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HomeMy WebLinkAboutStafford 81-11-16 Nov !6/?! ~. . ( IN THE MATTER OF AN ARBITRATION BET~\TEEN : ALGONQUIN COLLEGE \. AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND IN THE MATTER OF THE GRIEVANCE OF L. STAFFORD BOARD OF ARBITRATION: J.F.W. Weatheri11, Chairman T. Kearney, Union Nominee _ K. Hal1sworth, Employer Nominee Hearings in this matter were held at Ottawa on April 3 and July 28, 1981 S'.,E. Goudge for the union J. Baker for the employer f " AWARD In this grievance, dated June 6, 1980,' the grievor protests the termination of his employment with the College. The College raises the preliminary objection that the matter. \ is not arbitrable, inasmuch as the grievor's employment ended due to his being past retirement age and his employment not being further extended. That, it was said, is a matter of superannuation, and is thus a matter, which may not be dealt with in a collective agreement; accordingly the matter would not be arbitrable. With consent, evidence and argument were heard on the merits as well as on the preliminary matter, and all aspects of the case were fully dealt with. The grievor was hired by the College on August,l,~1973, and was a Teaching ~aster in the graphic arts program. There is no question whatever as to his qualifications and competence, and indeed it is clear that the College relied heavily on the grievor's abilities and quaiities in conducting the graphic. arts program. As one of the College '.s memoranda put it, ,the grievor served the students, the college and his department cQnscientiously and well. In the early part of 1978, when the grievor was about to reach, or had reached, the age of 65, he was provided with ~ ( -3- certain forms relating to his retirement. It was the College's policy, and had been for some years, that employees, including members of the teaching faculty, , \ should retire from employment with the College at the end of the academic year in which they reach 65. This policy was, as we find, known at least in a general way by the grievor, although he had not deliberately concerned himself_ ,.,i th it. He had, as he acknowledges, made contributio~st6 a pension plan, the benefits of which would relate to the time of his retirement. In fact, the grievor did not leave the employ of-the College in 1978. He continued to teach in the graphic arts program throughout the academic years 1978-79 and 1979- 80. With respect to each year, his employment was extended by the Board of Governors of the College, upon the recomrnen- dations of the appropriate officers of the College,in accordance with the College's policy in that respect. These recommendations were based on the College's assessment of its program needs and, of course, its appreciation of the grievor's abilities. In each case the grievor was aware that an extension of employment had been sought, and that it had been approved, for a one-year term. ( -4- In May of 1980 the grievor was advised that a third extension of employment beyond age 65 would not be recommended. This was due not to any change in the Co~lege's assessment of the grievor's abilities, but rather to its determination to reduce the intake for the graphic arts program, because of inadequate facilities, among other reasons. At that time, the College had considered it necessary to layoff a number of teachers, and the union had made strenuous efforts to preserve the positions of teachers scheduled to be laid off. The grievor's name,was not on a list of employees scheduled to be laid o~f, and his position was not a subject of the efforts just referred to. The grievor was not in fact laid off and the reasons which led the union to be active in the cases of those who were would not necessarily apply in the grievor's case. . In any event, the ract is that the College, as it was entitled to do, came to a conclusion with respect to the staffing of the graphic arts program, and as a result it did not seek to extend the grievor's emploYment again. That decision was not reached in an arbitrary manner, and there was no attempt to discriminate improperly against the grievor. In our view, retirement from employment at 65 in accordance with a College policy to that effect is an aspect of "super- annuation" within th~ meaning of section 4 of The Colleges ( -5- ,) Collective Bargaining Act, 1975. It is none the less so by reason of the inclusion in such policy of provisions for extension of employment for one-year terms, in certain circumstances. Section 4 of the Act is as follows: , ,Negotiations shall be carried out in respect of any term or condition of employ- ment put forward by either party, except for superannuation. That provision, in our view, removes the subject of superannuation from those over which the parties might negotiate, or wh~ch they might include in a collective agreement. As we have indicated, it is our view that the matter of retirement policy, being an aspect of superannuation, was not one over which the parties were free to negotiate, and was not one which might be dealt with in the collective agreement. We do not, of course, speculate over what might be the case if the College were; under the guise of "retirement policy" , to seek toaccomplish some other end. Nhat is involved in 'the instant case is a reasonable and proper retirement policy (as many arbitration cases have held), applied in good faith. (' -6- If our view that the College's retirement policy is a matter within the scope of term "superannuation" as it , , appears in The Colleges Collective Bargaining Act, so that the matter is not one which could have been the subject of ' negotiations between the parties,. is wrong, it remains tq.at the collective agreement does not in fact deal with the matter. There is no evidence before us as to whether or not the matter was "put fonvard by either partyll during negotiations ( but whether it was or not (pace what appears to have been said by the majority of the board of arbitration in the Cambrian College case, (July 13, 1981)), the fact is that there were at least no "successful" negotiations on the , . subject,and the collective agreement is silent thereon. That being the case, it was open to the employer to establish a retirement policy - at least a reasonable one - unilaterally. Retirement, as suchJis dist~nct from discharge (see Bell Canada, 37 D.L.R. (3rd) 561 (S.C.C.)), and in our view is likewise quite distinct 'from layoff. The law is clear that absent any dealing of the.collective agreement with compulsory retirement, an employee compulsorily retrrea cannot invoke the seniority clauses of the collective agreement to challenge such retirement: Canadian Car, 21 D.L.R. (2nd) 273 (S.C.C.). ( -7- .. In the instant case, it is our conclusion from the facts and in the light of the law on the matter, that' the grievor was subject to compulsory retirement at the conclusion of the 1977-78 academic year, in accordance with the Collegets policy. It was argued, however, that the grievor did not then retire, and that the College did not "retire" him later, but merely allmved his second one-year contract to lapse. Thes'e one-year contracts, it was said, were incompati.ble with- the regime'ofcollective ,bargaining to which the parties were subject. Reference was made to the McGavin Toast- master case 54 D.L.R. (3rd) I (S.C.C.). There are a number.of responses to be made to this argument. First, the extension of the grievor's employment appears to have been to the grievor's (as well as the College's) benefit, and if it was improper (so as to have been the potential subject of a grievance by the union or by some other employee), then that would be a reason for dismissing this grievance, not for allowing it. Second, if the grievor's retirement at age 65 was something that the College could impose, pursuant to its policy (and for the reasons given above, such was the case), then the annual extensions of employment were separate matters (albeit pursuant to other provisions of the same College , ' ( -8- policy). That retirement became an effective reality following two extensions does not affect the original validity of the required retirement~ Third, this was not a matter of "individual bargaining" with the grievor, in the sense condemned by the McGavin Toastmaster case. That case, of course, dealt with a very different set of facts. Certainly, during the term of the "extensions", the grievor was subject to the terms and conditions of the collective agreement. His status would appear to be similar, at least in some respects, to that of Ilsessional" employees contemplated by the collective agreement. Again, however, it should be said that if the "extensions" were improper {although that . ' does not appear to be the case}, the appropriate remedy would appear to be to bring them .to an end, not to require their indefinite continuation. That an employee subject to retirement may have his employment extended for a term or series of terms does not appear, in itself, to be unreasonable. It may be that in some circumstances such a policy would be contrary to certain provisions of a collective agreement as, for example, with respect to laid-off employees. No such conflict appears to t,~ : ~ ( -9- arise in this case, and we do not consider that the extensions of the grievor's employment were improper. There was, however, no reouirement, that the employer - "- continue to grant such extensions. The fact that the grievor's employment was not extended for a third time gives rise to no valid claim under the collective agreement ,. which does not deal with the matter. While the effective date of the grievor's retirement was delayedr the retirement itself was, for the reasons we have give~ \ proper ,and not in violation of the collec.tive. l,agreement. For all of the foregoing reasons, the grievance must be dismissed. DATED AT TORONTO, this ,16th day of November, 1981. r' , , \ ;' /i r' I .1' , ..... .-' . I '-". I '\ "I ' , \,-r \\~L \: J -1 //" tt>\ r~ /1../ ' (. f Chairman . ,. ~ ... l../ · '"T. Kearney. (dissent)" Union Nominee UK. Hallsworth" Employer Nominee