Employer Did Not Act Unreasonably in Abolishing Job

Notified after nearly two years of employment that his position was to be abolished, a welding instructor grieved. Abolishing his position at a point just short of the two-year mark and thus depriving him of his contractual rights with respect to recall rights and pension vesting was unreasonable in the circumstances, the union charged.

Hired by a polytechnical institute as a welding instructor in 2007, P.V. cleared probation in 2008. While there were no issues with respect to his performance, the precipitous downturn in the world economy beginning at the end of 2007 reduced the demand for welders, which in turn led to fewer welding students and ultimately reduced the government funding available for the institute’s welding department.

In matching the number of instructors needed for the anticipated number of welding apprentices with funding, the institute’s initial estimates for the 2009/10 year indicated that the institute needed to shed nine welding instructors. With some finessing, that number was reduced to five. P.V. was one of them.

Under the terms of the collective agreement, such terminations are carried out by “abolishing” the positions of the instructors who are ranked lowest using a process that ranks all instructors according to an assessment template that considers performance, versatility, education and work experience.

Reasonableness a requirement

The union accepted the institute’s right to abolish positions under the terms of the collective agreement; however, the union said, in these instances the employer was required to exercise its discretion according to a standard of reasonableness with respect to justification, transparency and intelligibility and balance the interests of both parties.

In this case the employer had failed to properly consider P.V.’s interests, the union said. If it had, it would have considered the negative implications of abolishing P.V.’s position just short of two years and perhaps provided him with the opportunity to work through the notice period. As it was, P.V.’s job was terminated before the course was finished. The fact that the students were disrupted and a new instructor was required to complete the remaining course modules didn’t add up to reasonableness, the union said.

The employer argued that without specific guidance in the collective agreement on how to carry out job abolitions, its only requirement was that it act in good faith and it had. The institute was under no obligation to facilitate a working notice period so that P.V. could attain pension and recall rights, the employer said. In this case, taking budgetary and staffing considerations into account, management determined that the best way to handle the abolitions was to announce them all at once in April before faculty dispersed for the summer and to give dismissed faculty a jump on job searches for the next year.

Management’s actions in this case did meet the test of reasonableness, the arbitrator said.

No evidence of bad faith

The institute’s actions in reducing its staff compliment was reasonable in light of constrained economic and budgetary circumstances. The process was reasonable and objective with no evidence of bad faith in the evaluation or the use of improper criteria, the arbitrator found.

While the timing of the abolitions was raised as an issue by the union, the arbitrator found that the decision with respect to timing was both considered and reasonable. “The evidence established that [the Dean] put his mind to the advantages and disadvantages of the alternative sets of dates and, after weighing various factors, chose the April dates … His explanation and rationale for the decision were intelligible and understandable.”

In addition to calculating the advantage of an earlier job search window for the exiting faculty, announcing all the abolitions on the same day in April avoided the necessity of making periodic announcements as courses ended and creating fear and uncertainty about “who might be next.” Moreover, once that date in April had been reasonably settled on, any questions about P.V. working to attain pension and recall rights were moot. Three months’ working notice from that date or pay in lieu would have come up short of the necessary two years’ service.

The grievance was dismissed.

Reference: SAIT Polytechnic and SAIT Academic Faculty Association. Allen Ponak — Chair; David Laird (Employer Nominee) and Terry Sway (Union Nominee). William Johnson for the Union and Barbara Johnston for the Employer. March 17, 2010. 18 pp.

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