HomeMy WebLinkAboutBorthwick 02-03-20
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IN THE MA TIER OF AN ARBIlRA TION
BETWEEN
THE ONTARIO PUllLIC SERVICE EMPLOYEES' UNION
(the Union)
AND
THE COMMUNITY CARE ACCESS CENTRE
IN RENFREW COUNTY
(the Employer)
AND IN THE MATTER OF THE GRIEVANCE OF
NANCY BORTHWICK
(the Grievor)
BEFORE:
Philip Chodos, Arbitrator
APPEARANCES:
For the Employer:
Russel W. Zinn, Nancy Rantz, Susan Foran
and Karen Roosen;
For the Union:
Susan Ballantyne, Nancy Borthwick,
Sue McSheffrey and Sue McCulloch;
Heard at Renfrew and Ottawa, Ontario, November 16 and 30, 2001 and
J<:illuary 25 and 30,2002.
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Nancy Borthwick was employed as an Occupational Therapist in the adult
program with the Renfrew Community Care Access Centre (CCAC) and its
predecessor, the Renfrew Health Unit, since 1991. She left her employment on
July 28, 2001 shortly after her 65th birthday. She has grieved the Employer's
decision not to extend her employnlent beyond age 65.
In early March 2001, Ms. Borth"Wick became aware of a retirement
planning workshop; she made inquiries about tills matter to the CCAC payroll
clerk, Gloria Piche, who suggested to her that she would be eligible for a service
recognition payment under the terms of a MenlOrandunl of Agreement between
OPSEU, Local 481, and Renfrew County CCAe dated September 29, 2000. The
purpose of this agreement was to provide a franlework for the possible transfer
of responsibilities to a successor employer. Paragraph 15 of the Agreement,
entitled URecognition of Service PaymentU, set out a form of severance payment
based on years of service with the Employer. A separate Memorandum of
Agreement of the same date specifically provided for a recognition of service
payment to two employees of Renfrew County CCAC, Wendy Jagat and
Connie Coulas, who had been employed as Registered Practical Nurses. and
whose functions had been divested by the Employer.
Following her discussion with Ms. Piche, Ms. Borthwick wrote the
following letter on March 7, 2001 to Ms. Susan Foran, Director of Corporate
Services:
Re; Retirement Planning
As J O1n planning to retire in the near future YOll can
appreciate 1 am trying to plan ahead financiallyo
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Could you please let me know the amount of the service
recognition payment under the Divestment Agreement as well
as any other payments I might be entitled to receive when I
leave.
Ms. Foran replied to this letter the same day, advising that:
You asked specifically about the {'.Recognition of Service"
payment under the divestment agreement with OPSEU, Local
481. This payment will only be made to staff who divest.
That is, you must be employed on the date of transfer to the
successor employer in order to receive the payment.
In fact, to date, no potential successor employer has yet emerged, and
there has been no divestment at this time.
Subsequently; Ms. Borthwick raised with her immediate supervisor,
Use Watson (the Client Services Manager) her interest in remaining on the job
past age 65. Some time later, Ms. Watson advised Ms. Borthwick that she would
have to put in a formal request for the extension.
Ms. McSheffrey, who is employed as a Physio.Therapist with the
Employer, and is, among other things, the President of the Local; recalls that
Ms. Watson stated that I'just a quick one~liner will do, indicating iliat you wish
to work past 65.11 A couple of days later, on May 7, 2001, Ms. Borthwick
advised Ms. Watson in writing that:
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OPSRU (Nallcy JJortJmick) IIl1d CCAe Rl!llficw CO/lIlty
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I would like to extend my retirement date up to a year past my
65111 birthday.
Thank you for considering this request.
On July 4, 2001) Ms. Borthwick received the following letter, dated
June 29, 2001, from Mr. Remy Beaudoin, Board Secretary, Renfrew CCAC:
This letter is to address your recent request for an extension of
employment with the CCAC in Renfrew County beyond age
sixty-five. As you are aware, according to the policy on
retirement set out in the CCAC in Renfrew County Human
Resources Manual, the Board of Directors may consider
applications from staff members for continuation of
employment beyond age sixty~five.
On June 28, 2001, your request was submitted to the Board of
Directors for a decision. After careful consideration of your
request, a motion was passed to deny extension of your
employment beyond age sixty-five. Included in the motion is a
mandate to management to review the Retirement Policy...
Ms. Borthwick noted that she was not given any reasons for the denial of
her request; she observed that there was no health-related reason why she
could not continue to work. Indeed, it is common ground between the parties
that Ms. Borthwick was and is a fully capable and competent Occupational
Therapist.
Ms. Borthwick noted that she received a pension estimate statement in
November 2001 fronl the Hospital of Ontario Pension Plan (HOOPP), which
denlOnstrates that the additional year of employment that she was seeking
would have generated an increased pension of $65 per month. It was also
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noted that HOOPP permits the continued participation in the pension plan up
to age of 69, uif your employer lets you work after age 65.OJ
According to Ms. Borthwick, she was never given an opportunity to make
a case for her extension to the Board of Directors. She observed that she
wanted to continue to work because she enjoyed the clients and wanted to help
her colleagues out; she feels that her departure would exacerbate an already
stressful workload situation for them. She noted as well that she has never
received any reasons for the rejection of her request, although she
acknowledged that she had not made any submissions to the Employer in
support of her request. Ms. Borthwick maintained that she would have
welcomed an opportunity to enter into a dialogue with the Board Members
concerning possible options which would allow her to continue to work with
the Renfrew County CCAC.
Ms. McSheffrey testified that the Union had been unaware that the
extension required a Board decision; it was her assumption that the request for
extension was merely a formality. She stated as well that the Union would have
been prepared to negotiate an agreement which would address any obstacles,
for example problems with the benefit carrier, occasioned by extending
Ms. Borthwick's employment beyond age 65. She maintained that it was a
considerable surprise and shock to the staff that a capable person like
Ms. Borthwick would not have had her employment extended, particularly in
view of the shortage of staff anlOng the occupational therapists at Renfrew
County CCAC, and the significant backlog of cases that the CCAC was facing.
OJ'SJHJ (N(11Icy lIorlltwick) fllld cClie RCIIJrcH' (:(}IIfI~I'
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Ms. McSheffrey also maintained that the Union has never been advised as
to the reasons for the Board's decision not to grant the extension. She stated
that the Union sought the opportunity to make a presentation to the Board
Members with respect to Ms. Borthwick's request for an extension as part of
step three of the grievance procedrne. The Union was seeking to have the
Board Members explain at the step three meeting the reasons for their refusal;
however, they were advised that while the Board was prepared to allow the
Union to make representations on the merits of the grievance, it would not
agree to their request. The Union therefore decided not to make
representations at the third level.
Ms. McSheffrey referred to a memorandum she wrote to management in
which she stated that:
...we would like to exercise our right to proceed to Step 3 of
the grievance procedure. We are requesting a meeting with
both parties present throughout where each side presents it
arguments and can respond to questions.
The Employer's policy with respect to retirement is set out in their
Human Resources Policies and Procedures Manual; the Manual provides the
following with respect to extensions of employment:
Extensions
. The Board may consider applications from staff members
for a continuation of employment beyond age sixty-five.
In those cases where it is deemed appropriate to grant
such an extensionl the extension shall be on the basis of a
contract position with the Agency for a mutually agreed
upon term of up to a maximum of onc additional ycar.
orSEU (Nallcy J1orlllH'icli) (Iud CCIIC ReJlfrcH' CO/IJIf)'
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Ms. Sheila Schultz has been on the Board of Directors of CCAC since April
2001 and since September has been the Chairperson of the Board. She was
present when the Board Conuninee (which consists of the same persons as the
Board itself) addressed the request for extension from Ms. Borthwick. The
Board was advised by Ms. Susan Foran that an occupational therapist, who was
not named, had submitted a request for an extension of employment beyond
age 65. The Board was advised by the Director of Client Services,
Ms. Karen Roosen, that the person nlaking the request was a good employee. In
response to a question from a Board Member concerning the need for
occupational therapists and the state of the CtUTent worldoad, Ms. Roosen
responded that there was always a need, that they had been advertising, and
the client waiting list was similar to what was happening across the province.
She also advised that there had been expressions of interest for employment by
an occupational therapist, and that she was in the process of conducting an
interview. The Board was also advised as to the current policy respecting
extensions (Le. Ex-hJbit G~5); Ms. Foran indicated that to date there have been no
previous requests for extensions. The Board was also told that it was
anticipated that there would be a divestment with respect to the occupational
therapists, which would result in service recognition payments to the
therapists. The Board did not ask either Ms. Foran or Ms. Roosen for their
recommendations in respect of the request for extension.
Ms. Schultz observed that the Board focused on whether as a matter of
policy extensions should be granted to employees over the age of 65. It was the
general consensus among the Board Members that exceptions, particularly in
the unionized environment, was a uvery slippery slope". Accordingly, the Board
felt that there should be no exceptions to the rule of retirelnent at age 65. She
also stated that the Board wa~ well aware that there was a shortage of
OPSBU (Nantz)' Bortlmicli) IImi CCAC Renfrew Coullty
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therapists; Ms. Schultz observed that in her previous capacity as Chief
Executive Officer of the Pembroke General Hospital, she knew that a shortage of
therapists was not unusual in the healthcare field.
A resolution was also passed by the Committee recommending to the
Board that at its June 28 meeting the request for extension of employment be
denied, that the policy on retirement be reviewed in the fall of 2001, and that
the section relating to extension of employment beyond age 65 be renlOved
from the policy. The Committee recommendations were duly presented to the
Board and adopted.
In cross-examination, Ms. Schultz observed that the Board had to weigh
the question of long waiting lists against their concern about setting a
precedent with respect to extensions of employment beyond age 65. The Board
concluded that there should be no exceptions to the rule of retil'ement at age
65. It was her recoHection that the Board was aware that the person maidng the
request for extension had been in the pension plan for a relatively short period
of time. She aclrnowledged that there was a ucrisis of need" in respect of some
health care professionals; however, it was her view that these problems were
cyclical and that eventually they tend to work themselves out; however she
agreed that since June 2001 the problems continue to exist.
Considerable evidence. was adduced, particularly by the Union,
concerning the occupational therapists' caseload and the state of affairs
concerning the staffing of occupational therapists before and after
Ms. Borthwick's departure. In light of the evidence of the Employer's witnesses
on this issue, and in particular Ms. Schultz' testimony concerning the Board of
Dil'e.ctors' de.libe.rations on Ms. Borthwick's request for extension, it is not
OPSEU (NtH!!')' J1oUhll'ick) tfnd CCAC Re/lfrcll' COUf/ty
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necessary to review in detail this evidence. It will suffice to note that, prior to
Ms. Borthwick's departure, the workload for the occupational therapists was
substantial and necessitated the prioritization of client needs into low, medium
and high priorities. There was general consensus among the witnesses,
including those from the Employer, that clients deemed of low priority would
have substantial and. in fact. indefinite waits for the services of occupational
therapists. It would also appear that the situation was common throughout
much of the province.
There is also no dispute among the witnesses that the recruitment of
occupational therapists has been problematic for a number of years and
continues to be so. Subsequent to Ms. Borthwick's departure, Linda Jamieson
came on staff as a part-time .6 Occupational Therapist. According to
Ms. Roosen. she had been aware for some time of Ms. Jamieson's interest in
working out of the Renfrew office. Ms. Roosen testified that while Ms. Jamieson
indicated that she was prepared io work only on a partwtime basis initially,
Ms. Jamieson anticipated that she would work herself up to full-mne by some
unspecified time in the future. Ms. Roosen also testified that there were four
openings for occupational therapists, of which only one has been filled, the
position assumed by Ms. Jamieson.
An examination of a chart submitted by the Enlployer, entitled
"Occupational Therapy StaffinglJ, which lists the occupational therapists on
staff in May and in August 2001, demonstrates that the net change in staffing
levels during this period was that a full-time employee, that is Ms. Borthwick,
was replaced by a part-time employee (.6) in the person of Ms. Jamieson.
Accordingly. it IS apparent that at the time tbe Board had addressed
Ms. Borthwick's request for an extension of employment, it was unlikely that
OPSEU (Nf/J/(Y Borthwick) IfW/ CCAC l{(~llfreH' COltlliy
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the Renfrew County CCAC could maintain the staffing levels subsequent to
Ms. Borthwick's departure.
Arguments
Counsel for the Union submitted that the central issue in this case is
whether the Employer was unreasonable in refusing to allow Ms. Borthwick to
work past age 65. The evidence demonstrates that there was a significant
waiting list of clients and that the staff was carrying severe caseloads; in
addition, the Employer had considerable difficulties in recruiting and retaining
competent occupational therapists. On the other hand, the Grievor was a very
experienced and competent occupational therapist who was carrying out a
significant caseload and who was willing and able to continue to work. It is
clear from the evidence that the only reason Ms. Borthwick's request for an
extension was denied was because the Board of Directors did not wish to make
an exception with respect to retirement at age 65. However, the policy in place
when Ms. Borthwick applied for the extension was that, in appropriate cases,
extensions would be granted. Accordingly, Ms. Borthwick was entitled to due
consideration based on her ability to work and the ilnpact of her not continuing
in her position; as well, consideration should have been given to the shortage of
occupational therapists and the significant waiting lists facing their clients.
Counsel contended that the frequent cited judgment of the Supreme
COUl't of Canada in Bell Canada and Office of Professional Employees'
International Union, Local 131, [1974] S,C.R. 335, has limited application in
respect of the issues in tlus case. The ratio of that case is limited to the finding
that retirement is a differenl concept from dismissal or suspension, and cannot
be subsumed by those terms. Counsel submitted that a more relevant
OPSEU (NalU)' Hor(/moic/() IIIld CCAC RIfIlFCH' CO/IIII)'
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a Hreasonableness test" to the employer's decision, and concluded that the
enlployer's decision failed that test.
Counsel for the Employer responded that an employer policy that is
exercised pursuant to a management right and that has no connection with the
colleclive agreement is not subject to the test of reasonableness. That is, in
this ins tanee the Board of Directors' decision not to grant the Grievor an
extension of employment is outside the scope of the collective agreement and
is therefore not subject to review. Mr. Zinn submitted that the Bell Canada case
(supra) makes it clear that the Employer has a right to establish a mandatory
retirement policy. He submitted that there is nothing in this collective
agreement, or in any statute, restricting the Employer's right to make policy
regarding retirement. Paragraph 3.01(c) (see below), which circumscribes the
Employer's authority to make rules and regulations regarding the conduct of
employees, concerns behaviour in the workplace; it does not address issues
such as retirement. This was the conclusion of the board of arbitration in
Re General Freezer Ltd. and United Steelworkers, Local 7455 (1974), 7 L.A.c. (2d)
365 (O'Shea).
The no discrimination clause in clause 3.06 (see below) specifically
references the grounds for discrimination in the Human Rights Code) which
does not include retirement at age 65. Counsel maintained that there is no
provision in the relevant collective agreement to which a retirement policy can
be related to; in the absence of such a provision, or where the Employer's
actions do not impact on the collective agreement, the Employer is not subject
to the test of reasonableness. Counsel referred to the following decisions jn
support of his submission: Re Cambrian College of Applied Arts and Technology
and Ontario Public Service Employees Union (1981), ] LA.C. (3d) 46 (Brunner),
OPSEU (Nolley Borthwick) mill CCAC RCJI/icw COli/II)'
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Re Corporation of the City of Toronto and Canadian Union of Public Employees,
Local 79 (1996), 58 L.A.C. (4th) 309 (Brunner) and Re Council of Printing
Industries of Canada and Toronto Printing Pressmen & Assistants' Union No. 10
et al. (1983), 149 D.L.R. (3d) S3 (Ont. CA.).
Counsel also submitted that, in any event, per Re Queensway General
~Iospital and Canadian Union of Public Employees, Local 1106 (1982), 24 L.A.C.
(3d) 354 (Pieher), the onus rests with the employee to provide reasons in
support of the request for an extension; in this instance. those reasons were
not forthcoming.
Mr. Zinn noted that this was the first request under the policy respecting
extensions of employment; in light of that, it was not surprising that the Board
of Directors would tLUn its mind to the policy; however, the Board did ask
questions about the reasons for the request, the situation respecting waiting
lists, etc. Accordingly, tlus information was before the Board. The shortages
were not a new situation; the maximrun extension provided under the policy of
up to one year would at best be a stopgap measure, Counsel also noted that
the policy respecting extensions provides that "the extension shall be on the
basis of a contract position with the Agency for a mutually agreed upon
term..." Accordingly, the parties would have to agree upon two variables: the
term of the contract and its terms and conditions; there is no jurisdiction for
the ArbiU'ator to make the agreement for the parties.
Mr. Zinn also observed that employees are assigned to specific locations
within the CCAe's area of responsibility. Tn the case of Ms. Borthwick, she was
assigned to Renfrew County; there is no indication that she was prepared to go
to another location, with the result that the Employer would not be able to hire
OPSEU (Nollcy BOIIIIH'icli) III/If CCAe Re/lfnn~ COIII/(Y
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Ms. Jamieson. If the one-year extension would have been granted, the Employer
would be in the Sillne position. In the circumstances, it was reasonable for the
Employer to replace Ms. Borthwick at the time of the request for extension.
In rebuttal, Ms Ballantyne submitted that the Bramptoll Hydro case
(supra) is authority for the principle that there is an implied term of
reasonableness in collective agreements. She noted that the Queensway
General Hospital decision (supra) did review the Employer's policy on the basis
of reasonableness. Furthellliore, Article 17.05 (see below) addresses the
pension plan. She noted that the Westroc decision (supra) considered the
question of remedy in similar circumstances as in the instant case. Counsel
also argued that if the staff shortages were not new, it would Inake sense to
retain sonleone like the Grievor to address it.
Reasons for Decision
This dispute concerns the Employer's decision to reject the Grievor's
request for an extension of employment beyond age 65, this request having
been made pursuant to the Employer's then retirement policy which provided
that "[TJhe Board nlay consider applications from staff members for
continuation of employment beyond age sixty-five."
It is the Union's assertion that the Board of Directors' decision not to
grant the request in this instance was arbitrary and unreasonable. The
Fmployer maintains that the determination by the Board of Directors not to
grant the extension was an exercise of a management prerogative which is
outside the purview of the collective agreement and hence is not subject to
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ARTICLE 3 - MANAGEMENT FUNCTION
3.01 The Union acknowledges that it is the exclusive function
of management to supervise, direct and control the
Employer's operations subject to the terms of this
Agreement, and without limiting the generality of the
foregoing, such function shall be deemed to include the
right to:
(a) maintain order, discipline and efficiency, and to
classify positions of employees;
(b) hire, discharge, direct, transfer, promote, demote,
layoff and suspend or otherwise diScipline
employees subject to the provisions of this
Agreement, it being understood that a claim by
an employee that she has been discharged,
suspended or disciplined without just cause or
that she has been improperly laid.off will be dealt
with under the grievance and arbitration
procedures provided f'or herein;
(c) to make rules and regulations regarding the
conduct of employees, provided however that any
dispute as to the reasonableness of such nlles and
regulations or any dispute involving claims of
discrimination against any employee in the
applications of such rules and regulations shall be
subject to the grievance and arbitration
procedures provided for herein. The Union shall
be notifIed in advance of the implementation of
such rules and regulations;
(d) determine schedule, shifts, hours, the content of
jobs, requirements, and to assign work to the
employees;
(e) determine the number of employees, the location,
extension, limitation, curtailment or cessation of
operations or any part thereo{; the services to be
rendered and whether to perform a contract for
yoods and services.
Or~~E[} (T\~j~;;~~~" 11;)n'lit,i~1\) iiiid CCriC.){~~;;n;ji'eHj (-,-'ou'''y
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Paragraph 3.01(c) makes the Employer's authority to "make rules and
regulations regarding the conduct of employees" subject to challenge by the
Union on the grounds of reasonableness or discrhnination. While Counsel for
the Union alluded to tIns provision in her opening statement, she made no
reference to it in her closing argument. Counsel for the Employer submitted
that the term "conduct of employeesll is restricted to the functioning of
employees in the workplace. In the Re General Freezer Ltd. case (supra)
Arbitrator O'Shea concluded that (at p. 369):
The rules of conduct to be observed by employees may be
established and enforced subject to the provisions of arts. 4.02
and 4.03 of the collective agreement. However a retirement
policy is not of the same character as a plant rule governing
employees' conduct and is not subject to the provisions of the
collective agreement relating to plant rules. The union
therefore has no right to challenge the company's retirement
policy under the collective agreement since no reference is
made to the retirement policy in the collective agreement.
I agree with Arbitrator O'Shea that it would be an unduly expansive
interpretation of the phrase lito make rules and regulations regarding the
conduct of employees" to conclude that it subsumes the Employer's retirement
policy.
In her argument, Counsel indicated that the Union was relying on Article
17.05 as a basis upon which the Arbitrator can take jurisdiction of this matter.
That provision states:
Ol'SEU (Nallcy lIorfhwick) Ill/d CCAC R('//jicfl' COlIl/ly
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17.05 Pensions
HOOPP shall apply to the full-time employees covered
by this agreement. Other employees may participate
in HOOPP subject to the conditions of the legislation.
With respect, in my view it would be an altogether unwarranted "stretch"
to conclude that this rather simple and straightforward statenlent about the
application of a province-wide pension plan opens the door to a review of this
Elnployer's retirement policies, and in particular the Employer's policies with
respect to extensions of enlploynlent beyond the normal retirement age. While
Arbitrator MacIntyre, ill the Re Westrock Industries Ltd. case (supra), was
prepared to take jurisdiction on the basis of a fairly cryptic provision
respecting the pension plan in the case before him - 1115.01 The non-
contributory pension plan agreed to and made effective April I, 1965, shall
remain in effect during the lifetime of the Collective Agreement..." - the
Arbitrator also came to the following conclusion (at page 176):
The next question, whic11 is somewhat more difficult, is
whether the compulsory retirement provisions are an
integral part of the pension plan, or merely referred to by
that plan as carrying certain mathematical consequences.
Here the language of the plan is instructive. It is not couched
in the passive or pennissive voice, but in the active or
mandatory. (fA member shall retire on his normal
retirement date" not (fmembers wlto retire" or even ('who
are retired by the EmployeI'll. The vrovisions can reasonably
be read as the insertion into the pension vlan of the
retirement volicv of the comvany. From then it is an easy
step to conclude that this plan is subject to the same arbitral
review which is available for other matters stipulated in the
collective agreement.
[Underlining added]
OPSEU (Naflc)' JJo/'(l1wkk) (Tlld ('CAC HcnJ,'eJII COllnl)'
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In the instant case, the language of the pension plan has not been put
before me; accordingly, I am in no position to state that lithe provisions can
reasonably be read as the insertion into the pension plan of the retirement
policy of the company." Moreover, the arbitral jurisprudence in Ontario
appears to support the conclusion that, absent some reference in the collective
agreelnent to the Employer's retirement policies, such policies are, generally
spealdng, beyond the ambit of arbitral review. Thus, for example, in the
Re Cambrian College of Applied Arts and Technology case (supra), Arbitrator
Brunner came to the following conclusion (at page 57):
In our view, none of these cases support the
proposition that a board of arbitration, absent some specific
provision in the collective agreement to which the retirement
policy can be related, has ju risdiction to entertain a
grievance which calls into question an employer's
administration of its retirement polky, on the premise that it
must do so fairly and reasonably....
In a more recent award concerning the application of early retirement
incentives (Re Corporation of City of Etobicoke and Canadian Union of Public
Employees, Local 185 (1996), 54 L.A.C. (4th) 229 (Spl'ingate), the Arbitrator had
this to say (at page 238):
Central to this case is the lack of any reference in the
collective agreement to early retirement or early retirement
incentives. Much of the union's submissions in essence
amount lO a clainz that the employer is under a general
obligation to exercise its nwnagelnent prerogatives in a
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()PSHU (Nancy J1ortltll'icl<) IlI1d CeAC Rmfi'ehl ('Ol/II(Y
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manner that is reasonable and non-arbitrary, and this
obligation is enforceable under the collective agreement.
The cases relied on by the Union, however, do not support
such a contention. Both the Toronto East General and
Metropolitan Toronto cases, as well as the cases they refer
to, indicate that the existence of a collective agreement does
not by itself create an obligation that an employer act in a
fair or reasonable manner. It is only when the exercise of a
management right conflicts with or undermines some other
rights set out in the collective agreement that an arbitrable
issue arises as to whether management acted in a reasonable
non-arbitrary manner. With the exception of those matters
discussed below, the union did not point to any employee or
union rights under the collective agreement that were in
conflict with or negatively affected by the early retirement
incentive plan or the manner in which it was implemented.
Accordingly, there was no implied obligation under the
collective agreement enforceable at arbitration which
required the employer to act in a manner that was
reasonable or non-arbitrary when offering early retirement
incentives. This conclusion is consistent with art. 9.06 of the
collective agreement which states that arbitrable matters
shall be only those which arise out of the interpretation and
application of this agreement.
(See also Re Canadian Broadcasting Corp. and National Association of
Broadcast Employees and Technicians (1992),28. LA.C. (4th) 75 (Picher).)
I would also note that in the Re Board of School Trustees of School District
No. 39 (Vancouver) case (supra) cited by Counsel for the Union there were
extensive clauses in the relevant collective agreement which addressed the
retirement age, as well as the possibility of an extension of employment beyond
Donnal retirem.cnt. In fact, in that case there was no discussion or even any
reference to a lnanagement rights provision.
OPSEU (Nallcy Borthwick) (/1/(/ CCAC Rel/frell' Coul/ty
03/21/2002 11:42rAX 613 567 2921
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Counsel for the Grievor has also suggested that it is open to me to find
that there is an implied obligation on the part of the Employer to exercise its
managerial authority reasonably and fairly. In support of this contention,
Ms. Ballantyne cited the Divisional Court judgement in Re Brampton Hydro
Electric Commission (supra), wherein the Court upheld the Arbitrator's decision
to take jurisdiction in respect of the termination of a probationary employee.
In so finding, the Court observed (at page 782):
1. In my view, the collective agreement before us has an
implied term/article/clause that neither party to the
agreement shall conduct themselves or act in any way
that is in bad faith, arbitrary, discriminat01Y or unfair.
The phrase lithe collective agreement before us" is of particular
significance. The importance of those words lies in the overarching principle
that the Arbitrator's authority must flow from the collective agreement. I do
not believe that the Com'! is saying that in every collective agreement there is a
necessary implication that the exercise of the Employer's authority is subject to
the test of reasonableness. To conclude otherwise would fly in the face of the
Ontario Court of appeal's judgment in Re Metropolitan Toronto Board of
Commissioners of Police and Metropolitan Toronto Police Association (1981), 33
O.R. (2d) 476 (Ont. C.A.).
Accordingly, with reluctance, I must conclude that the collective
agreement does not directly or indirectly inlpose any limits on the Employer's
authority to establish policies respecting retirement of enlployees.
. . ..... . n. __.""". ......~.....,---,_.,"',......-.-,---~- -------------~...-.-..~"~~.--,.-.-,~--~---
OPSEU (Nullcy Borthwick) 1I1It! CCAe Rel/frew COItJI~I'
0.3/21/2002 11; 42 FAX 613 567 2921
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As a consequence, I have no jurisdiction to address this grievance.
DATED AT OTTAWA, March 20, 2002.
OPSElJ (Nallcy IlOltllH'ich) ami CCAe Renfrew COllnly