Agreement covered grievance rights, but couldn't contract out of statutory protections
A last-chance agreement limiting a worker’s ability to file a termination grievance and arbitral jurisdiction does not prevent such a grievance if it alleges discrimination, an Ontario arbitrator has ruled.
The worker was appointed to the position of assistant professor in the School of Social Work at Toronto Metropolitan University (TMU) in 2006. At the time, she was working on her PhD in social work, so TMU’s offer of employment required her to serve a five-year probationary period before she would be eligible for tenured status. The university also required the worker to complete her PhD by Dec. 31, 2008 as a condition for tenure.
However, the worker was unable to complete her PhD by the end of 2008 because of illnesses to her PhD supervisor and her spouse, so TMU granted her a one-year extension. The deadline was extended a second time to Nov. 30, 2010 because of health issues in the worker’s family.
The worker went on sick leave in October 2010, which further delayed her PhD. TMU extended the deadline to July 31, 2012.
A worker’s behaviour that on its own would deserve lesser discipline warranted dismissal on a last-chance agreement, the Ontario Grievance Settlement Board said.
Condition for worker to meet
In the fall of 2011, the worker advised that her PhD defense was scheduled for the following March. TMU’s departmental appointment committee assessed her circumstances under the tenure provisions of the collective agreement for faculty and recommended that she be transferred to tenure on the condition that she complete her PhD.
However, the worker cancelled her PhD defense due to family health issues and went on sick leave in October 2012. She returned to work in September 2013.
TMU granted another extension of her probationary status with a deadline of Sept. 30, 2014, to defend her PhD. She didn’t do it and obtained a new PhD supervisor with the goal of defending her PhD by Jan. 31, 2016. She failed once again and TMU granted her an extension until Dec. 31, 2017. Two more extensions followed, with the last one being Dec. 31, 2018.
In 2018, it became apparent that the worker was not going to meet the latest deadline, so TMU and the worker entered into an agreement.
Last-chance agreements must be respected to provide an incentive for employers as an alternative to dismissal, an Ontario arbitrator said.
Last-chance agreement
The agreement referred to a decade of extensions and extended the worker’s probationary period to Dec. 31, 2019. TMU agreed to put her on 50 per cent reduced workload and pay while she worked on her PhD and no administrative duties. If she didn’t complete her PhD by June 30, 2019, she would be placed on unpaid leave with no responsibilities so she could focus on her PhD before the Dec. 31 deadline.
The agreement also said that if the worker became ill and went on sick leave, she would receive full salary for up to 66 days or Dec. 31. It stipulated that if the worker didn’t meet the deadline, her employment would end with six months’ pay in lieu of notice and she would agree not to raise “any internal and/or external appeal/complaint/grievance.
The agreement stated that it “does not preclude any further extensions,” but the worker agreed to not pursue in good faith “any issues contained in this agreement to any external agency, tribunal, and/or commission.” It was also agreed that an arbitrator or arbitration board would have no jurisdiction to hear a grievance arising from any issues contained in the agreement.
The worker did not complete her PhD by June 30, 2019, so TMU placed her on unpaid leave. On Oct. 23, she went on sick leave.
A worker with an addiction who relapsed but followed self-disclosure rules should not be dismissed under a last-chance agreement, an arbitrator ruled.
Worker alleged racism
On Dec. 13, the worker requested that TMU not proceed with termination of her employment, raising anti-Black racism in the department over the past three years that negatively affected her physical and mental health along with her academic productivity. She asked that the university “reset her employment clock to 2016 and return the time that [she had] lost.”
However, TMU responded that if she didn’t complete her PhD by Dec. 31, her employment would end as stipulated in the agreement. On that date, it terminated her employment and her sick benefits.
The worker filed a grievance alleging that TMU violated the collective agreement and the Ontario Human Rights Code when it terminated both her employment and her benefits. The union claimed that the worker suffered discrimination on the basis of race and colour from the issues in the department and on the basis of a mental disability that precluded her from working on her PhD.
TMU filed a motion to dismiss the grievance, arguing that the agreement prevented the worker from filing a grievance and the arbitrator from having jurisdiction over the matter.
The arbitrator noted that parties in the labour relations context are free to negotiate last-chance agreements that restrict the employee’s ability to challenge certain employer decisions and an arbitrator’s ability to review or vary those decisions. In this case, the worker didn’t meet the conditions set out in the agreement when she failed to complete her PhD by Dec. 31, 2019, said the arbitrator.
Last-chance agreements don’t automatically mean employers should proceed to dismissal without considering the circumstances, according to an employment lawyer.
Can’t contract out of statutory protections
However, the arbitrator also noted that it had been established that an arbitrator can consider allegations of discrimination under the code, even with an agreement limiting jurisdiction. Parties to an agreement are not entitled to contract out of statutory protections guaranteed by the code, said the arbitrator.
The arbitrator found that the worker raised allegations of discrimination and TMU raised the issue of accommodation over the past history through its extensions. In fact, the university referred to the agreement as the “final step” in its accommodation efforts. All of this pointed to the fact that there was a dispute over whether there had been a violation of the code, said the arbitrator.
The worker’s termination of employment and sick benefits was alleged to be discriminatory, so even though they were covered by the agreement, the arbitrator determined that he had jurisdiction to consider the grievance on its merits.
“[Human rights] allegations are properly before an arbitrator, and the existence of a last-chance agreement does not preclude a union from pursuing a determination as to their merits,” said the arbitrator.
TMU’s motion to dismiss the grievance was dismissed. See Toronto Metropolitan University v. Toronto Metropolitan Faculty Association, 2023 CarswellOnt 10979.
