iN THE MATTER OF A POLICE RIGHTS ARBITRATION PURSUANT TO THE POLICE SER VICES A CT
B E T W E E N:
THE TORONTO POLICE ASSOCIATION (Hereinafter referred to as “the Association”)
-and-THE TORONTO POLICE SERVICES BOARD (Hereinafter referred to as “the Employer or Board”)
GRIEVANCE OF ASHA ANGELOPOULOS: (Hereafter “the Grievor”)
SOLE ARBITRATOR: Richard H. McLaren, C.Arb.
COUNSEL FOR THE ASSOCIATION: Jessica Kearsey
COUNSEL FOR THE BOARD: Jonathan Maier
A HEARING in RELATION to this MATTER WAS HELD at TORONTO, ONTARIO, 01126 SEPTEMBER 2012
PRELIMINARY AWARD
I. Asha Angelopoulos filled a job vacancy posted in September of 2010 in the Human Resources Command, Human Resources Management for a position of Fringe Benefits Administrator, Compensation & Benefits, a Class 6, 35 hours per week job. Consequently, she became a permanent probationary employee of the Board from January to October 2011.
2. On 10 June 2011, a tripartite agreement was entered into between the Board, the Association and Ms. Angelopoulos. The effect of that agreement was to extend the probationary period beyond the 6 months provided for by Article 17 of the Collective Agreement. The extension was for a four month period during which Ms. Angelopoulos would continue to work in the position of Class 6, Fringe Benefits Administrator. The relevant portions of the probationary employee extension agreement read as follows:
“Ashaben (Asha) Angelopolous (88305) was promoted to the position of Class 6, Fringe Benefits Administrator on January 4, 2011, subject to successful completion of a 6-month qualifying period. Asha Angelopolous has not met the acceptable standard ofperformance during her qualifying period. It is anticipated that an extension of her qualifying period will
assist the member in meeting performance standards. The parties, therefore, agree as follows:
1. The qualifying period for Asha Angelopolous will be extended beginning July 4, 2011, for a period offour (‘4,) months, during which time Asha Angelopolous shall continue to be paid the start rate for the position of Class 6, Fringe Benefits Administrator;
2. In the event Asha Angelopolous is unable to achieve the required level of performance to successfully complete her qualifi’ing periocl the qualifying period shall end. Asha Angelopolous will revert to her previous status and rank of
Class 4, Qualified Temporary C7erk, and will be considered for a position within her ran/c if available, for which she must meet the required skills and qualifications;
3. This agreement is without prejudice or precedent.”
3. On 21 October 2011 Asha Angelopoulos, the Grievor, filed a grievance which reads as follows:
“The Association and the above-noted member are hereby grieving the member recent termination. As remedy we are seeking 6,) reinstatement to the Fringe Benefits Administrator position (or such other job as the
parties may agree upon), without loss ofpay, benefits or seniority and (ii)
such further or other relief as we may advise.”
4. At the time of the arbitration hearing on 26 September 2012, neither party objected to my appointment to hear this case. There was no objection to my jurisdiction to hear and make a final and binding determination of the Grievance. The Employer raised a preliminary objection which is the subject matter of this award.
Arguments of the Parties (i) Police Services Board
5. The Employer asserts that the extension agreement precludes any reference in this proceeding to the initial probationary period from January to June 2011. It is submitted that the wording of the extension agreement stating “Asha Angelopolous has not met the acceptable standard ofperformance during her qualifying period” means that the initial period is no longer grievabi e.
6. It is submitted that the Grievor had not met the acceptable standard during the probationary period but the Employer did not act to discharge the employee. This fact is acknowledged by the above quotation from the extension agreement. Instead of a termination, the parties entered into the extension agreement providing for a further time period within which to assess performance. It is submitted that there are two principles to be applied to this matter both of which are supported by relevant case law.
7. First, parties’ agreements are enforced. Secondly, parties cannot reinvigorate old disputes. It is submitted that the Association is seeking to look behind the agreement and litigate what they could have grieved at the time of the agreement and chose not to do.
8. In support of its two principles the following cases were cited:
• Domtar Sonoco Containers (1992), 28 L.A.C. (4th) 11 (Thome) • DHL Express (Canada) Ltd. (2010), 101 C.L.A.S. 171 (Hinnegan) • Ault Foods Ltd. (1992), 24 L.A.C. (4th) 404 (McLaren)
• GDX Automotive (2003), 116 L.A.C. (4th) 265 (Surdykowski)
• Greyhound Lines of Canada Ltd. (1991), 22 L.A.C. (4t1) 291 (McFetridge) (ii) The Association
9. It is submitted that the Board is asserting by implication into the extension agreement, that the Association has forfeited the right to grieve. That proposition is not supportable on the
wording of the agreement. The Association had no right to grieve at the point of entering the agreement because the Employer had not discharged the employee.
10. In support of its position the Association cited the following authorities: • Dana Corp. (2006), 84 C.L.A.S. 213 (Shime)
• Probationary Employees, Canadian Labour Arbitration, Canada Law Books, 7:5000; 7:5010 and 7:5020
• Newfoundland Association of Public Employees (1994), 43 L.A.C.
( 4 th)
384 (Oakley)
• Sifto Canada Inc. (2001), O.L.A.A. No. 698 (McLaren) • Coast Mountain Bus Co. (2004), British Columbia (Moore)
DECISION
11. The Arbitrator issued an oral ruling at the hearing stating that the preliminary motion of the Board was rejected. The purpose of this Preliminary Award is to record the reasons for that decision by the Arbitrator.
12. Turning to the language of the appointment, it is required that to obtain her promotion the Grievor was subject to “... successful completion of a 6-month qualifying period”. This is a
requirement of the Collective Agreement. The purpose of the extension agreement was to “assist the member in meeting the performance standards.” In order for the Grievor to meet the performance standards required of her, the parties agreed that an extension to the qualifying period beyond six months would be of assistance. The Grievor, the Association and the Board all signed this tripartite extension agreement.
13. The parties’ extension agreement makes it clear and obvious that at the time of end of the qualifying period: “Asha Angelopoulos haLdj not met the acceptable standard of performance...” The Employer could have acted at that time and exercised its discharge rights
pursuant to Article 3.02. It chose not to take that course of action. Instead, the extension agreement was entered into.
14. There is no provision in the extension agreement removing the Grievor’s right to grieve over the initial six month period which was nearing its completion at the time of execution. However, as stated, the Employer did not exercise its right in accordance with Article 3.02. In reality therefore, there was nothing to grieve as the qualifying period was being extended. I do not read the phrase quoted earlier of failing to have met acceptable standards of performance as precluding reference to the work performance in the initial period, at the time of hearing this grievance following the extension period. The entire qualifying period from its commencement to the end of the extension is the work performance in the period I will assess and was the
the extension agreement precludes me from hearing any evidence regarding the work performance in the initial 6 months performance.
15. In reaching this decision, I draw a distinction between the cases cited by the Employer and the interpretation of this extension agreement. Cases that are last chance agreements, such as Dana Corp, supra or Dorntar, supra specifically express forfeiture of the right to grieve because the employer had at the time of the arrangement the right to discharge. In those cases, the employer had discharged their employee and a grievance had been taken by the union. Those parties subsequently acted to settle the matter by entering the last chance agreement. The last chance agreement is a tradeoff at the time of arbitration. The Union trades off the right to the grievance and the employer trades off the right to discharge. The interpretation of the last chance agreement can be arbitrated but there is a bar to reviewing the actions that led to the discharge.
16. The second principle of the Employer’s arguments is that old disputes cannot be reinvigorated. That proposition depends upon the interpretation of the extension agreement. Given the interpretation I have placed upon it, there is no reinvigoration of an old grievance or dispute.
17. For all of the foregoing reasons I reject the preliminary motion of the Board and it is dismissed. The case will proceed to the merits on the dates agreed to with the parties.
DATED at LONDON, ONTARIO THIS 9FH DAY OF OCTOBER 2012
Richard H. Arbitrator
