and – University of British Columbia (January 16, 2008

IN THE MATTER OF AN ARBITRATION PURSUANT TO THE
COMMERCIAL ARBITRATION ACT OF BRITISH COLUMBIA, R.S.B.C. 1996, c. 55
BETWEEN:
ASSOCIATION OF ADMINISTRATIVE AND PROFESSIONAL STAFF
ON BEHALF OF DONNA ASHICK
(Claimant)
AND:
LTNIVERSITY OF BRIT]SH COLUMBIA
(Respondent)
ARBITRATOR:
Christopher Sullivan
COUNSEL:
Leah Terai for
Claimant
Michael H. Korbin for
Respondent
DATES AND PLACE OF
DATE OF
3M4
AV/ARD:
HEARING:
November 8, 9 and 21,2001
at Vancouver, BC
January 16, 2008
The parties agree I have jurisdiction to hear and determine the matter in dispute.
The case involves a grievance filed by the Association of Administrative and Professional
Staff (AAPS), on behalf of Donna Ashick, who was discharged from her employment
a Health Safety and Environment (HSE)
as
Advisor, Level C2 in the University's HSE
Department on November 29,2005. Ms. Ashick was discharged without cause, "due to
lack of suitability", and her salary and benefits were continued by the University for
a
period of sixteen months expiring at the end of March 2007.
The discharge was precipitated by an email sent on November 23,2005 by Ms.
Ashick to coworkers containing adverse comments about management. The November
23 email also attached a previous email authored by Ms. Ashick that alleged the Director
of the HSE Department had lied to staff.
In its Statement of Cìaim, AAPS essentially asserts the University is restricted in
the circumstances in which it can discharge an employee without cause, and that it acted
improperly in terminating Ms. Ashick from employment. In its Statement of Defense, the
University basically takes the position it could have discharged Ms. Ashick either for
cause or without cause in accordance
with the parties' Agreement on Conditions and
Terms of Employment (ACTE).
The substance of the matter in dispute between the parties involves the
interpretation of Article 9.1.1 of the ACTE, which is the "General" provision for "without
cause" terminations from employment for regular employees. Article 9.1.1 reads:
The University recognizes that it has a responsibility to a regular employee
who suffers a loss of employment as a result of departmental
reorganization, budget cuts or the elimination of herihis position otherwise
for reasons other than cause.
At the outset of these proceedings
a
preliminary matter was raised regarding which
party should proceed first. The University argued AAPS should proceed first as the
matter is not governed by the Labour Relations Code, but rather the Commercial
Arbitration Act and the common law. AAPS essentially took the position the University
should proceed first as it was in the best position to explain why it terminated Ms.
Ashick. I ordered the University to proceed first.
The relevant circumstances surrounding Ms. Ashick's termination are not
seriously disputed and may be summarized as follows. She was hired by the University
on October
l,
1989 as a Chemical Safety Officer in the Department of Occupational
Health & Safety. From October 1998 to April 1999 she worked in the position of Acting
Environmental Safety Officer. From April 1999 Ms. Ashick held the position of
Chemical Safety Officer and, in April 2001, she became an Environmental Audit Officer,
until October 2005 departmental restructuring.
At the time of her discharge, Ms. Ashick's job title was HSE Advisor, Level C2,
and her work generally involved performing audits and assessing compliance
with
established protocols. She would generate reports and often perform follow-up duties.
By all accounts, including formal performance evaluations, Ms. Ashick was a very
good employee, technically sound and well-respected by her colleagues and management.
She had never previously received any discipline whatsoever.
The HSE Department comprises three separate sections, each with its own
manager reporting to Department Director, David Zajdlick. Ms. Ashick reported to HSE
Management Systems Manager, Ray Hryciuk.
4
The evidence indicates Mr. Zajdlick was hired by the University in January 2005,
and that he sought to make a number of changes to improve the efficiency and
effectiveness of the Department. Amongst other matters, he viewed the existing flex day
and fortnight scheduling system as inefficient, and he sought to change this.
A number of employees, including Ms. Ashick, very much favoured the fortnight
system, and it was in regards to how she believed Mr. Zajdlick was handling the matter
that she sent the emails that led to her termination.
On November23,2005 Ms. Ashick sent an email to AAPS representatives
Bernice Urbaniak and David Harvey regarding "organizational changes" in the HSE
Department. Ms. Ashick also copied the email to twelve AAPS members in the
Department. It was not, however, sent to any of the three senior managers in the
Department who also belonged to AAPS.
The November 23 email indicated Ms. Ashick held a concern about the way Mr.
Zajdllk, was dealing with the matter of flex days and the established fortnight system.
Ms. Ashick's email outlined her view "that management is trying to divide and conquer
and/or intimidate those who
will find it difficult to speak out."
The November 23 email sent by Ms. Ashick attached a string of other emails,
including one dated November 10, 2005 from Ms. Ashick to Ms. Urbaniak. In this email
Ms. Ashick accuses Mr. Zajdlik of having "lied" to Department staff, and inquires as to
whether the University is required to consult with staff about whether he should pass his
probationary period. In the email Ms. Ashick poses the question: "Would I be setting
myself up for problems if I sent
(I|v4r.
Zajdlick's "boss") any information?"
On November 25,2005,IÙ/4.r. Zajdlick became aware of the emails sent by Ms.
Ashick to the AAPS members in the Department who report to him. Soon thereafter Ms.
5
Ashick was terminated from her employment "due to lack of suitability". As noted
above, the University continued her salary and benefits for a sixteen-month period that
concluded at the end of March 2007
I|/4:r.
.
Zajdlick testified at these proceedings that he felt it was important to have the
support of Ms. Ashick as she was a senior and respected staff member in the Department.
Upon becoming aware of her emails, Mr. Zajdlick contacted the University's Human
Resources Department and spoke with Advisor Linda Penn about the matter. Mr.
Zajdlick was of the view that Ms. Ashick's emails contained defamatory and egregious
comments, and that she should be terminated. He expressed to Ms. Penn and Associate
Vice-President Human Resources Lisa Castle that either Ms. Ashick be discharged or he
would resign. He ultimately agreed with them that it would be appropriate to terminate
her without cause and continue her salary and benefits for the period set out in the
parties' ACTE for without cause ternrinations from employment.
Ms. Ashick testified on her own behalf. She stated that until just prior to the
commencement of these proceedings she was unaware of Mr. Zajdlik's actual directions
to her manager, Mr. Hryciuk, regarding how the fortnight issue was to be dealt with, and
that apparent contradictions in communications on this topic were due to Mr. Hryciuk's
correspondence to the staff in his particular section. Ms. Ashick acknowledged her
conclusions about Mr. Zajdlick's representations and conduct were erroneous.
At these proceedings Ms. Ashick apologized for having sent the emails and having
made the comments she did about Mr. Zajdlick. Ms. Ashick stated she copied the email
chain to her coworkers on November 23 by "mistake", and that she was "negligent" in
doing so.
Evidence was also led at these proceedings regarding the negotiation and practical
application of the relevant ACTE provisions, paficularly in relation to the matter of
6
without cause terminations from employment. Former Employee Relations Advisor
Margaret Ostrom was responsible for administering the University's policy that was
effective prior to the negotiation of the inaugural ACTE with AAPS in 1996. Ms.
Ostrom attended the 1996 bargaining sessions as a note taker for the University. Ms.
Ostrom testified the relevant policy in effect prior to the ACTE read as follows:
NOTICE ENTITLEMENTS
(M & P Staffon Appointments with no End-Dates)
General Policy Statement
The University recognizes that it has a responsibility to Management and
Professional staff who have given good job performance and who suffer a
loss of employment as a result of departmental reorganization or the
elimination of their positions for the reasons other than cause.
Ms. Ostrom stated this policy was interpreted to cover all types of without cause
terminations, including those for
"fit", or where there were
performance issues that had
not attained the level of just cause for termination.
During the parties' inaugural round of bargaining in 1996, AAPS initially made
the following proposal in regards to the matter of termination of employees:
8.3
Termination
8.3.1 General Policy Statement
The University recognizes that it has a responsibility to Management and
Professional staff who suffer a loss of employment as a result of
departmental reorganization or the elimination of their positions.
The University shall terminate the employment of non-probationary
members only in one of the following ways:
1
a.
b.
c.
d.
e.
f.
g.
h.
resignation;
retirement, early or otherwise;
dismissal for cause;
financial exigency or reorganization;
abandonment of position;
incapacity;
death;
or as provided elsewhere in this Agreement.
During this inaugural round of bargaining AAPS also proposed language that
would compel the University to reinstate staff members who had been found to have been
"unjustly terminated".
After some discussion between the parties AAPS amended its proposal on May
74, 1996 to read as follows:
Articlel0:
10.1
Termination
General
The University recognizes that it has a responsibility to Management and
Professional staff who suffer a loss of employment as a result of
departmental reorganization or the elimination of their position.
10.2
Types of Termination
The University may terminate the employment of non-probationary staff
members only in one of the following ways:
a.
As a form of discipline
i.
dismissal for cause
ii. abandonment of position
b.
For other reasons
i.
retirement, early or otherwise
ii. financial exigency or reorganization;
iii. incapacity;
iv. or as provided elsewhere in this Agreement
After discussion AAPS essentially resubmitted this same language during
a
bargaining session on June 24,7996.
On June 28 and July 5, 1996 the University submitted its language proposal,
which included the following:
Article
10
Termination of Employment Without Cause
I
Regular Employees
1.
General
The University recognizes that it has a responsibility to regular
Management and Professional staff who have given good job performance
and who suffer a loss of employment as a result of departmental
reorganization, financial exigency or the elimination of their positions
otherwise for reasons other than cause (, including performance or
disciplinary problems which do not constitute just cause). [typographical
error in original]
AAPS' July 8, 1996 counter-proposal ultimately became the agreed-upon
language. It read as follows:
The University recognizes that it has a responsibility to a regular employee
who suffers a loss of employment as a result of departmental
reorganization, financial exigency or the elimination of his/trer positions
otherwise for reasons other than cause.
It was also later resolved in bargaining that the "Remedy for Unjust Termination",
in circumstances where one had been terminated for cause, would not include
reinstatement but would rather be comprised of severance and, "may" include an order
for punitive damages from an arbitrator.
9
Associate Vice-President Human Resources Lisa Castle also gave evidence at
these proceedings. Ms. Castle was the University's chief spokesperson during 1999
bargaining with AAPS. She testified AAPS proposed to amend the without cause
termination provision by "finish(ing) (the) sentence at 'budget cuts'." In other words,
AAPS proposed removal of the term "or the elimination of herlhis position otherwise for
reasons other than cause." Further, AAPS proposed that the provision relating to
"Remedy for Unjust Termination" be amended to "include reinstatement as remedy".
Ms. Castle gave evidence to the effect that AAPS representatives at the bargaining
table articulated the position that the University should be limited to terminating
employees from employment without cause for budget cuts, genuine reorganizations and
the elimination of positions. Ms. Castle added the University rejected these proposals
and, in doing so, expressed to the AAPS bargaining committee that the University had
always exercised the right to terminate its management and professional staff without
cause for any reason, and
it was not prepared to back down from this position.
Ms. Castle recalled discussion at the bargaining table regarding Simon Fraser
University having a policy for its management and professional group that limited
without cause discharges. Within this context she essentially told the AAPS bargaining
committee this was not something the University of British Columbia was interested in.
AAPS later withdrew its proposals in regards to the matters relevant to this case, and this
was the last time a proposal regarding Article 9.1.1 was raised at the bargaining table.
Under cross-examination Ms. Castle remained steadfast in her view that AAPS
sought to change the existing language to limit the University's right to terminate without
cause. AAPS was not merely articulating a position to the effect that it disagreed with
how the University was interpreting the existing language. She pointed out there had
never been an allegation or a grievance about how the University was interpreting the
l0
language contained in Article 9.1.1. What AAPS sought was a language change to alter
the existing rights and it did not achieve this.
The University also led evidence regarding its practice in relation to without cause
terminations from employment. Eighteen termination letters issued by the University
between January 1998 and the fall of 2007 were entered as exhibits in these proceedings,
expressly indicating terminations for
and
fit or suitability. AAPS was copied on these letters
it has raised no grievance about the University's ability to terminate employees for
the stated reasons. In September 2OO7 the Chair of the AAPS Advocacy Committee was
involved in
a
decision to terminate an AAPS member due to "serious concerns about
(her) ability to
fulfill
(her) responsibilities".
RELEVANT PROVISIONS OF PARTIES' ACTE
During the course of these proceedings the parties made reference to the following
provisions from their current ACTE for the term July 1,2005 to June 30,2010:
Article I
Preliminary
1.2.2 Minimum Standards
The parties agree that employees are entitled, at a minimum, to the standard
set out in this Agreement. Individual agreements providing different terms
and conditions than in this Agreement shall be provided to AAPS prior to
being finalized.
Article
2
University Rights
All rights not specifically
addressed in this Agreement or the Framework
Agreement are reserved for the University- The University agrees to act
fairly, reasonably and without discrimination when exercising these rights.
Common law employment principles apply to the employment relationship
between the University and employees unless specifically modified by the
terms of this Agreement...
l1
Article
6
Evaluation
. ..It is clearly understood that during this process, the administrative head's
original evaluation of the employee remains in place for all purposes. It is
clearly understood that the performance evaluation process is separate and
distinct from any disciplinary process which may arise from the conduct or
performance of the employee.
Article
8.1
8
Discipline and Termination
Progressive Discipline
The University and AAPS subscribe to the principles of progressive
discipline in cases of culpable behaviour, conduct or performance
including, without limiting the generality of the foregoing:
Discipline is intended to be corrective in nature, not punitive;
Discipline is applied with consideration given to the circumstances
of a situation including, without limiting the generality of the
foregoing, the nature and severity of the misconduct, the position
and level of responsibility of the employee, the employee's work
history and any mitigating circumstances;
Discipline is applied in an escalating manner, appropriate to the
nature and severity of the misconduct; and
Discipline is not progressive in the event of severe misconduct
warranting termination for cause.
8.4
Disciplinary Procedures
Consistent with the principles articulated in Article 8.1, where disciplinary
action is being considered in cases of culpable behaviour, conduct or
performance, the University must notify the employee of the shortcoming
of her/his behaviour, conduct or performance by means of a written
warning....
8.6
Termination of Employment for Just Cause
The University may terminate the employment of any employee without
notice for just cause....
t2
8.6.2 Probationary Employees
The University may terminate probationary employees for just cause. They
may also be terminated for lack of suitability in a position.
8.8
Remedy for Unjust Termination
8.8.1 Severance
If it is found as a result of the grievance procedure that an employee has
been terminated without just cause, the employee shall receive severance
accordance with Article 9, but shall not be reinstated at the University.
in
In cases where the University is determined by an arbitrator to have
terminated an employee without just cause, the arbitrator may also award
punitive damages to the employee.
8.8.2 DischargeArbitration
Notwithstanding any other provision of this Agreement, the Arbitrator to
hear a discharge case shall be empowered to set, peremptorily, a date for
the commencement of the hearing which shall be within thirty (30) days of
the termination. The employee will remain entitled to full pay and benefits
until the decision of the Arbitrator is rendered, which shall be not later than
ten (10) working days following the hearing. However, if the employee is
discharged for assault, theft or gross misconduct, she/he shall cease work
immediately without pay or benefits.
Article
9.1
9
Termination of Employment Without Cause
Regular Employees
9.1.1 General
The University recognizes that it has a responsibility to a regular employee
who suffers a loss of employment as a result of departmental
reorganization, budget cuts or the elimination of her/his position otherwise
for reasons other than cause.
t3
9.1.7 Notice Entitlements
An employee who receives notice under this Article is deemed to have
received notice under the Employment Standards Act and common law.
Such notice includes severance or termination pay and vacation pay.
The University shall provide AAPS with a copy of the notice on the same
day that the notice is given to the employee.
Length of Notice
A regular employee who has successfully completed her/his probationary
period will be given a minimum of three (3) months notice and will
increase beyond three (3) years of continuous service at one month per year
of service and one week per quarter year of service (rounded to the nearest
quarter) to a maximum of twenty-four (24) months.
9.2
Term Employees
9.2.2 Termination of Employment During the Term
Upon completion of the probationary period, the employment contract may
be terminated without cause at any time during the term of employment by
the University.. .
9.3
ProbationaryEmployees
9.3.1 Notice or Pay in Lieu of Notice
An employee terminated during the probationary period for reasons other
than just cause shall receive notice or pay in lieu of notice in accordance
with the provisions of the Employment Standards Act.
In the event an employee who has successfully completed her/tris initial
probationary period and who is on probation as a result of promotion and/or
transfer is determined to be not suitable for continued employment in the
position, she/he will be entitled to notice of termination of employment in
accordance with Article 9.
14
SUMMARY OF PARTIES' POSITIONS
On behalf of the University, Mr. Korbin argues the University properly treated
Ms. Ashick under the terms of the ACTE. The University is entitled to terminate
employees "without cause" for any reason by paying the prescribed salary and benefit
continuance, and it is not restricted to the specific circumstances set out in Article 9.1.1.
The University's interpretation is consistent with Article 2 of the ACTE wherein the
parties have expressly made reference to the application of common law employment
principles to the relationship between the University and members of AAPS. Counsel
adds the qualified right to employment for
life effectively sought by AAPS is
exceptional, requiring clear supporting language that does not exist.
Mr. Korbin submits the clear language of the ACTE supports the University's
contention, as does the bargaining history and past practice. He adds an adverse
inference should be drawn against AAPS for not calling someone from the bargaining
table to dispute what the University witnesses testified to.
Mr. Korbin asserts the University could have discharged Ms. Ashick for just
cause. He states Ms. Ashick's November 23,2005 email constituted a "defamatory,
unfounded, and egregious" allegation that directly attacked Mr. Zajdlik's character,
credibility and authority in the worþlace. Ms. Ashick fundamentally breached her
employment obligations to the University, and demonstrated that she was no longer
suitable to be employed by the University. She irreparably breached her employment
relationship with the University by creating an untenable and disruptive work
environment. Mr. Korbin argues that by continuing Ms. Ashick's salary and benefits for
a period
of sixteen months beyond her discharge, the University has fulfilled its
obligations under the ACTE.
The University relies upon the following authorities: Wrongful Dismissal Practíce
Manual, Ellen E. Mole; Canadian Employment l-aw, Stacey Reginald Bal|' Randhawa v.
15
Pepsi Bottling Group (Canada) Co. August 10, 2001 (Ready), 2004 BCSC 1444, and
2006 BCCA273; Semchukv. Regina Bd. of Education (1986) 14 CCEL 223 (Sask. QB);
Vorvis v. Insurance Corporation of British Columbia
ll989l I S.C.R.
1085; WaIIace v.
United Grain Growers Ltd. |9971 3 S.C.R. 701; International Stmultaneous Translatíon
Service Ltd. and N.A.B.E.T. (1993) 35 L.A.C. (4'h) 55 (Taylor); Canadian National
Railway Co. and Rail Canada
Trffic
Controllers (1994),43L.A.C. (4'h) 13 (Frumkin);
Western Mines Ltd. and Canadian Association of Industrial, Mechanical and Allied
Workers, Local 19 (1981)
I L.A.C. (3d) 31 (McColl); Alltrans
Express and Office and
Technical Employees' Union, Local I5 (1991) 24 C.L.A.S. 4 (Chertkow); Vancouver
Symphony Orchestra and I.A.T.S.E., Local118 (1989) 16 C.L.A.S. 16 (Ready); Board
of
School Trustees of School Dístrict No. 5 (Southeast Kootenay) and Cranbrook District
Teachers' AssociationMay 20,7007 (Bruce); University of British Columbia v.
Association of Administratíve and Professional Staff August 16, 2005 (Lanyon), and
2007 BCSC 166, Health Employers Association of British Columbia and HEU [2002]
B.C.C.A.A.A. No. 130 (Gordon);The News Publishing Co. Ltd. tl996l B.C.C.A.A.A.
No. 104 (Korbin); Hospítal Employees' Union v. Hospiral Employees' Staff llnion Í2001)
B.C.C.A.A.A. No. 130 (Jackson); Míssion School District No. 75 v. Mission Teachers'
Union (Dray Grievønce) 12002) B.C.C.A.A.A. No. 364 (l{:nzie); and Fidler v. Sun Life
Assurance Co. of Canada2006 SCC 30.
On behalf of AAPS, Ms. Terai argues the University was not entitled to use the
"termination without cause" provision in the circumstances of this case. She points out
the nature of the ACTE is "that of a collective agreement", and asserts,
"it is within this
context that the agreement must be interpreted." The ACTE imports labour law
principles dealing with non-culpable and culpable conduct, which in turn limits the
University's discretionary rights at common law. Reading Article
9.1
.l
in a way that
allows the University to dismiss at its discretion would be inconsistent with Articles 6
and 8, relating to employee "Evaluation" and for cause "Discipline and Termination",
respectively.
t6
Ms. Terai states Article 9.1 .1 is clear and unambiguous on its face and that
extrinsic evidence is not useful in determining the parties' mutual intentions. She asserts
the provision only applies "where the employee suffers a loss of employment as a result
of: i) reorganization ii)
budget cuts or
iii) elimination of position
otherwise for reasons
other than cause." Counsel adds the interpretive principle, ejusdem generis, restricts the
meaning of the final category of the list to the same kind or class as the first two. The
final category, properly interpreted, therefore includes other "operational concepts" such
as "technological change or contracting
out", but not matters such as suitability or fit.
Ms. Terai contrasts the negotiated language of Article 9.1 .l with that contained in
Article 8-6.2regarding the termination of probationary employees, and Article 9.2.2in
relation to term employees. Article 8.6.2 expressly provides for the termination of
employees for just cause and "lack of suitability in a position", while Article 9.2.2 allows
for termination of the employment contract "without cause at any time during the term of
employment by the University." She emphasizes Article 9.1.1 contains no such broad
language upon which to base without cause discharges.
Ms. Terai points out that prior to Ms. Ashick's termination, the University had not
notified her of any shortcomings in her behaviour, conduct or performance by means of
a
written warning. Further, prior to November 29,2005 the University had not provided
Ms. Ashick with any adverse evaluation or feedback on her work performance as
required by Article 6 of the ACTE. Rather, prior evaluations praised her performance.
Counsel states that at all material times the University was aware that it did not
have grounds to terminate the Complainant for just cause, and it was aware it had not
complied with its obligations pursuant to the ACTE. She adds the appropriate remedy in
all of the circumstances is a declaration that Ms. Ashick's rights were violated, together
with an award for general and punitive damages.
l7
AAPS relies upon the following authorities: Water Street Pictures Ltd.
v.
Forefront Releasing Ltd.2O06 BCCA 459; Stratus Contracting Ltd. v. Abitibi
Consolidated (nc.2005 BCSC 109; Urton y. SR/ Homes Inc. 2O07 BCCA 372; Health
Services and Support
-
Facilities Subsector Bargaining Association v. British Columbia
2007 SCC 27; Chilliwack Rainbow Bingo v. National Automobile, Aerospace,
Transportation and GWU of Canada Local3000 (Stefonísryn Grievance) [2000]
B.C.C.A.A.A. No. 278; McKinley v. BC Tel et at 200 D.L.R. 14'h¡ 385; Mothersele v. Gulf
Canada Resources Ltd. 2003 ABQB 2; Baumgartner v. Jamieson 2004 BCSC 1540;
Stone v. SDS Kerr Beavers Dental, A Division of Sybron Canada Ltd.
[2ffi6] O.J. No.
2532, and 20O7 ONCA 543 (Ont. C.A.); Greenwood v, Chilliwack Christian School
Society Í19941B.C.J. No. 2852 (BCSC); Clark v. St. Margaret's School U9901 B.C.J.
No. 2735; Ditchburn v. Landis & Gyr Powers, Ltd.179951OJ No. 2882, and34 OR (3d)
578 (Ont. CÃ); Greenwood v. Ballard Power Systems Inc. 20O4 BCSC 266; Marlowe v.
Ashlànd Canada Inc.200l BCSC 954; Francis v. Canadian Imperial Bank of Commerce
21 O.R. (3d); Kaníewski v. Key Property Management (i,986) Inc.
M C.C.E.L.
136; and
Conrad v. Household Financial Corp (N.S.C.A.) Í19921N.S.J. No. 510, Consolidated
Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co.
[980] I
S.C.R. 888;
Island Telecom Inc. v. Prínce Edward Island (Regulatory and Appeals Commission)
ll999l P.E.I.J. No. 63; Dwyer v. Canada 2003 FCA 322: Telus Communications Inc.
Telecommunications Workers Uníon 2006 BCSC 22; Kokanee Mortage MIC Ltd.
Concord Appraisals Ltd.2000 BCSC
ll9l;
v.
v.
and R. v. Jackson 2005 BCCA 539.
DECISION
Having carefully considered all of the circumstances of this case, I conclude the
University acted properly in accordance with the terms of the ACTE in terminating Ms.
Ashick's employment and continuing her salary and benefits for an additional sixteen
months beyond her date of discharge.
18
Article 2 of the ACTE expressly provides for the application of common law
principles to the employment relationship between the University and members of AAPS
"unless specifically modified" elsewhere in the Agreement. The ACTE does not contain
such a specific modification to the University's fundamental common law right to
terminate a regular employee without cause for any reason upon the provision of
reasonable notice, or pay in lieu thereof.
To the contrary, Article 9.1.1 read on its own, and in the context of the whole
of
the ACTE, can reasonably be read as an expression of support for the established
common law right. The phrase "otherwise for reasons other than cause" at the end of the
provision can reasonably be interpreted as a "catch all", separate and distinct from the
specified reasons that precede
it. Alternatively,
the phrase can be interpreted to modify
the term "elimination of her/his position", and that this latter term equates with
termination from employment as it did pursuant to the University's policy that addressed
the matter for years prior to the first negotiated collective agreement between the parties.
Interpreting Article 9.1.1 in either of these ways is consistent with Article 8.8.1
and there being no right to reinstatement where the University has terminated an
employee from employment for cause but it is later found during the grievance procedure
or arbitration that the termination was without just cause. In such a case the terminated
employee would only be entitled to severance pursuant to Article 9, which Ms. Ashick
received and, perhaps, punitive damages from an arbitrator.
Alternatively, the phrase "elimination of her/his position otherwise for reasons
other than cause", as contained in Article 9.1 .1, can be interpreted as being limited to
operational-type without cause reasons like departmental reorganization or budget cuts.
In these types of circumstances
case where one is discharged
a
position is truly eliminated, something that is not the
for suitability. Such an interpretation appears reasonable,
particularly when contrasted with the without cause termination provisions relating to
t9
probationary and term employees contained in Articles 8.6.2 and 9.2.2, respectively.
This interpretation does, however, give rise to the question as to why the parties added
the words, "otherwise for reasons other than cause", at the end of the single sentence
provision, since
a
position is never eliminated for cause or for reasons other than cause.
ln Water Street Pictures Ltd. v. Forefront Releasing Inc., supra, the British
Columbia Court of Appeal had opportunity to comment on the proper utilization of
extrinsic evidence as an aid to the interpretation of a written instrument at common law.
The Court stated:
23
Recourse to extrinsic evidence to aid in the interpretation of an
agreement is the court's last resort. It is only when the intentions of the
parties cannot be objectively determined from the words they have chosen
to employ, such that there is ambiguity, that the law permits consideration
to be given to evidence of their conduct in making their agreement and in
fulfilling their obligations. If it were otherwise, the certainty that is
essential to documenting commercial transactions would be seriously
undermined. ...
24
Thus, the court looks first to the words of the agreement, read as a
whole, aided, if necessary, by evidence of the circumstances or what is
referred to as the factual matrix existing when the agreement was made.
Such evidence is generally restricted to circumstances known to both
parties that illuminate the meaning a reasonable person would give to the
words employed....
25
If, after undertaking the first step of the analysis, the text is
ambiguous, extrinsic evidence becomes admissible for the purpose of
resolving the ambiguity and determining what was actually agreed. But
there must be a true ambiguity before recourse can be had to evidence of
the way in which the parties conducted themselves. It is well recognized
that a court is not to search for ambiguity....
26
An ambiguity can be said to exist only where, on a fair reading of
the agreement as a whole, two reasonable interpretations emerge such that
it cannot be objectively said what agreement the parties made.. .. V/here
extrinsic evidence has been admitted, it has been to resolve an ambiguity in
20
what the parties in fact agreed as opposed to overcoming an uncertainty
about the ìegal consequences of the agreement they made.
These comments have application to the present proceedings. On its face and in
context, Article 9.1.1 is ambiguous and capable of more than one reasonable
interpretation "such that it cannot be objectively said what agreement the parties made"
in regards to without cause terminations for matters such as suitability. It is therefore
appropriate to consider extrinsic evidence to shed light on the precise intentions of the
parties.
The starting point for this particular inquiry is the University's general policy that
existed prior to the first ACTE in 1996, which applied to staff "who suffer a loss of
employment as a result of departmental reorganization or the elimination of their
positions for the reasons other than cause." The term "elimination of their positions for
the reasons other than cause" was interpreted as covering without cause terminations
from employment for any reason, including fit and suitability. Put another way, position
elimination was equated with termination from employment.
During 1996 collective bargaining AAPS proposed clear restrictions to the
University's common law rights that existed in relation to the termination of employees.
AAPS sought to have employees reinstated where it was determined that termination
from employment was unjust, and it clearly sought to limit the University's ability to
terminate employees without cause to certain specifically defined circumstances. The
University resisted these proposals and the language ultimately agreed upon closely
mirrors the previous policy in terms of its reference to departmental reorganizations and
the elimination of positions.
21
In bargaining in 1999, AAPS proposed to amend Article 9.1.1 by concluding the
article after the term "budget cuts". In other words, it sought to remove the "catch all"
phrase "or the elimination of her/his position otherwise for reasons other than cause."
Any doubt about the intent of AAPS' 1999 proposal is resolved by the discussion
at the bargaining table at that
time. On this point, University spokesperson Ms. Castle
gave uncontradicted evidence to the effect that she clearly conveyed the position that the
University had always exercised
a
right to terminate its management and professional
staff without cause for any reason by the payment of severance, and it was not prepared
to resile from this position. AAPS eventually withdrew its proposal on this matter, and
the provision has not been raised at bargaining since.
The exchange of proposals, bargaining table discussions, and final agreement in
1996 and 1999 shed light on the parties' respective positions and mutual intention.
Suffice it to observe AAPS has sought limiting and restrictive language, and the
University has refused. The existing agreed upon language maintains the "catch all"
language originally proposed by the University.
The evidence of past practice is consistent with the bargaining history in support
of
a
conclusion that Article 9.1.1 allows for the termination of employees from
employment without cause, for reasons of suitability. The provision has always been
interpreted in a manner consistent with an acknowledgement that the University has
retained its common law rights on this matter. A number of terminations for reasons of
suitability have occurred over the years, without any grievance, including one recent
notable example involving the Chair of AAPS' Advocacy Committee.
The extrinsic evidence sheds light on the proper interpretation of Article 9.1 .1, and
it clearly supports an interpretation consistent with the University having retained its right
to terminate employees from employment without cause for reasons such as suitability.
22
I conclude that the language
chosen by the parties to reflect their consensus,
viewed in the context of the bargaining history and past practice, supports a conclusion
that the University did not act improperly in terminating Ms. Ashick's employment.
Article 9.1.1 contemplates without cause terminations not based on operational-type
reasons such as departmental reorganizations or budget cuts, and
it is sufficiently broad to
include the circumstances of the present case relating to the University's assessment of
Ms. Ashick's suitability.
In arriving at this conclusion I am also not persuaded that the University was
obligated to have treated Ms. Ashick in accordance with Article 6 andlor 8, which are
provisions that pertain to evaluations and for cause terminations. Nothing express or
implied in the ACTE suggests the University must utilize these provisions prior to, or
as
opposed to, terminating without cause pursuant to Article 9 and paying severance.
There are no legitimate grounds upon which to conclude the University has acted
any way that would properly attract a remedial order of any kind, including an award for
punitive or other damages as sought by AAPS.
The grievance is dismissed.
It is so awarded.
Dated at the City of Vancouver in the Province of British Columbia this 16th day
of January 2008.
Christopher Sullivan