The Consequences of Non-Compliance: Arbitrator Affirms Mandatory Layoff Grievance Referral Requirements

A new arbitration award on academic layoff grievance referrals to arbitration confirms the Union’s obligations to comply with the layoff grievance and referral provisions of the collective agreement.

In this case, two Grievors submitted their grievances to the College without specifying “the positions occupied by full-time and non-full employees whom the employee claims entitled to displace” as required by 27.08 A and then both referred their grievances to arbitration without specifying “from the positions originally designated in 27.08 A, two full-time positions, or positions occupied by two or more partial-load or part-time employees (the sum of whose duties will form one full-time position), who shall thereafter be the subject matter of the grievance and arbitration” as required by 27.08 B.

In both cases, some days after the referral to arbitration the Grievors submitted lists of courses they claimed they were qualified to teach along with the names of less senior partial-load and part-time faculty members who taught those courses

The College argued that the provisions of 27.08 are mandatory and substantive provisions, that cannot be waived by the College. Therefore, a failure to comply with those provisions rendered the grievances inarbitrable. The actions of the Grievors after the fact did not cure the fatal flaws, and even if they did, the Grievors still did not comply with 27.08 A or B by failing to identify positions into which they could be placed.

The Union responded that the failure was procedural, not substantive. The Union also claimed that the College’s statement in the grievance responses that the College was “reserving its rights to raise jurisdictional objections” wasn’t relevant as the College took a ‘fresh step’ when it accepted the referrals without objection. Since the failure was procedural, the Union claimed, the College waived the right to rely on a breach when it took the “fresh step”. The Union also claimed the College wasn’t prejudiced by the Union’s failure to meet the mandatory requirements stipulated by 27.08. Finally, the Union alleged the rejection of a grievance for a technical defect violated the Colleges Collective Bargaining Act, 2008.

The Arbitrator reviewed the authorities and found that the case law has been clear and settled for years and accepted the College’s position. 27.08 A & B are mandatory and substantive provisions that are not subject to waiver nor cured by subsequent actions or particulars. A matter going to the jurisdiction of the arbitrator can only be waived expressly and cannot be waived through inadvertence or omission. In this case, not only was there no express agreement, but the College also reserved its rights to make preliminary arguments including those going to arbitrability and jurisdiction in their grievance response letters. Finally, the Arbitrator found that the defect in the grievances and arbitrations referrals was not a “defect of form or any technical irregularly” but rather was a fundamental question of jurisdiction.  

One other important point to mention is that the Union claimed that the grievances also raised alleged violations of Article 2, and were not subject to the requirements of 27.08 A & B. The Arbitrator rejected this argument entirely, finding that “[t]he Grievances are claims by the Grievors that they have been improperly laid off contrary to various provisions of the Collective Agreement, so they are clearly subject to the requirements set out in Article 27.08. That is not changed merely because one of the Articles in the Collective Agreement alleged to have been violated is Article 2.”

You can read the decision here: https://canlii.ca/t/kk4lj. Please reach out to us at CEC if you have any questions.