HomeMy WebLinkAboutWalker 24-11-06IN THE MATTER OF AN ARBITRATION
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION LOCAL 242 (the Union)
AND
NIAGARA COLLEGE (the College)
Concerning the grievance of A. WALKER (the grievor) Grievance # 2024-0242-0001
Appearing for the Union: Breshna Durrani, Grievance Officer
Appearing the College: Jessica Toldo, Hicks Morley
Sole Arbitrator: Norm Jesin
Date of Hearing: November 5, 2024
Date of Decision: November 6, 2024
AWARD:
1. The grievance in this case alleges that the College improperly deducted 4.4 hours from
the grievor’s sick bank contrary to Articles 4, 6, 11.01 G 1 and any other relevant articles
of the collective agreement governing the parties. The facts giving rise to the grievance
are as follows:
2. The grievor is employed by the College as a full-time professor. On February 7, 2024 the
grievor was scheduled to attend a meeting with the Associate Dean (Beth Bracken) to
discuss his SWF form for the upcoming term. The SWF form sets out the workload that a
professor is assigned in a particular term and it is generally established by consultation
between the employee and College. At the time the grievor had been waiting for
information as to when he could obtain a medical appointment for a procedure that h e
had been waiting for.
3. On February 6, 2024, the grievor received notice that as a result of a cancellation, an
opening had arisen for his medical appointment the following day at 1 PM. The grievor
did not have any teaching responsibilities at that time. The only thing that he ha d on his
schedule at that time was the previously scheduled SWF meeting with Ms. Bracken. The
grievor then called Ms. Bracken to see if the meeting could be scheduled the next day.
Ms. Bracken agreed to reschedule the meeting the following day but informed the grievor
that as he was unable to attend on February 7, the College would be deducting a half day
of sick time from his bank. As a result, the grievance before me was filed. The grievor
claims that all of his assigned work was performed on February 7 and that the sick time
should not have been deducted from his bank.
4. Pursuant to Article 11.01 B 1 a full time teacher may be assigned up to 44 hours of work
per week without overtime. The factors that make up a full time workload include
teaching contact hours as well as attributed hours for evaluation, for preparation and for
complementary functions. Hours for each of those factors are assigned and are recorded
on a SWF. A SWF is created for each semester.
5. The teaching contact hours are generally set at scheduled times and cannot easily be
altered. However, it is generally up to the teacher when to perform the other functions
as long as deadlines are met. Indeed, Article 11.01 G 1 provides as follows:
Where preparation, evaluation, feedback to students and complementary
functions can be appropriately performed outside the College, scheduling shall be
at the discretion of the teacher, subject to the requirement to meet appropriate
deadlines established by the College.
6. It is the position of the Union that Article 11.01 G 1 should be interpreted to allow the
grievor to schedule the SWF meeting at his discretion, so long as it takes place within a
college set deadline. Counsel for the College however asserts that the scheduling of a SWF
meeting is not a matter contemplated by this provision as it is not a meeting that can be
held outside the College. Once the meeting was scheduled any alteration in the schedule
of the meeting to accommodate the grievor’s medical issues must result in the use of sick
time to accommodate the rescheduling of the meeting.
7. Counsel for College relied on the decision in Fanshawe College 2015 CarswellOnt 15115
Louisa M. Davie). In that case the arbitrator that sick pay under the Colleges collective
agreement is payable for an entire week of absence even though the grievor in that case
only had scheduled teaching hours on two days in that week.
8. Having heard the submission of the parties I find that I am unable to agree with the
submission of the College. A College Professor does not work according to a punch clock.
Attributed hours are performed at a time chosen at the Professor’s discretion so l ong as
the work is completed within any established deadlines or otherwise within a reasonable
timeframe. Of course, teaching must occur when it is scheduled and sick time will be
utilized when a teacher is unable to teach for medical reasons. However, no reason was
offered as to why the SWF meeting could not be rescheduled and indeed, it was
rescheduled within a day. The grievor completed all his attributed work required in on
the dates in question. In these circumstances I do not see any reason why the sick time
should have been deducted.
9. In my view the Fanshawe College case is not helpful. In this claim the grievor did not claim
or seek to use his allotted sick time to cover the time spent at his medical appointment.
Rather he chose to perfom his allotted work at other times that he determined within
applicable deadlines. The SWF meeting was held within sufficient time to prepare his SWF
for the applicable semester.
10. In light of the foregoing, the grievance is allowed. The College is directed to restore the
half day of sick time into the grievor’s bank.
11. I remain seized to deal with any difficulty in implementing this award.
Dated at Toronto, this 6th day of November 2024.
____________________
Norm Jesin, Sole Arbitrator