Accusation of bad faith not timely
The Ontario Public Service Employees’ Union (OPESEU) filed a grievance against George Brown College in Toronto following the termination of Anna Strever, and then expanded that grievance.
The union asserted Strever had passed her probationary period at the time of her dismissal and, as a result, her termination must be assessed with the just cause standard available to employees with seniority.
According to the union, the employer failed to account for Strever’s previous work, which should have reduced the probationary period from the usual 24 months to 22 months.
The union called for Strever to be reinstated as a full-time, past-probation employee and for the employer to be held liable for any loss of income or benefits.
On the first day of the hearing, the union asserted Strever’s termination was made for reasons that were arbitrary and in bad faith.
The union argued the employer’s assessments of Strever’s performance were inaccurate to the point of fabrication and unrelated to her actual performance.
The employer, however, argued the union cannot claim
Strever was terminated for reasons that were arbitrary or made in bad faith when the union failed to make such an accusation at any other point during the grievance process.
These accusations were not made, the college said, until almost 10 months after Strever’s termination.
According to the employer, the union’s allegations of arbitrariness or bad faith decision-making amounted to an expansion of the grievance.
The arbitration board — consisting of chair Mary Ellen Cummings, employer nominee Anne Burke and union nominee Pamela Munt-Madill — agreed the union’s submission of arbitrary or bad faith decision-making was an entirely different issue that required the calling of evidence and making of legal submissions.
The board concluded the union failed to inform the employer in a timely manner that it was challenging the honesty of the employer’s decision-making, amounting to an improper expansion of the grievance.
Following the board’s ruling, however, several preliminary issues remained unresolved.
Still to be addressed was the union’s submission that the employer failed to properly calculate Strever’s probation, and whether that submission was timely when it was included in the grievance respecting her termination or whether it should have been filed when Strever was hired and informed of her probationary period.
If the union’s grievance regarding the calculation of probation was timely, it is still to be determined whether the employer accurately calculated the probationary period or if it failed to take into account her previous, relevant work.
The arbitration board put forward that those questions would determine whether it is litigating the termination of a probationary employee or an employee with seniority.
The board suggested the union and employer discuss how to proceed and convene a conference call at a later date.
Reference: George Brown College and the Ontario Public Service Employees’ Union. Arbitration board — Mary Ellen Cummings (chair), Anne E. Burke (employer nominee), Pamela Munt-Madill (union nominee). Brenda Bowlby for the employer, Tom Tomassi for the union. July 8, 2015.