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HomeMy WebLinkAboutEllis 13-03-12IN THE MATTER OF AN ARBITRATION (The Employer) M.] Ontario Public Service Employees Union (The Union) Grievance of B. Ellis For the Union: R. Blair, Counsel For the Employer: R. Filion, L. Chang MacLean, Counsel The hearing in this matter was held in Mississauga Ontario on May 3, November 1, 2011, January 29 and 30, 2013 Award 1. The grievance before me is dated May 4, 2010, and is filed on behalf of Ms. B. Ellis. The grievance arises from a claim for compensation for hours worked and alleges a violation of Article 15.02 of the Collective Agreement. There was no objection to my jurisdiction to hear and determine the grievance. 2. Ms. Ellis is employed by the Peel Board of Education as an Instructor in its English as a Second Language (ESL) program, a position that she has held for over fifteen years. She has been an employee of the Board for over twenty years. As a full-time Instructor at the relevant time, Ms. Ellis was assigned to the Brampton City South Plaza for four ten week sessions from September to June, Monday to Friday, with the morning class from 9 to 11:30 a.m. and the afternoon class from 12:30 to 3:00 p.m. There is a 15 minute paid break scheduled to commence at 10:30 in the morning and at 2:00 in the afternoon. There is an unpaid lunch between the morning and afternoon sessions. Ms. Ellis, like all other full- time Instructors in her circumstances, has consistently been paid for 25 hours of work per week, reflecting 5 hours for each day of the class sessions. 3. The grievance arises from claims for payment for four hours marking tests and for three hours for term plan preparation in the spring of 2010. 2 - There was no dispute that Ms. Ellis performed the work in question, and that she performed this work outside her regular full-time class hours. There was also no dispute that the Employer has never compensated an Instructor for such work outside of payment for class hours. The Employer's position is that it has met its obligation to Ms. Ellis for the performance of this work by paying her for her hours as a full-time Instructor. To express the Employer's position somewhat differently, it is that such duties, which may or may not be completed within class hours, are compensated by the payment Ms. Ellis and her colleagues receive for the hours of their daily class schedule. 4. The Employer adduced bargaining history in support of its position that any ambiguity in the language of the Collective Agreement ought to be resolved in its favour. The Union took the position that the language of the Collective Agreement is not ambiguous and thus that the extrinsic evidence should not be considered. It was the Union's further position that even if this evidence were considered, it did not support the interpretation of the Collective Agreement language that the Employer urged upon me. The Union also advanced a quantum meruit argument, submitting, in essence, that the implication of the wage provisions of the Collective Agreement in this context is that where value has been provided, compensation must be paid. The Employer submitted that the foregoing argument should not be considered on the basis that it had not 3 been outlined at the outset of the proceedings and that had it been aware that the Union was advancing that position it could have adduced evidence in support of an estoppel argument. In response to the foregoing, Mr. Blair referred to the particulars that he had provided in advance of the hearing, submitting that the Employer had been put on notice of the Union's position in this regard, and accordingly, this is an argument that is properly before me. 5. There was no real dispute regarding many of the relevant facts. I heard testimony from Ms. Ellis and from Ms..Samuel, who is an ESL supervisor and who formerly worked as an Instructor. The Board provides a skill based English as a Second language program, based on the Canadian Language Benchmark system for adults. This system prescribes achievement levels for speaking, listening, reading and writing from Levels 1 to 8, with Level 8 being the highest. This program is delivered in Bramalea, Brampton, Malton and Mississauga. Students are evaluated by Assessors, who are also covered by this Collective Agreement. In accordance with the results of the assessment, students are assigned to a particular class. There may be two levels within a class. The number of students in each class varies, but the average class size is about twenty students. In general, students advance to the next level after 20 weeks. M 6. In the past, in Brampton, term plans were for a 10 week term, however they have now been standardized with other locations and developed for 20 weeks, with each plan covering two 10 week sessions, consistent with expectations for student progression. Once the class commences, a needs assessment is conducted by the Instructor. With that information, the Instructor develops a term plan that addresses the particular needs of the class. The term plan sets out a time line, establishing themes in relation to which outcomes, language focus, and resources are co-related. A template is provided in the Staff Handbook. As well as providing an overview and guide for program delivery, these plans facilitate the work of Supply Instructors. 7. Ms. Ellis testified that the level of focus required to complete a term plan precludes its completion during class time. She acknowledged that there are some periods of quiet time when students are engaged in work on their own, however she testified that such periods are often interrupted with questions, and that even when students are engaged with each other in group work they benefit from observation and supervision. Accordingly, she has always prepared her term plan outside of classroom hours. She testified that there are always new resources available and that she has often spent time in the evenings researching suitable material for her classes. Ms. Samuel testified that from her experience and observation it is not necessary for the Instructor to 5 prepare term plans outside of the instructional hours. She testified that there are times when students are working on assignments that provide opportunities to work on a term plan. She also made reference to the ability of an Instructor to work on term plans during the paid breaks during instructional hours but acknowledged that although these breaks are not prescribed by the Collective Agreement, the Employer does not take issue with the ability of the Instructor to take a complete break from work during these periods. Ms. Samuels testified that completing a term plan for 20 weeks is actually less onerous than a plan for 10 weeks; however she acknowledged that she has not completed a 20 week plan herself. Ms. Samuel noted that Instructors generally teach the same benchmark levels over the years and that term plans that have been used in the past can be modified. She testified that it has taken her about two hours to complete a term plan, which she did using a computer. She also noted that if an Instructor required additional time to complete a term plan an extension could be provided. Ms. Samuel further noted that at a professional development day in February, 2010, there was a session on term planning that involved group work that could have been utilized in connection with an Instructor's individual plan or plans. However, she agreed that the work would have been focused on a plan at one particular level, which might not necessarily be of immediate assistance to an Instructor teaching at a different level. I 31 8. Testing for benchmark purposes in accordance with the Summative Assessment Manual (SAM) is completed close to the end of the 20 week period in order to determine the progression of students. For exceptional students there will be SAM testing close to the end of the 10 week period in order that these students can potentially progress early. Ms. Ellis testified that she obtains and selects appropriate SAM testing material outside of classroom hours and then administers and marks the tests. She testified that she is able to accomplish some marking during classroom hours but that certain aspects of the grading require concentration which is not conducive to marking during class time, where there may be interruptions. Ms. Ellis noted that accuracy is very important in these evaluations, in that in addition to allowing for advancement, success is a precondition to professional employment for students such as engineers. Accordingly, it is a matter that must be undertaken with considerable care. She noted as well that there is limited flexibility around the timing for providing examination results, given the need for results for registration for the next term. In addition to opportunities to mark the tests of one class while another class is writing their tests, Ms. Samuel testified that there may be opportunities to perform work during instruction time allocated to interview days, in the event that the time on those days is not fully utilized for interviews. Ms. Samuel testified that some Instructors complete their marking and term plans within their instructional time but that others perform it outside h their instructional time. In cross-examination Ms. Samuel agreed that opportunities to perform work during "down time" during instructional hours are unpredictable, depending on the requirements of the class. She also agreed that there was nothing inappropriate about an Instructor fully utilizing the interview days for the purpose for which they were intended. 9. Ms. Ellis testified that she performed a number of duties outside of her paid 25 hours of work per week outside of marking and preparing term plans. She noted that the Handbook requires that Instructors arrive on the first day of their teaching assignment with all materials required, including photocopies, which reflects the need for work performed in advance of classes commencing. She testified that she prepares for her classes outside of instructional hours and that in addition to instruction, she is required to perform duties such as ensuring the completion of attendance documents, completing Ontari6 Works forms, consulting with other teachers and photocopying. Ms. Ellis testified that in 2010 she faced responsibility of care for a family member as well as personal health concerns. She did not feel that she could complete a term plan during her paid hours and she no longer wished to devote unpaid hours to this task. There were exchanges between Ms. Ellis and members of management about the need to submit a plan, with the Employer consistently maintaining that she would have to submit a M comprehensive term plan. Her request that she be released from classroom duties to complete a term plan was not granted. In a memorandum dated March 7, 2010, Ms. Ellis outlined the duties that she performed outside of classroom hours in a summary of a meeting and referred to Article 15.02 of the Collective Agreement, stating: "This article appears to only be applied to Assessors yet teachers do fall under the same Collective Agreement. The article specifies that an employee shall be paid their regular rate of pay when required to work additional hours due to periods of heavy workload. The above noted duties, in my opinion, represent my period of heavy workload". Ms. Ellis ultimately completed a term plan outside of class hours. The Union claims that there should be entitlement to payment for three hours for completion of a 10 week plan and six hours for completion of a 20 week plan. 10. The claim for marking tests also arose in the spring of 2010. In an email dated March 31, 2010, Ms. Ellis outlined the benchmark tests that she administered and marked and referred to Article 15.02 of the Collective Agreement, emphasizing its reference to "heavy workload". Her email states that: "Management stipulates the timeline in which to test, mark and consult with other teachers on [Benchmarks], and interview dates with students. I spent an additional 4 hours of work marking 186 tests in order to meet your deadlines. As such, I am requesting, as per Article 15.02 of the Collective Agreement that I be paid for those E, additional 4 hours of work." Ms. Samuel testified that in her view, Ms. Ellis had conducted "a lot" of testing, however she agreed with Mr. Blair that such a determination of was properly a matter of judgement of the Instructor and that the extent of testing necessary can be affected by the requirements of a particular class. 11. The provision of the Collective Agreement directly in issue is contained in Article 15, which provides as follows: ARTICLE 15 - WORKING CONDITIONS 15.01 Lunch Period In accordance with the Employment Standards Act, an Employee must not work more than five (5) consecutive hours without getting a thirty (30) minute eating period free from assigned duties. The schedule of the lunch period shall be determined by the immediate supervisor. 15.02 Additional Hours When an Employee is required to work additional hours on a temporary basis in excess of their regularly scheduled working hours due to special projects, during periods of heavy workload and in cases of emergency, the Employee shall be paid at their regular rate of pay. An Employee shall not work these additional hours in the same assignment for more than twelve (12) consecutive working days. 15:03 Call-In Guidelines Any Part-time or Full-time Employee interested in working additional hours on a temporary basis in accordance with Article 15.02 or working as a Supply Employee will notify the Board in writing providing information regarding their qualifications, availability, class level and location. A list of those interested will be developed. This list will be called List A. Supply employees will be placed on List B. 10 When there are no Employees available from List A for additional hours on a temporary basis or a supply assignment, the Board will proceed to contact those Supply Employees on List B. The Board will endeavour to contact the Employees on List A in seniority order taking into consideration the following information: - the qualifications required for the job; - the availability of the employee and period of the assignment; - the level the employee is qualified and experienced to instruct; - the location preference of the employee. No Employee shall work more than forty-four hours in one week. These guidelines will commence effective March 2, 2009. 12. The Collective Agreement also contains a broad Management Rights clause in Article 4, wherein the right to determine work schedules is specifically reserved. Article 23 of the Collective Agreement prescribes the hourly rates for positions that it covers. 13. The essence of the Union's position is that Article 15.02 is designed to cover the very circumstances that have arisen here. In Mr. Blair's submission, the reference to a requirement to work and be compensated for additional hours during periods of heavy workload encompasses what were characterized as "peaks" associated with an Instructor preparing term plans and marking tests. These were, in Mr. Blair's submission, temporary periods where additional hours were required, and, accordingly, as prescribed by the language of that provision, should be 11 compensated on an hourly basis. There was, in his submission, no doubt that Ms. Ellis performed the work in issue, and whether or not others might have performed it during instructional hours, the professional judgement of Ms. Ellis in relation to her teaching responsibilities during those hours compelled her to perform those duties outside of instructional hours. The Employer took a fundamentally different view of Article 15.02, arguing that in its context it is clearly part of a scheduling provision, which, in conjunction with 15.03, is designed to compensate and allocate additional hours on a priority basis. Noting that the work of . an individual Instructor in relation to a term plan or marking could not be performed by someone else, Mr. Filion submitted that this provision was clearly not intended to apply to the circumstances here. In his submission, the Instructors are required to perform a body of work, a body that includes term plans and marking, and their compensation for that body of work is encompassed in the payment for their instructional hours. In his submission, there is nothing temporary about the work in issue here, but that rather, it is a permanent feature of the Instructor's responsibilities. It was emphasized that acceptance of the Union's position would entail a differential in payment for Instructors, depending on their own judgement and practices in relation to how and where the work was performed. Ms. MacLean argued that if the parties had intended to compensate Instructors in the circumstances of the grievor they would have utilized specific language to convey that intention and in 12 this regard referred me to Re Health Employers Assn. of British Columbia and Hospital Employees' Union Local 180 [1996] 54 L.A.C. (4ffi) 35 (Morrison) and Re Golden Giant Mine and United Steelworkers of America Local 9364, [2004] O.L.A.A. No. 600 (Marcotte). In the former award, in paragraph 45, the Board states: "... arbitration boards must be careful not to confer any additional monetary benefits to a Collective Agreement, unless the intention of both parties is clear and unambiguous". That proposition is cited with approval in the latter case. 14. The link between Article 15.02 and 15.03 is apparent not only because of the juxtaposition of these two clauses under a common heading. It is also apparent because of their common inclusion of the phrase "additional hours on a temporary basis" and, most significantly, the specific reference in 15.03 back to 15.02. 1 agree with the Employer that the proper analysis of these clauses, read in context, is that they establish priority entitlement to additional hours. These provisions cannot, as a practical matter, have application to the circumstances of an Instructor's ongoing permanent workload. In my view, if the parties had intended to confer the compensatory benefit that is claimed here, they would have expressed themselves explicitly in relation to this very important matter. Moreover, there is considerable force in the Employer's submission that the parties were unlikely to have intended that Instructors could be paid quite differently for the same instructional 13 program, depending on whether they performed the work outside instructional hours and the extent to which they devoted time to such work. While I found Mr. Blair's submission on the language to be imaginative, I did not find it to be persuasive. Accordingly, while I agree with the Union that the language of Article 15:02 is not ambiguous, that language cannot, in my view, encompass the interpretation that the Union urges upon me. 15. The principle of quantum meruit contemplates that where work is done and the benefit of the work is accepted, there is a presumption that the provider of the work will be paid. The concept is reviewed in Insurance Corp. of British Columbia and Canadian Office and Professional Employees' Union, Local 378, [2012] B.C.C.A.A.A. No 112 (Taylor), which Mr. Blair referred me to. Aside from any issue of notice to the Employer with respect to this argument, it is my view that this argument cannot succeed. There is no doubt that Ms. Ellis' work was of benefit to her students and hence to the Employer. However, to accept the Union's submission in these circumstances would be to provide a benefit that is inconsistent with the agreement that exists between the parties. I agree with Mr. Filion's submission that the contractual arrangement that is in place here is that Instructors are compensated for the performance of all of the tasks associated with the delivery of the program on the basis of payment for instructional hours. Any changes to 14 that arrangement can only be accomplished through the collective bargaining process. Accordingly, for the foregoing reasons, the grievance is dismissed. Dated at Toronto, Ontario, this 12th day of March, 2013 S.L. Stewart - Arbitrator 15