an RRSP. Please note this payment is subject to 1.375% union dues. SUN LIFE BENEFITS Your current Sun Life benefits will cease June 30th, 2010. I suggest any outstanding medical or dental daims be submitted for reimbursement prior to that date I have enclosed a Notice of Conversion which allows you to convert your life insurance of $25,000 to a personal plan with Sun Life. Please speak with a Sun Life Customer Representative for details, CAAT PENSION Please complete area A (initial bottom right hand corner of page 1), complete area D (initial bottom right hand corner of page 2), complete areas F and G on the enclosed Termination Form then return to my attention. This form is required in order for the CAAT Pension Plan to calculate and provide you with information regarding your termination options. The finalized document should be available late July and will be mailed to your home address, COLLEGE PROPERTY Please be sure to return to the appropriate Department, the following, if applicable: 8 AMEX card - VP Finance Human Resources. your staff ID card College Services - office, classroom, photocopier room keys Library Services - books or audio-visual equipment on loan Please also advise the Human Resources Department of any change of address. Should you have any questions, please feel free to contact me. Sincerely, Denise Rancourt (Mrs.) Coordinator, Benefits Administration Counsel for the college showed the grievor another letter dated, July 28, addressed to the grievor from one Susana Bo, Pension Analyst, CAAT Pension Plan, Toronto which set out the options respecting her pension entitlements. The letter contained a deadline of September 30,2010 for seiecting an option following which, if she failed to make an election, she would be deemed to have chosen a deferred pension option. It was at this point in the griever's testimony when she backed away somewhat from her earlier statement that Mrs. Rancourt had stated the pension extension would be granted because the grievor was grieving the college's decision. She changed her statement from "would" to "could" be granted. Ms MacDonald said she knew Mrs. Rancourt was in benefits and not in labour relations. However, the grievor was adamant in her position that Mrs. Rancourt advised her if her grievance was successful and she was reinstated in her employment with the college, she could repay the severance payment. Mrs. Rancourt also testified in these proceedings. She had been excluded while the grievor gave her evidence. She has been Coordinator of Benefits Administration for 9 22.5 years, Her duties are to administer the pension and benefits plans; leaves; attendance; and W.S.I.B. for all full-time employees. Mrs. Rancourt stated her involvement with employees who have been notified they are to be laid off is to review the tennination options concerning pension; benefits; and, if severance pay is involved, to review options as to how and when one may expect to receive such payments, Mrs. Rancourt remembered meeting with the grievor after she had prepared Exhibit 14 (reproduced above), when she went through its contents with the grievor. She testified she told the grievor if she is grieving she should contact the eAA T Pension Planpeople concerning her termination options to enquire whether they could be deferred. She was asked if she would have discussed the grievance procedure and severance pay with the grievor to which she answered, "I'd not discuss grievance procedure as I am not familiar with grievances - anything that would have come up would have been directed to the Director, Mr. Robert Hurly, at the time", Mrs, Rancourt said she did not recall the grievor saying she was going to pursue a grievance. She denied having had any discussion with the grievor about a grievance. When it was put to her that the grievor indicated Mrs. Rancourt told her she could repay the severance pay if the grievance succeeded - Mrs. Rancourt stated, "I have no authority to make that decision or give that advice". She was then asked "to be clear- did you make that statement?" Mrs. Rancourt replied, "No, I did not". There are at least two problems with the divergent evidence the grievor and Mrs, Rancourt have given. One, it must be remembered that the grievor elected to take severance pay in lieu of layoff on May 3 when she notified Mr. Burly to that effect. She , I 10 made her election before she sought or was given advice on what would happen in the event her grievance was successful. If her evidence is accepted then it must be concluded that she changed her mind about accepting severance payment outright with a view to leaving her employment with the college. As the conunents ?elow will reveal, the Board is uftable to accept that conclusion. The second problem is the grievor received" notification by letter dated July 28 from the CAAT Pension people that she had to select certain options and notify CAAT by September 30 in relation to how she was totake her pension. The letter stated, in part (ex. 15): Termination Options. Deadlines The Member must return the completed documents to the CAA T Pension Plan by 30 September 2010. After that date they will be deemed to havo chosen a Deferred Pension option. " There is no evidence the grievor sought ariy advice from CAAT what would happen to her pension selection if her grievance was successful and she was reinstated in her employment. Nor is there any evidence she contacted CAAT to request a deferral in having her pension benefits begin. Surely, when she received no~ification from CAAT over what she must do in regard to her pension status, she would have made enquiries about it, but she did not, or, if she did, the Board was not so informed. This brings the matter back to the severance payment and what would happen if her grievance was successful. The grievor is positive she spoke to Mrs. Rancourt about 11 the subject and received advice. Mrs. Rancourt is equally positive she never discussed what would happen to the severance payment if the grievor's grievance was successful. Mrs. Rancourt maintained she was not familiar with grievances and if the subject had come up she would have advised the grievor to see Mr. Hurly. The Board is of the opinion that Mrs. Rancourt's evidence is to be preferred over that of the grievor's. Mrs. Rancourt had no interest in the matter other than to review and assist employees who are being laid off or terminated with their benefits and to ensure employees understood the benefits they were entitled to receive. If the grievor had been truly concerned over what would happen to the "benefit package" she was about to receive following termination of her active employment, then it seems to this Board that an integral part of her concern involved her pension entitlement. Yet, we were not informed about any enquiries or efforts the grievor may have made with CAAT to ensure her pension entitlements could have been extended to await the outcome of her grievance for reinstatement. This is where we part company with the grievor's evidence. We cai16rtly assume the grievor made her election or if she did not, CAAT would have implemented the plan on September 30. 2010. To repeat, there is no evidence the grievor did anything about deferring or attempting to defer the crystallization of her pension pending the outcome of her grievance. Further, and equally important, is Mrs. Rancourt's evidence about advising the grievor to contact CAA T concerning pension benefits. The "grievor does not dispute this although she was required to modify her version of the discussion over pension entitlements in cross-examination. By Mrs. Rancourt having directed the grievor to seek 12 advice over pensions to CAAT, her testimony takes on more significance. She stated if the subject of grievances had come up she would have directed the grievor to Mr. Hmly. It appears to this Board it would be consistent for Mrs. Rancourt to offer the same advice concerning the processing of grievances as she did with respect to pensions. We, therefore, accept Mrs. Rancourt's evidence she did not give advice to the grievor on matters relating to grievances. For the foregoing reasons we find the grievor elected to take severance pay pursuant to art. 15.10 with all of the consequential results contained therein. Accordingly, for these reasons, this aspect of the grievance cannot succeed and must be and is hereby dismissed. The second basis for the college's objection, namely that the grievor failed to comply with sec. 18.6.2.1, was that she failed to name the incumbents or persons she sought to bump need not be pursued in light of the Board's finding in respect to its first objection being successful. The grievance is dismissed. 13 Dated at Kingston, Ontario, this 19th day of Januarv ,2011. ~J:~~~ C. Gordon Sinunons Chairperson "Marc Piquette" I concur/dissent Marc Piquette College Nominee "Pierre Martin 11 I concur/dissent Pierre Martin Union Nominee