HomeMy WebLinkAboutRudenko 82-06-01
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IN THE MATTER OF AN ARBITRATION
BETtmEN:
ALGONQUIN COLLEGE OF APPLIED ARTS AND TECHNOLOGY
(Hereinafter referred to as the College)
At'lD
ONTARIO PUBLIC SERVICE E~WLOYEES UNION
(Hereinafter referred to as the Union)
AND IN THE MATTER OF THE GRIEVANCES OF TAMARA RUDENKO AND TED SCHNARE
BOARD OF ARBITRATION:
Ga!l Brent.
W. D. Shuttleworth, College Nominee
Ron Cochrane, Vnion Nominee
APPEARlillCES:
FOR THE COLLEGE:
Corinne F. Murray. Counsel
Gladys McRae, Personnel Assistant
John Hamilton, Dean
FOR THE UNION:
Ian Roland, Counsel
F. Begin
G. Hancock
T. Rudenko
T. Schnare
Hearing held in Otta~a on Harch 29, 1982.
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DECISION
The matter before this board arises out of the grievances of Tamara
Rudenko and Ted Schnare (Ex. 3) filed on Hay 20. 1981.
The grievance
was filed as a group grievance, but it is clearly the grievances of two
individuals who were affected by the same procedure and has been dealt
wi th in tha t manner by the parties.
The essence of the grievances
concerns the manner in which the seniori ty of the two teach! ng masters
was calcula ted.
The fac ts which "'''ere put be fore us are not the subject of any
di spute. The issue wi th l'lh.1ch the board must deal be fore the m.eri ts can
be considered is whether it has jurisdiction to determine the merits,
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gi ven the time limi ts .in the collecti ve agreement.
preli minary Objec ti on Re gardi n~ Timeliness
Ms. Rudenko WtlS first employed as a sessional teaching master on
June 6, 1977.
Mr. Schnare began as a sessional teaching master in
Fe brwny , 1979. Both of them were employed to teach in the Adult Basic
Educa tion Department.
The Director of that department was, at all
mate:ial times, Mr. Tom Evans.
It is apparent from the evidence that
both of the grievors were under tbe impression that as soon as they had
accumulated twelve months of service the College uould make some sort of
decision about their continued employment.
In May, 1979 both of the grievors had a meeting with Hr. Evans to
discuss the mathod of calculation of a month of work for the purposes of
determining their service. At that time Hr. Evans made it knmo1n to them
tha t there was some concern a bout reachi,ng the plateau of twelve months
because the College would then have to make a decision about whether to
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hire them or to terminate their employment. ~e told them that it was
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rs s1 ble ,give n....the me thop 0 f calc ula ti on use d by the Colle ge , to work
ove r fourteen days in a calendar month wi thout ha vi ng tha t month count
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towa rd thei r servi ce time.
The me thod 0 f calcula ti on used by the
College involved not counting spli t lo.'eeks (weeks which straddled the end
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and beginning of months) and not counting weeks in which there ~
feTHer than thirteen hours worked. r;~-:-;--~~~ grievors accepted Mr.
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Evans statements as correct.
In September, 1979 both of the grievors met wi th ~lr. Evans ag!lin,
and the me thod of calcula ting service time was explored again.
After
that meeting 1-1r. Evans issu~d a memorandum (Ex. '24), dated October 9,
1979, which se t out the method of calcula tion used to de termi ne service
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Both the grievors accepted this as an accurate statement of the
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correct method of calculation.
After that meeting both of the grievors checked their records frOll!
tilDe to time in order to determine the number of months which were
credi ted to them.
They both sat.; tha t the months we re bei ng credi ted
according to the me thod descri bad by Hr. Evans) and they accepted that
as accurate.
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On November 11) 1980 Ms. Rudenko received a memorandum (Ex. 13)
which read. as follows:
Tamara Rudenko joined the establishment staff on
Sl?ptember 26, 1980. However, because she was
pre vi ously employe don a tempora ry ba si s, she i s
enti tled to credi t towards tile two year
probationary period,. in accordance with the
}1eulorandum of Understandi ng.
A payroll check indicates that Tamara Rudenko has
earned 16 months credit. Therefore the date for
regular status review will be Hay 26, 198!.
Hs. Rudenko said that she was surprised about the sixteen months credi t;
hO";.lever, she was assured by the College that that was correct. She did
not question the matter any further and did not contact the Union. .
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On November 11, 19130 Mr. . Schnare received a memorandum (Ex. 19)
identical in form to that received by l1s. Rudenko.
That memorandum
inforrred him that he had joined the establishment staff on September 26,
1980, that he had earned tto.>elve months credi t, and tha t hi s regular
status reviel'/ would be on September 26) 1981.
Hr. Schnare accepted this memorandum as correct and did not make
any inquiries of the College or the Union concerning the calculation of
his credits or the change in his status~
In }13y, 1981 both of the grievors were inforllled that they were
being bumped. They both went to the Union to inquire about their rights
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as probationary employees in a bumping si tuation.
In the course of
discussing the bumping situation with the Union, it became apparent to
the Union and, for the first time, to the grievors that there had been
an error in the calculation of their service.
Tha t resulted from the
method of calculation employed by the College, which was realized, for
the first time, to be based on a misapprehension concerning the days to
be counted to,'lard serY! ce time.
The error was first discovered on Hay 14, 1981 and on May 15, 1981
it was .brought to the College's attention. On May 19, 1981 the grievors
each received an identical memorandum from the College (E.c. 9) which
indicated that the same teethod of calculation used for all sessional
employees had been used to calcula te the grievors" service and that no
error had been made. On May 20, 1981 the grievance was filed.
The applicable portions of the collective agreement are set out
be low:
1.01 The Union is recognized as the
collective bargaining agency for all
employees of the Colleges engaged as.
...... save and except ...... teachers ...
,
on a ...... sessional basis.
exclusive
academic
teachers
employed
9.02 Complaints
It is the mutual des:{ re of the parties
here to tha t complaints of employees be adjusted as.
quickly as possible and it is understood that if an
employee has a complaint, he shall di scuas it wI th
hi s immediate Supervi sor wi thi n twenty (20) days
after the circumstances giving rise to the
corJplaint have occurred or have come or ought
reasonably to have come to the attention of the'
employee in order to gl ve his immediate Supervisor
an opportuni ty of adjusting hi s complaint. The
discussion shall be bet~~en the employee and his
imIlEdiate Supervisor unless mutually agreed to have
other persons in attendance. The 1mtrediate
Supervi sor' s response to the complaint shall be
given within se'.-en (7) days after the discussion
with the employee.
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9.05
General
the time
Grievance
a bandonedj
(a) If the grievor fai Is to ac t wi thi n
limits set out at any Complaint or
Step~ the grievance will be considered
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Appendix III
SESSIONAL EliPLOYEES
1 (a) A sessional employee is de fined as a
full-time employee appoi nted on a sessional basi s
. for up to tlrelve (12) full months of continuous or
non-continuous accumulated employment in a twenty-
four (24) calendar month period. ..................
(c) If a sessional employee is continued in
employment for more' than the period se tout in
paragraph (a) above, he shall be considered as
having completed the first year of his t-wo (2) year
proba tionary period and the rea f~er covered by the
other provisions of the Agreetnent. The balance of
such an employee's probationary period shall be
twelve (12) full months of continuouG or nQn-
conti nuous accumula ted employment duri ng the
imlrediately following tll.'enty-four (24) calendar
month pe dodo
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TI1ere is no doubt that the grievors relied on the statements of
in au.thority in the College in order to calculate their service
credi ts) and there is no doubt tha t the reliance conti nued up to and
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includiz{g }fay 14)
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1981 when they consulted the Union on an entirely
di fierent matter. There is also no doubt: that the College official was,
at all material times, honestly and faithfully relating the method of.
calculation used by the Collesa. Finally, there is no question that the
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College was mistaken 1n its method of calculation "and that it was an
honest mistake based on a misinterpretation of the way in which days
should be c re di te d tOlV'B rds a mon th 's se rvi ce .
It was completely reasonable for the grievors to re~y on Mr. Evans
and to accept his statement concerning the ~thod of calculation. Most
employees in their posi tion .would probably have done just as they did.
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ecaus~ of the wording of Article 9.05(a) of the a greeU'.ent , it is
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necessary for this board to determine when the twenty day period
referred to in Article 9.02 began to run.
It is clear that, if the matter is viewed as non-continui"ng, the
event complained of occurred more than twenty days before the grievance
lo1as filed.
In this case the grievors were not actually a~V'are of any
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breach of the collective agreement which affected them until 11.:1y 14th,
Wh~~_.__=~~-~u ~=~.n to~_~~~~~~___t~~-~:--~~:.~~~:_~.~~_.~.~~~n~~~~;~u;~..~.~- -
was na tural for the grievor's to depend on Hr. Evans to know how the
College calculated their servic~ (which he did), and on the Colle~ to
apply the correct method of calculation to their service (which it diet
not), the College did nothing to pre\'ent the grievors from discovering
the mistake, and. in fact, did not realize that it ~7as doing anything
wrong until sorre time after Hay 15, 1981.
Indeed, anyone wi th a
collective agreezrent who put his or her ,mind to the question could have
discovered that there was something wrong w"'i.th the College's method of
..~ calculation or at least have questioned the College's method:~/_______~/___
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The---first time that"the grievor's could possibly have been in a
pasi tion to question effecUvaly the calculation and to bave the
si tua tion rec ti fed through the grievance procedure was November 11,
1980, when they were both informed for the first time that they had
passed the first year of theil" probat.iollary periods.
It wa sat tha t
time that they would be able to claim that the collective agreement
applied to them pursuant to the provi s1 ons of Appendi:< III.
Prior to
tha t they would have been excludzd from the bargai ning un! t and would
not have b2en able to invoke the grievance procedure of Article 9. That
""8S also the first time that they vlould have been able to seek the help
and advice of the Union in pressing the.ir claims. Despite the fact that
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. this was an innocent Bli sunderstanding on the part of everyone concerned,
it would be manifestly unfair to consider any time before the grievor's
had access to the grievance procedure as running against them.
-De spi te the iac t tha ~ the grievors relied on the representa t1 ons of
College officials that the service was being calculated according to the
correct Ir.ethod, I am r.eluctant to hold the College to be an absolute
guarantor of the accuracy of its opionion as to how the collective
86'Teerren.t should be interpreted, to the extent that time lim.i ts should
not be applied in the normal fashion. Whenever any party puts forth its
view of the meaning of a clause in a collective agreement, that party,
and anyone relying on it, takes the risk that the interpretation may be
wrong.
It is the sort of normal risk which must be run every day in
order to admi ni ster a collecti ve agreement.
If the i nterpre ta.tion is
ad:IIi tted or found to be wrong, then there w-ill be a correc tion in the
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futuret and there may also be sor~ retrospective relief. The Jrere fact
that' an honest r.ristake in interpretation has been made by one of the
parties does nott of itself, mean that the other provisions of the
collective agreement, such' as time limi ts, should not be applied.
The situation would be quite different: if the;re w'ere some act on
the part of the College which prevented the grievors from discovering
the facts and assessing the proprie ty of the C9llege' s action. t~'hile:1 t
ndght be reasonable for the grievors to accept the statements 1I'ade to
them, it does not follow that they were thereby prevented from
ascertaining whether the College was correct or from .testing tbe
correctness of the College's method.
It is agreed that this collective agreement contains mandatory time
limi ts and tha t the Colleges Collec ti....e Barg-pining ~ does not contai n
any provision which gives the board the discretion to vary time limits.
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Given the facts in this caset it is concluded that the earliest time
when the ci rcunztance s ought reasonably have come to the grievor's
attention "''as on November 11, 1980 when they were informed of their
changad sta tus and the provi slons of thecollec ti ve agreement we re made
a ppli ca ble to them.
That does not end the matter of jurisdiction, though.
~..a tters of
this sort have been tradtionally viewed as continuing grievances by
arM trators and boards of arM tration.
At paga 79 in Canadian Labour
Arbitration (Bro~ and Beatty) the authors state:
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Where" the violation of the agreement is of a
con ti nui ng na ture t compliance wi th the time limi ts
for initiating a grievance is not as significant
unle ss the collec ti ve a greeme n t spec! fi cally
provides that the grievance must be launched within
a fixed period of time~ Continuing violations are
ones which involve repetitive breaches of the
collective agreement rather than simply a single or
isolated breach. ....... Wh~re it is established
that the breach is a continuing one, it has held
that the failure to initiate it within the
stipulated time from the date of its first
occurrence wi 11 not render it inarb! trable.
Howe va r t the re lie f or dama ge s awa rded in such
circuostallces my be lici ted by the time linti t.
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Thus t where a grievance claimed improper payment
and the grievance was allowed, the award liurl ted
the damages recovered to fi ve full working days
pri or to the fi ling of the grievance which was the
applicable time limi t for initiating the grievance.
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"re pe ti ti ve
breaches" and
grievors
unle ss remedied wi 11
a ffec t
the
throughout
thei r employment wi th
Colle~.
the
Accordi ngly ,
the
gr1 e va nee
arbi trable
breach
is
of
tbe
aaa continuing
collective
agreement,
and
the grievors are ent! tIed Co have thei r senior:! ty da tes
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corrected and the proper amount of se rvi ce credi ted to them. / Any
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financial re li e f is limi ted by the provi 51 ons of Article 9 of the
collective agreement to that \'1hich can be claimed wi thin t\renty days of
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the time when the grievors di scuased the! r complaint wi th the! r
Supervisor on May 15) 1982.
Deci sion on the Mer! ts
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Since there is no disagreement on the facts, and since the College
has admi tted tha t an error was made and tha t the collec ti ve agreement
was misinterpreted) the decision on the merits has become almost a
forma li ty.
The board accepts the interpretation that) pursuant to
Article 8.01 (b), any month in which the grievors completed if fteen or
~ore days should have been credited as a full month for the purposes of
calculating seniority. This should have been the case regardless-of the
number of hours worked in the week or the fact that a week straddled tto10
months.
The board ~;as provided with the employment records which related to
Ms. Rudenko's employment (Ex. 15).
;Ba sed on those records and the
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provi s1 ons of Article 8 and Appendix III of the collective agreement)
Hs. Rudenko would have completed the first tl~'elve months in a tloi-enty-
four
mon th
the
pe ri od
1979 and she
on July 25,
,
should
had
have
collective agreement apply to her from that date on.
From the records
provided) it would appear that she completed the next tw-elve months of
continuous or non-continuous service on or about September'19, 198C, and
her probationary period would have been completed then and not on Hay
26, 1981 as st.;tted by the College (Ex. 14). On September 19,1980 rots.
Ruclenko should have been credi ted wi th two years seniori ty, pursuant to
Article 8.01 (d) of the collective agreement.
,The board was not given all of l1r~ Schnare's records; however, from
the records .submi tted (Ex. 20) it is clear tha t Mr. Schnare comple ted
the ii.rst tw-elve months of his probationary period ou 11arch 7.5, 1980 and
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not on Spetember 26) 1980 as stated' by the College (Ex. 19). The
earliest that he could have completed his probationary period would have
been March 25. 1981. Now that the parties have agreed upon the correct
me thod of calcula ting serv:l ce under the collecti ve agreement. there
should be no problem in determining when the probationary per1.od was
comple ted, and of credi ting him wi th the two years service pursuant to
Article 8 .01 (d).
The board wi 11 remain sei zed should there- be any problems in
implementing the award or of calculating any monetary claims which the
grievors may have. ~
DATED AT LONDOn, ONTARIO THIS I DAY OF ~
fi~
, 1982
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Gail Brent
I,
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W.IA.; Shutf2.worth, College NO~ ~
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