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HomeMy WebLinkAbout1999-0942.Stewart.00-02-14 Decision o NTARW EMPU) YES DE LA COURONNE CROW"! EMPLOYEES DE L '()NTARW GRIEVANCE COMMISSION DE -- SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE, (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILElTELECOPIE. (416) 326-1396 GSB # 0942/99 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN The Assoclatlon of Management, Adrmmstratlve and ProfessIOnal Crown Employees of Ontano (Stewart) Grievor - and - The Crown m RIght of Ontano (Mimsm of MunICIpal Affairs and Housmg) Employer BEFORE RandI H. Abramsk." Vice Chair FOR THE Steven Barrett GRIEVOR Counsel Sack., Goldblatt, Mitchell Barnsters & Sohcltors FOR THE Len M~ EMPLOYER Counsel, Legal SerVIces Branch Management Board Secretanat HEARING lanum 24 2000 AWARD Pursuant to a one-year contract of employment, effectIve March 1 1999 the gnevor Stephan Stewart, was hIred as an unclassIfied employee In the posItIOn of InformatIOn Management Consultant wIth the Mimstry of MumcIpal Affairs and HOUSIng. By letter dated May 31 1999 her employment contract was termInated, effectIve ImmedIately because she was "unable to adequately carry out the key responsIbIlItIes of her posItIOn." She was gIven fourteen (14) days' pay In lIeu of notIce Thereafter a gnevance was filed by the AssocIatIOn on the gnevor's behalf It alleges, among other thIngs, that she was dIscharged wIthout just cause At the commencement of the heanng, counsel for the Employer raised an ObjectIOn wIth respect to the Board's jUnSdIctIOn, and the partIes argued the Issue as a prelImInary motIOn. No eVIdence wIth respect to the ments of the gnevance was heard. FACTS The partIes agreed to the folloWIng facts 1 The gnevor was successful In an external competItIOn WIth three other candIdates for the temporary posItIOn of InfOrmatIOn management consultant at the AdmInIstratIve ServIces Branch, Mimstry of MumcIpal Affairs and HOUSIng. The competItIOn Involved both testIng and an IntervIew 2 The gnevor receIved a letter of appoIntment dated February 26 1999 whIch IS attached as ExhibIt A. 3 The gnevor sIgned a document entItled "appoIntment to unclassIfied staff' on March 2, 1999 attached as ExhIbIt B 4 On May 31 1999 folloWIng a meetIng between the employer and the gnevor the gnevor receIved a letter dated May 31 1999 termInatIng her employment effectIve May 31 1999 The letter purported to serve as the gnevor's two-week notIce In 2 accordance wIth ArtIcle UC - 11 1 of the AMAPCEO collectIve agreement. The letter IS attached as ExhibIt C 5 AMAPCEO filed a dIspute wIth the employer on June 23 1999 whIch dIspute IS attached as ExhIbIt D A stage two meetIng was held to hear the gnevance on July 23 1999 The May 31 1999 letter of termInatIOn states, In pertInent part, as follows You JOIned the AdmInIstratIve ServIces Branch on March 1 1999 as a temporary unclassIfied employee In the posItIOn of InformatIOn Management Consultant. SInce that tIme your work assIgnments were dIscussed wIth you on several occaSIOns IdentIfYIng areas requmng Improvements DespIte these efforts, IncludIng the traInIng you receIved, you were unable to adequately carry out the key responsIbIlItIes of the posItIOn. Therefore, I regret to advIse you that your unclassIfied contract employment wIth the Branch wIll termInate effectIve May 31 1999 ThIS letter serves as your two week notIce In accordance wIth AMAPCEO CollectIve Agreement ArtIcle UC 11 1 WhIle your last day of employment IS May 31 1999 you wIll be paid for the penod startIng June 1 through to June 18 1999 The relevant provIsIOns of the collectIve agreement are as follows ARTICLE 3 - MANAGEMENT RIGHTS 3 1 Subject only to the provIsIOns of thIS Agreement, the nght and authonty to manage the busIness and dIrect the workforce, IncludIng the nght to dIscIplIne, dIsmISS, or suspend employees for Just cause shall be vested exclUSIvely In the Employer ARTICLE 15 - DISPUTE RESOLUTION PROCEDURE 15.7 Discharge, Suspension and Demotion Disputes 15 7 1 Where an employee has been dIscharged, demoted or suspended for a penod greater than 5 days, the AssocIatIOn may present a dIspute on hIs/her behalf dIrectly at Stage Two 3 ARTICLE 20 - DISCIPLINE AND DISCHARGE 20 1 No employee shall be dIscIplIned or dIscharged wIthout just cause It IS understood that dIscIplInary measures wIll be appropnate to theIr cause and subject to the pnncIples of progressIve dISCIplIne 202 An employee shall be advIsed of the reasons for dIscIplInary actIOn. When an employee IS to be dIscharged or suspended, he/she shall be advIsed In wntIng of the reasons for such actIOn. 20 3 It IS understood that nothIng In ArtIcle 20 confers on a probatIOnary employee any nght to gneve or arbItrate hIs/her dIsmIssal UC.l UNCLASSIFIFED EMPLOYEES UC 11 Termination of Employment UC 11 1 Employment may be termInated by the Employer at any tIme WIth a mInImUm of two (2) weeks' notIce, or pay In lIeu thereof UC.12 Other Articles Applicable to Unclassified Employees 3 Management Rights 15 DIspute ResolutIOn/ArbItratIOn 20 DIscIplIne and DIscharge POSITIONS OF THE PARTIES The Employer submIts that It acted pursuant to UC 11 1 and as long as the reqUIrements of that provIsIOn have been met (i.e a mInImUm of two weeks notIce IS provIded) then the Board's jUnSdIctIOn IS spent and the matter IS not further arbItrable It asserts that In thIS matter It IS clear that more than two weeks' notIce was provIded to the gnevor AccordIngly It contends that the matter must be dIsmIssed. The Employer argues that UC 11 1 IS an express provIsIOn that clearly gIves It the nght to termInate an unclassIfied employee's employment, at any tIme, WIth a mInImUm 4 of two weeks' notIce, or pay In lIeu thereof It submIts that under basIc pnncIples of contract InterpretatIOn, thIS provIsIOn must be gIven ItS plaIn meanIng. It notes that UC 11 1 eXIsts only wIth respect to unclassIfied employees, that It does not apply to eIther full-tIme or part-tIme classIfied employees, and that ItS purpose was to clearly define and lImIt the substantIve nghts of unclassIfied employees when theIr employment IS termInated to a mInImUm of two weeks' notIce, or pay In lIeu thereof In support of ItS posItIOn, the Employer relIes on Re Ontario Teachers Pension Plan Board and Ontario Public Service Employees Union (1997) 65 L.AC (4th) 138 (DavIe) In that case, an employee hIred pursuant to a one-year contract of employment was termInated a lIttle over a week after the one-year penod, wIth one week's pay In lIeu of notIce The collectIve agreement provIded, In respect to "contract employees" as follows ARTICLE 55 - TERMINATION OF EMPLOYEMENT 55 1 Employment may be termInated by the Employer at any tIme WIthIn the term of employment of a contract employee, wIth one (1) week's notIce, or pay In lIeu thereof A gnevance was filed allegIng that the gnevor's employment was termInated In bad faith. At the arbItratIOn heanng, the employer objected to the arbItrator's jUnSdIctIOn to hear thIS matter In lIght of ArtIcle 55 1 The arbItrator determIned that she had no jUnSdIctIOn to hear the matter determInIng that "the language used by the partIes In ArtIcle 55 1 IS clear and unambIguous" and "expresses the lImIted substantIve nghts of a contract employee, such as the gnevor whose contract of employment has been termInated by the gIVIng of one week's pay In lIeu of notIce" (65 L.AC (4th) at 152) The arbItrator 5 determIned that "the gnevor was not dIsmIssed" but Instead "hIS contract of employment was termInated by the employer" AccordIngly because the employee had been gIven one week's notIce, or pay In lIeu of notIce, "the arbItrator's jUnSdIctIOn IS spent" and the employee dId not have recourse to arbItratIOn. Nor In her VIew was It appropnate to Imply any further or other duty to be placed on the employer The arbItrator stated at p 152-153 Put somewhat dIfferently In thIS case the partIes to the collectIve agreement have expressly agreed that the employer has the substantIve nght to termInate the contract of employment of the gnevor by gIVIng hIm one week's notIce, or pay In lIeu of notIce It follows that a gnevance whIch seeks to challenge the termInatIOn of the contract of employment when one week's pay In lIeu of notIce has been gIven cannot succeed. The employer cannot have vIOlated the collectIve agreement by dOIng that whIch the partIes have expressly agreed It can do In the Employer's submIssIOn, thIS decIsIOn IS dIrectly on pOInt and should be followed In InterpretIng ArtIcle UC 11 1 The Employer asserts that when faced wIth a performance Issue WIth an unclassIfied employee, as It was In thIS case, It has the optIOn to deal wIth It In one of two ways It may eIther proceed by way of dIscIplIne, In whIch case ArtIcle 20 applIes, or It may termInate the employment contract wIth a mImmum of two week's notIce or pay In lIeu thereof It argues that the manner of proceedIng IS WIthIn the dIscretIOn of the employer and that ArtIcle 20 applIes only when It chooses to Impose dIscIplIne or to dIscharge an employee In thIS way It contends that both UC 11 1 and ArtIcle 20 may be harmomzed. 6 The ASSOCiatIOn contends that the proper way to Interpret UC 11 1 In lIght of ArtIcle 20 IS that It allows the employer to termInate the employment of unclassIfied employees, In cases other than dIscharge, wIth a mImmum of two week's notIce, or pay In lIeu thereof It argues that to accept the Employer's InterpretatIOn - that It has the sole dIscretIOn to proceed through dIscIplIne or termInatIOn - would render the "just cause" nght of unclassIfied employees Illusory The AssocIatIOn submIts that "just cause" protectIOn IS one of the most fundamental protectIOns In the collectIve agreement and one of the most Important nghts afforded to umomzed employees It contends that the partIes agreed, In UC 12, that the "just cause" protectIOn In ArtIcle 20 applIes to unclassIfied employees and asserts that thIS fundamental protectIOn cannot be ovemdden by UC 11 1 The ASSOCiatIOn submIts that the employer's termInatIOn of the gnevor's employment for performance deficIencIes constItutes a "dIscharge" SInce she was only three months Into a one-year contract of employment. It would be a "dIscharge" In ItS VIew whether the alleged performance problems were vIewed as culpable or non- culpable conduct, CItIng Re Purolator Courier Ltd And Teamsters Union, Local 938 (1992),24 L.AC (4th) 300 (Brent) Re American Standard, Division of Wabco-Standard Ltd And International Brotherhood of Pottery & Allied Workers (1977), 14 LAC (2d) 138 (Burkett) and Re Edith Cavell Private Hospital and Hospital Employees Union, Local 180 (1982) 6 L.AC (3d) 228 (Hope) The ASSOCIatIOn contends that because the gnevor was dIscharged for her performance, the employer must establIsh "just cause" and cannot escape that oblIgatIOn by charactenzIng ItS actIOns as a "termInatIOn" of employment. 7 In support of Its posItIOn, the Umon relIes on OPSEU (Ambrey) and Ministry of Attorney General GSB 429/84 (Knopf) In that case, the gnevance alleged that an unclassIfied employee was unjustly "dIsmIssed" whIle the employer contended that the gnevor had been "termInated" In full accordance wIth the Crown Employees Collective Bargaining Act (CECBA) and the collectIve agreement. The employer asserted that the Board had no jUnSdIctIOn to hear the gnevance At that tIme under CECBA an employee claimIng unjust dIsmIssal had the nght to gneve the matter before the Gnevance Settlement Board. The collectIve agreement also gave employees who were "dIsmIssed" the nght to file a gnevance On the other hand, the collectIve agreement gave the employer the nght to "termInate" an unclassIfied employee's employment wIth one week's notIce, or pay In lIeu thereof ArtIcle 3 11 of the agreement stated "Employment may be termInated by the Employer at any tIme WIth one (1) week's notIce, or pay In lIeu thereof" RelYIng on pnor GSB and court decIsIOns, the board determIned that "dIsmIssal" and "termInatIOn" were dIStInCt concepts and that "the Board can and must take jUnSdIctIOn to enqUIre Into whether the facts surroundIng the endIng of an employment relatIOnshIp actually sIgmfies dIsmIssal or a termInatIOn." (DecIsIOn p 9) It was not up to the employer to charactenze what occurred, but for the Board to determIne If there had been a dIsmIssal or termInatIOn. The Board, In ItS vIew clearly had "jUnSdIctIOn to enqUIre Into whether or not a dIsmIssal or a termInatIOn took place" (DecIsIOn p 9) 8 The Board further ruled that when employment IS termInated by "reason of a desIre to react to conduct on the part of an employee thIS must be vIewed as a dIsmIssal rather than a mere termInatIOn." (DecIsIOn p 11) "A termInatIOn" In contrast, Involved "the endIng of an employment relatIOnshIp for reasons that are other than those resultIng from the conduct of an employee" In thIS case, the ASSOCiatIOn argues that the gnevor was dIscharged for "conduct on the part of the employee" - her asserted work performance deficIencIes - and, as a result, was "dIsmIssed" or "dIscharged" rather than "termInated" AccordIngly It submIts that ArtIcle 20 applIes The AssocIatIOn dIstIngUIshes Re Ontario Teachers Pension Plan Board and OPSEU supra, on ItS facts It pOInts out that In that case, the gnevor's termInatIOn occurred at the end of hIS contract rather than dunng ItS term It further pOInts out that the arbItrator there determIned, wIthout explanatIOn, that the gnevor had not been dIsmIssed but was Instead termInated. In thIS case, for the reasons set forth In Ambrey supra, the AssocIatIOn contends that the OpposIte conclusIOn must be reached. Further the AssocIatIOn notes that the maIn legal Issue presented In the Instant matter - how to reconcIle the "just cause" protectIOn set forth In ArtIcle 20 wIth the nght to termInate wIth notIce under U C 11 1 - was not addressed by the Board. 9 In reply the Employer asserts that Its InterpretatIOn of U C 11 1 does not render ArtIcle 20 Illusory sInce It wIll contInue to apply to dIscIplIne and dIscharge It further asserts that the ASSOCiatIOn's InterpretatIOn essentIally nullIfies U C 11 1 SInce all decIsIOns to termInate unclassIfied employees wIll have to proceed to arbItratIOn to determIne If the decIsIOn was made for employee mIsconduct or for other reasons Such an InterpretatIOn, In ItS VIew cannot stand In lIght of the clear and express language set forth In U C 11 1 DECISION ThIS case Involves the InterpretatIOn of two provIsIOns In the collectIve agreement - ArtIcle 20 whIch reqUIres that the employer have "just cause" to dIscharge an unclassIfied employee, and U C 11 1 whIch allows the employer to termInate the employment of unclassIfied employees wIth a mImmum of two week's notIce, or pay In lIeu thereof Generally In InterpretIng a collectIve agreement, the agreement IS to be construed as a whole The terms of the agreement must be read together so as to gIve meamng to the entIre agreement, aVOIdIng an InterpretatIOn of one artIcle whIch would nullIfy or render absurd the effect of an another artIcle In thIS case, the employer's broad readIng of U C 11 1 would effectIvely nullIfy the ArtIcle 20 nghts of the unclassIfied employees The partIes specIfically agreed that ArtIcle 20 applIes to unclassIfied employees As a result, the partIes agreed that "[n]o 10 [unclassIfied] employee shall be dIscIplIned or dIscharged wIthout just cause" ThIS IS, as the ASSOCiatIOn submIts, a very Important nght. Indeed, It IS one of the most fundamental protectIOns afforded to umomzed employees To allow the employer to label an employee's dIsmIssal as a "termInatIOn" under U C 11 1 regardless of the reason for that dIsmIssal, would render the nght to "just cause" protectIOn under ArtIcle 20 Illusory There would be no reason for an employer to "dIscharge" an employee and be faced wIth an arbItratIOn to establIsh "just cause" when It could sImply choose to "termInate" the employee under U C 11 1 and gIve appropnate notIce If U C 11 1 allows the employer to "termInate" unclassIfied employees, regardless of the reason, then the protectIOn conferred by ArtIcle 20 IS effectIvely nullIfied. In thIS regard, I find the case of OPSEU (Ambrey) and Ministry of the Attorney General, supra, to be analogous Although the statutory framework dIffered, the basIc Issue of contract InterpretatIOn was qUIte sImIlar There was a provIsIOn that allowed contract employees to gneve theIr "dIsmIssal" and a provIsIOn that allowed the employer to "termInate" theIr employment wIth notIce The Board ruled that "dIsmIssal" and "termInatIOn" were not synonymous In ItS VIew "where an employer tnes to bnng an end to the employment by reason of a desIre to react to conduct on the part of an employee, thIS must be vIewed as a dIsmIssal rather than a mere termInatIOn." In contrast, "[a] termInatIOn can then be vIewed as the endIng of an employment relatIOnshIp for reasons that are other than those resultIng from the conduct of an employee" 11 I conclude that the same dIstInctIOn IS applIcable here Under U C 11 1 the employer may termInate the employment of an unclassIfied employee for reasons unrelated to the conduct of the employee wIth a mImmum of two week's notIce Although the employer asserts that such an InterpretatIOn effectIvely nullIfies U C 11 1 I cannot agree U C 11 1 wIll apply to termInatIOns that anse because of restructunng, reorgamzatIOn, or other change WhIle thIS InterpretatIOn lImIts the scope of U C 11 1 It does not nullIfy It. In my VIew thIS InterpretatIOn properly harmomzes the two provIsIOns It may well be, as the employer asserts, that under thIS InterpretatIOn many If not most, termInatIOn decIsIOns wIll be revIewed by the Board. But that result does not nullIfy U C 11 1 On the contrary such an InqUIry may be reqUIred to properly enforce both ArtIcle 20 and U C 11 1 As the Board held In Ambrey supra at p 9 [T]he Board can and must take jUnSdIctIOn to enqUIre Into whether the facts surroundIng the endIng of an employment relatIOnshIp actually sIgmfies dIsmIssal or a termInatIOn. Only once that questIOn IS answered can the remedIal jUnSdIctIOn, If any of thIS Board be determIned. However thIS Board certaInly does have jUnSdIctIOn to enqUIre Into whether or not a dIsmIssal or a termInatIOn took place In reachIng that conclusIOn, the Board cIted an earlIer GSB case Re Boucher and Trembley GSB No 218/78 at p 9 In whIch the Board determIned that ItS jUnSdIctIOn extended, at a mImmum, to charactenzIng any partIcular set of facts surroundIng the endIng of an unclassIfied employee's employment relatIOnshIp as a "dIsmIssal" or a "termInatIOn." To decIde otherwIse, In ItS VIew "would be an abdIcatIOn of our statutory responsIbIlItIes to decIde a claim by an employee that he or she had been dIsmIssed 12 wIthout just cause" SImIlarly the Board here must also take jUnSdIctIOn to determIne If what occurred IS a "dIscharge" under ArtIcle 20 or a "termInatIOn" under U C 11 1 The employer's InterpretatIOn, moreover would lead to the sItuatIOn In whIch an employee could gneve a one, three, five or ten day suspenSIOn, to whIch the Employer concedes ArtIcle 20 applIes, but then not be able to gneve hIS or her termInatIOn because the employer acted under U C 11 1 That sItuatIOn makes no sense The employer may not depnve an employee of the protectIOn of ArtIcle 20 by callIng a dIscharge a "termInatIOn" under U C 11 1 It IS not up to the employer to umlaterally charactenze ItS decISIOn as a "termInatIOn" when, In fact, ItS actIOns constItute a "dIscharge" for eIther culpable or non-culpable conduct. Conversely an employee cannot expand hIS or her nghts under U C 11 1 by callIng a "termInatIOn" a dIscIplInary dIscharge Re Boucher and Trembley supra at p 9 as quoted In Ambrey supra at p 7 The decIsIOn In Re Ontario Teachers Pension Plan Board and OPSEU supra, IS dIstIngUIshable The arbItrator In that case dId not address the key Issue Involved In thIS matter - the InterrelatIOnshIp between the "just cause" protectIOn and the nght to termInate wIth notIce - nor was that Issue raised. Instead, the focus of the decIsIOn was whether a duty to act In good faith or to act reasonably could be ImplIed. But clearly key to the decIsIOn was the arbItrator's conclusIOn, wIthout explanatIOn, that the "gnevor was not dIsmIssed, [h ]IS contract of employment was termInated by the employer" Because hIS employment was "termInated" the arbItrator determIned that the only oblIgatIOn on the employer was to provIde notIce, as set out In the collectIve agreement. 13 Indeed, Ambrey and Re Ontario Teachers Pension Plan Board are consIstent. Both hold that where an employee IS "termInated" as opposed to "dIsmIssed" the employer's sole oblIgatIOn under the collectIve agreement IS to provIde the reqUIred notIce, nothIng more Thus, In Ambrey the board determIned that the gnevor had been termInated for reasons of financIal constraInt and hIS only contractual entItlement was notIce SInce he dId, In fact, receIve the one week's pay In lIeu of notIce, there was no vIOlatIOn of the collectIve agreement. In Re Ontario Teachers Pension Board the arbItrator determIned that the employer paid the gnevor one week's pay In lIeu of notIce and she therefore had no further jUnSdIctIOn. In thIS case, It IS clear that the gnevor was termInated for work performance deficIencIes The letter of dIsmIssal states that she was "unable to adequately carry out the key responsIbIlItIes of her posItIOn." That IS a reason whIch relates to the conduct of the employee As a result, the employer's actIOn IS governed by ArtIcle 20 not U C 11 1 AccordIngly for the foregoIng reasons, the employer's prelImInary ObjectIOn IS demed. DecIsIOn Issued thIS 14th day of February 2000 fI, i'/oW11-flC RandI H. Abramsky Vice-Chair 14