YUFA
Collective Agreement
2009-2012
Article 15
Dismissal for Cause
Definitions
15.01
“Dismissal” means the termination of an appointment by the Employer without the consent of the employee, before the end of the appointment period, and shall be only for adequate cause. Neither the non-renewal of a contractually limited appointment or a probationary appointment, nor the decision not to grant tenure/continuing appointment, nor lay-off for reason of financial necessity, nor the termination of an appointment for the purpose of retirement, constitutes dismissal.
15.02
“Adequate cause” for dismissal shall be predicated upon misdeeds that are grave and unusual and that directly render an employee unfit to discharge his or her professional responsibilities as defined by this Agreement. Such misdeeds shall not include conduct properly characterized as the exercise of freedom of speech, association, or belief, or non-conforming personal or social behaviour. “Non-conforming personal or social behaviour” shall not include failure to conform to the terms of this Agreement or to carry out the duties and responsibilities stipulated herein.
Adequate cause constituting unfitness shall include and be limited to:
- failure to discharge professional responsibilities as defined by this Agreement either through (i) incompetence, or (ii) persistent neglect, including persistent neglect of duty to students or scholarly/professional pursuits;
- gross misconduct leading to the significant and persistent abridgement of the academic freedom of other members of the University community;
- gross professional misconduct;
- gross misconduct constituting a direct and grave violation of the personal safety of another member or members of the University community.
15.04
Physical or emotional inability to carry out reasonable duties shall be treated separately from dismissal cases. A person so afflicted shall be granted a leave in some form, not normally to exceed four (4) years, at the end of which period the Employer may terminate the appointment if the employee does not return to his/her normal duties.
Procedures
15.05
The President shall initiate dismissal procedures by notifying the employee in writing to meet with him/her in the presence of the Dean of the employee’s Faculty or the University Librarian and the employee’s Chairperson (where applicable), no earlier than seven (7) days and no later than fourteen (14) days after such notification. Such notification shall include precise reference to all the pertinent information in this Agreement and in any other documents of the University relevant to charges germane to dismissal for cause. In this and in all further proceedings, the affected employee shall be permitted to be accompanied by an adviser of his/her choice. The Association shall also have the right to be present at such meetings and shall be given reasonable notice. An attempt shall be made at this initial meeting to resolve the matter in a manner satisfactory to all concerned.
15.06
If the employee fails to appear at the meeting provided for in clause 15.05, or if no satisfactory resolution is reached at the meeting, and if the President chooses to pursue the matter, the President shall inform the employee in writing of the charges against him/her, by internal receipted mail or by external registered mail with acknowledgement of receipt, no later than twenty-one (21) days after the meeting, in sufficient detail to allow the employee to prepare his/her defence.
Failure of the President to inform the employee of the charges against him/her within the designated time period shall result in the termination of the dismissal proceedings. If proceedings are terminated at this or subsequent stages of the procedures, the Employer shall not re-institute dismissal proceedings based upon the same specific misdeeds and circumstances.
15.07
If the employee wishes to contest his/her dismissal, he/she shall so indicate to the President in writing within fourteen (14) days of the receipt of the written charges. Failure of the employee to resign or to contest his/her dismissal within the designated time period shall result in the application of the special arbitration procedures provided for in clause 15.10 below.
15.08
Within fourteen (14) days after the employee has indicated in writing a wish to contest his/her dismissal, the President or designate and the employee or designate shall meet to name jointly an arbitration board comprising three (3) persons from outside York University, whose expenses shall be shared by the parties to this Agreement.
15.09
In the event that the President or designate and the employee or designate cannot agree upon the membership of the arbitration board, they shall each name one person to the board, and the two (2) persons so named shall select a third, who shall be the Chairperson of the board. All three (3) persons shall be from outside York University. Each of the members of the board shall be provided with a copy of this procedure upon appointment to the board.
15.10
In the event that an employee fails to comply with or take part in the provisions established in clauses 15.08 and 15.09, the arbitration board shall consist of a single arbitrator appointed from the arbitrators’ panel according to the procedures established for the selection of single arbitrators or chairpersons of arbitrations boards, as provided for in Article 9.
15.11
Having written to the employee informing him/her of the charges, the President may, by written notice for stated cause, relieve the employee of some or all of his/her University duties until the arbitration board has made its decision or until such earlier time as the President may deem appropriate. The stated cause must involve an immediate threat to the academic functioning of the University or to any member of the University. Salary and benefits shall continue throughout the period of such suspension.
15.12
The arbitration board shall convene as promptly as possible following its constitution, and shall attempt to conclude its proceedings and render its decision as expeditiously as possible. Subject to the provisions of the Ontario Labour Relations Act, the arbitration board shall have the right to establish its own procedures, and to require each party to make full disclosure of material facts and documents which the board deems relevant. In any event, the board shall:
- hold open hearings;
-
notify the President or designate,
the employee, and the Association of the time and place at which it
intends to hold its hearings;
- afford the President or designate and the employee the right to appear in person, with or without counsel or other adviser(s);
- require the employee and the President or designate each to indicate the nature of the allegations they intend to make, in order to enable the other a fair opportunity to make a full answer.
15.13
The board shall issue a written decision which contains its findings of fact, reasons, and conclusions as to whether there is adequacy of cause, and shall provide a copy to the employee, to the Association, and to the Employer, any of whom is at liberty to make the decision public. The decision of the board shall be final and binding on the employee and the Employer. In its award, the board shall declare:
- that cause adequate for dismissal has not been shown and that any suspension in effect be rescinded, and it may rule that no record of such suspension show in the employee’s personnel files; or
- that cause adequate for dismissal has been shown.
15.14
In the event that the board finds cause adequate for dismissal, and in the event that the board makes some ruling concerning the employee’s salary and pension, the board shall not rule continuation of the employee’s salary and the Employer’s contributions to his/her pension beyond a maximum of one (1) year from the date of the board’s decision. The board may make any additional recommendations that it deems just and equitable in the circumstances.
15.15
The Employer and the employee shall be responsible for the expenses of the member appointed to the arbitration board by the President or designate and the employee or designate, respectively. The Employer and the Association shall share equally the expenses of the Chairperson of the board.