GSB # 0942/99
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
The Association of Management, Administrative and Professional Crown Employees of Ontario (Stewart)
Grievor
- and -
The Crown in Right of Ontario (Ministry of Municipal Affairs and Housing)
Employer
BEFORE Randi H. Abramsky Vice Chair
FOR THE Steven Barrett
GRIEVOR Counsel Sack, Goldblatt, Mitchell Barristers & Solicitors
FOR THE Len Marvy
EMPLOYER Counsel, Legal Services Branch Management Board Secretariat
HEARING January 24, 2000
AWARD
Pursuant to a one-year contract of employment, effective March 1, 1999, the grievor, Stephan Stewart, was hired as an unclassified employee in the position of Information Management Consultant with the Ministry of Municipal 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 grievance was filed by the Association on the grievor’s behalf. It alleges, among other things, that she was discharged without just cause.
At the commencement of the hearing, counsel for the Employer raised an objection with respect to the Board’s jurisdiction, and the parties argued the issue as a preliminary motion. No evidence with respect to the merits of the grievance was heard.
FACTS
The parties agreed to the following facts:
The grievor was successful in an external competition with three other candidates for the temporary position of information management consultant at the Administrative Services Branch, Ministry of Municipal Affairs and Housing. The competition involved both testing and an interview.
The grievor received a letter of appointment dated February 26, 1999, which is attached as Exhibit A.
The grievor signed a document entitled “appointment to unclassified staff” on March 2, 1999, attached as Exhibit B.
On May 31, 1999, following a meeting between the employer and the grievor, the grievor received a letter dated May 31, 1999 terminating her employment effective May 31, 1999. The letter purported to serve as the grievor’s two-week notice in accordance with Article UC – 11.1 of the AMAPCEO collective agreement. The letter is attached as Exhibit C.
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 grievance 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 requiring 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 period 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 right and authority to manage the business and direct the workforce, including the right 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 period greater than 5 days, the Association may present a dispute on his/her behalf directly at Stage Two.
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 appropriate to their cause and subject to the principles of progressive discipline.
20.2 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 writing of the reasons for such action.
20.3 It is understood that nothing in Article 20 confers on a probationary employee any right to grieve or arbitrate his/her dismissal.
UC.1 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 jurisdiction 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 grievor. 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 right to terminate an unclassified employee’s employment, at any time, with a minimum of two weeks’ notice, or pay in lieu thereof. It submits that under basic principles 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 rights 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), 1997 CanLII 25120 (ON LA), 65 L.A.C. (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 period, 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 grievance was filed alleging that the grievor’s employment was terminated in bad faith. At the arbitration hearing, the employer objected to the arbitrator’s jurisdiction to hear this matter in light of Article 55.1. The arbitrator determined that she had no jurisdiction 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 rights of a contract employee, such as the grievor, whose contract of employment has been terminated by the giving of one week’s pay in lieu of notice.” (65 L.A.C. (4th) at 152). The arbitrator determined that “the grievor 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 jurisdiction is spent” and the employee did not have recourse to arbitration. Nor, in her view, was it appropriate 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 right to terminate the contract of employment of the grievor by giving him one week’s notice, or pay in lieu of notice. It follows that a grievance 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 minimum 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 harmonized.
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 minimum 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” right 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 rights afforded to unionized 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 overridden by UC.11.1.
The Association submits that the employer’s termination of the grievor’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), 1992 CanLII 14443 (ON LA), 24 L.A.C. (4th) 300 (Brent); Re American Standard, Division of Wabco-Standard Ltd. And International Brotherhood of Pottery & Allied Workers (1977), 1977 CanLII 2937 (ON LA), 14 L.A.C. (2d) 139 (Burkett); and Re Edith Cavell Private Hospital and Hospital Employees’ Union, Local 180 (1982), 1982 CanLII 5068 (BC LA), 6 L.A.C. (3d) 229 (Hope). The Association contends that because the grievor was discharged for her performance, the employer must establish “just cause” and cannot escape that obligation by characterizing its actions as a “termination” of employment.
In support of its position, the Union relies on OPSEU (Ambrey) and Ministry of Attorney General, GSB 429/84 (Knopf). In that case, the grievance alleged that an unclassified employee was unjustly “dismissed” while the employer contended that the grievor 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 jurisdiction to hear the grievance.
At that time under CECBA, an employee claiming unjust dismissal had the right to grieve the matter before the Grievance Settlement Board. The collective agreement also gave employees who were “dismissed” the right to file a grievance. On the other hand, the collective agreement gave the employer the right 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 prior GSB and court decisions, the board determined that “dismissal” and “termination” were distinct concepts and that “the Board can and must take jurisdiction to enquire into whether the facts surrounding the ending of an employment relationship actually signifies dismissal or a termination.” (Decision p. 9) It was not up to the employer to characterize what occurred, but for the Board to determine if there had been a dismissal or termination. The Board, in its view, clearly had “jurisdiction to enquire into whether or not a dismissal or a termination took place.” (Decision p. 9)
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 grievor 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 grievor’s termination occurred at the end of his contract rather than during its term. It further points out that the arbitrator there determined, without explanation, that the grievor 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 right to terminate with notice under U.C. 11.1 – was not addressed by the Board.
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 minimum 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 meaning 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 rights of the unclassified employees. The parties specifically agreed that Article 20 applies to unclassified employees. As a result, the parties agreed that “[n]o [unclassified] employee shall be disciplined or discharged without just cause.” This is, as the Association submits, a very important right. Indeed, it is one of the most fundamental protections afforded to unionized 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 right 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 appropriate 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 grieve 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 tries to bring 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.”
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 minimum 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 arise because of restructuring, reorganization, 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 harmonizes 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 jurisdiction to enquire into whether the facts surrounding the ending of an employment relationship actually signifies dismissal or a termination. Only once that question is answered can the remedial jurisdiction, if any, of this Board be determined. However, this Board certainly does have jurisdiction 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 jurisdiction extended, at a minimum, to characterizing 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 without just cause.” Similarly, the Board here must also take jurisdiction 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 grieve a one, three, five or ten day suspension, to which the Employer concedes Article 20 applies, but then not be able to grieve his or her termination because the employer acted under U.C.11.1. That situation makes no sense. The employer may not deprive 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 unilaterally characterize 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 rights 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 right 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 “grievor 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.
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 grievor 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 grievor one week’s pay in lieu of notice and she therefore had no further jurisdiction.
In this case, it is clear that the grievor 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 denied.
Decision issued this 14th day of February 2000.