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HomeMy WebLinkAboutBinette/Williamson 14-09-19IN THE MATTER OF THE COLLEGES COLLECTIVE BARGAINING ACT, R.S.O. 1990, CHAP 15 BETWEEN: AND: CAMBRIAN COLLEGE OF APPLIED ARTS AND TECHNOLOGY (THE COLLEGE) ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 655, (ACADEMIC STAFF) (THE UNION) AND IN THE MATTER OF THE GRIEVANCES OF JANETTE BINETTE AND JANE WILLIAMSON; GRIEVANCE #'S 2009-0655-0004 AND 2009-0655-0005 BOARD OF ARBITRATION: HOWARD D. BROWN, CHAIR SHERRIL MURRAY, UNION NOMINEE MARC PIQUETTE, COLLEGE NOMINEE APPEARANCES FOR THE COLLEGE: Timothy Liznick, Counsel Dan Draper, Dean APPEARANCES FOR THE UNION: Archana Mary Mathew, Grievance Officer Laura Johnson, Grievance Officer Jennifer Fehr, Grievance Officer Jane Williamson, Grievor Janette Binette, Grievor HEARINGS IN THIS MATTER WERE HELD AT SUDBURY AND AT OAKVILLE ON MARCH 3, JUNE 23, SEPTEMBER 8, DECEMBER 2, 2010; FEBRUARY 17, APRIL 15, NOVEMBER 22, 23, 2011; MARCH 29, AUGUST 22, 2012; AUGUST 20, OCTOBER 15, 2013 (EXECUTIVE MEETING) AWARD Each of the grievances filed in lune 2009 allege that the Grievors were unreasonably denied permission to work outside the College in breach of Article 11.06 of the collective agreement. Both Grievors are Professors employed in the Health Sciences Department of the College. Pursuant to a ban on working outside of the College which was imposed by the Dean on the BScN Faculty they were denied an exclusion from the ban. The Board directed and received written submissions of Counsel following the completion of the hearings which, along with the evidence at the hearings, been carefully considered by the Board at its executive session and consultations in the preparation of its award as set out herein. It is noted that a third grievance (Green) was submitted on the same issue but was settled by the parties and not dealt with except by reference relating to the issue of the ban. Article 11.06 is as follows: "During the period of assigned workload, teachers shall not take any employment, consulting or teaching activity outside the College except with the prior written consent of the supervisor. The consent of the supervisor shall not be unreasonably withheld." It is the position of the College that Dean Draper considered the facts known to him prior to May 20, 2009 resulting in his decision to withhold permission from the BScN Faculty to work outside of the College. His decision is entitled to the deference of the Board as a proper exercise of Management rights as set out in the collective agreement. Neither Grievor properly N or sufficiently engaged the Dean with a request for his consent to continue their employment outside the College during the period of the ban or in the alternative, they did not provide the Dean with additional personal facts to support consideration beyond those which he had considered. It is the Union's position that the College failed to engage in a genuine exercise of discretion in determining whether faculty members were permitted to work outside the College when the ban was announced and through the grievance procedure when an exemption of the ban for the Grievors was denied. Jane Williamson is a registered nurse by training and qualification and had worked at the Sudbury Hospital following her graduation in 1974 where she was a full-time employee until she started with the College as a Professor in the Nursing Department in January 2004. She continued as a part-time employee at the Hospital working on weekends, on both day and night shifts and during periods in the week when she was not at the College, mainly in the summer months. She said that she had not requested permission of the Dean to work at the Hospital at any time prior to the ban imposed by Dean Draper and said she only worked at that time on weekends and did not feel it was necessary to ask permission of the College as she was not in conflict with her work for the College. Her work at the hospital on weekends did not interfere with her College work. She referred to the College Conflict of Interest report of the Executive Committee of the College effective April 2006 in which it is set out that: 4 "An employee who wishes to engage in activities external to the College during assigned work hours or that in any way engages this policy must receive written permission from his or her supervisor. This may be granted only when in the opinion of the supervisor the activity will not interfere with the performance of the employee's duties or constitute a conflict of interest." She said that following that report she had not had further conversations with Dean Draper but said he knew that she worked at the Hospital on weekends and was not asked to complete the form attached to the College's report prior to the in service ban by the Dean. Ms. Williamson referred to the College evaluations of nurse applications and practical components which involved her teaching and said that she had never cancelled a class and that she attended the faculty meetings at least once a month and had not missed meetings because of her commitment at the Hospital which did not conflict with her teaching or committee duties at the College. It was her opinion that the impact of her Hospital work to her teaching responsibilities was an advantage because of the connections with staff and she was also involved the placement of students at the Hospital. As well, the duties at the Hospital kept her updated on recent policies and procedures at the Hospital, the knowledge of which she could take back to her College classes. She said that the College texts become outdated and do not reflect the rapid changing medical protocols and clinical work at the Hospital and that she could make that knowledge available to her classes at the College. She became aware of the imposed ban on outside work on May 20, 2009 prior to which she knew of issues of student complaints concerning infighting of faculty and with disputes among the staff who were not functioning as well as they should at the College. 5 Reference was made to the problems referred to the faculty by the Dean and in that regard to one student complaint that Faculty was not available to meet students at their offices and students were not prepared for tests. As well, some practice labs had been cancelled for the students so that prior to the ban a group of students were frustrated by delays. These problems were raised at a Faculty meeting following the composition of the ban by the Dean but that directive did not address the student problems or lead to improvements among the Faculty as it did not address the problems of the dysfunctional Faculty. She said that she did not ask for prior permission to work outside of the College either before or after the ban as she did not see the need for it as she did not have a conflict between her work for the College and at the Hospital, neither of which were adversely affected by her other work. By letter dated September 2, 2009 to Dean Draper from the Nursing Faculty set out the issues that they discussed and the: "disconnect between the perceptions of management and faculty. Faculty agrees that at times we have not resolved our conflicts in the most effective manner. We believe this is a symptom of our working environment." They did not feel that the working by Faculty outside of the College had anything to do with the students' dissatisfaction. There was no response to that letter which was received prior to the ban being put in place. At a meeting of faculty with the Dean, the Grievor had not expressed that she wanted to continue to work at the Hospital but had discussed that work which helped N. her work at the College. As well, she stopped working at the Hospital in September as she would normally have done. The Grievor referred to a Faculty meeting dated January 15, 2010 attended by the Grievors with other faculty members and said that she would have attended these meetings even if she had been working at the Hospital at the time and said by that the difficulties of the Faculty had by then improved but she had not raised the question of lifting the ban for her at that time. She was told on April 30th that she could return to her hospital work following which she had a tour involving the many changes in the Hospital since she had been there and had to catch up with those changes with orientation as a Casual Nurse. The Grievor said in cross examination that after the ban was announced by the Dean, she had not asked for permission to work outside of the College prior to filing her grievance and did not tell the Dean that she only worked on weekends at the Hospital or about personal procedures in contacts with the students at the College or any other personal circumstances. She also said that prior to May 2009, she had not sought consent to work at the Hospital from the College and that work she performed at the Hospital did not interfere with her College job. Further, neither before or after May of that year, did she approach Dean Draper to obtain consent to work outside the College at the Hospital and to be excused from the operation of the ban. She said that he was aware of her work outside of the College based on verbal discussions of the work at the Hospital but not the specific dates of her work. Before filing the grievance, she had talked to Ms. Binette who had also filed a grievance but not specifically 7 talked with the Dean however, she said that she was advised that she would not be allowed to work in the Hospital. She knew that Ms. Green was upset by the ban and felt that he should be able to continue her work at the Hospital but the Grievor did not know what happened at her meeting with Management. She was aware that the College would not restrict outside activities of the faculty after April 29, 2010 and it was on May 20`h when she sought permission to work outside the College and agreed that prior to filing her grievance on lune 12, 2009, she had not asked the Dean to permit her to work outside of the College nor had she advised him that she only worked at the Hospital on weekends. She said that when the ban was put in place, she felt she had to abide by that direction and not work because of the ban. She knew that no concession would be made by Management who intended the ban enable to work for changes on the prior practices within the Faculty. She felt that it would not be of any benefit to them to approach Dean Draper because they had been told that they were not allowed to work outside the College. Janet Binette, qualified as an RN in 1971 and subsequently worked in the Hospital full- time, until her transfer to part-time in 1976 to give her more flexibility. She sometimes worked more hours than a full-time nurse. She became employed at the College in 1985, part-time in the Nursing Department and set out her evidence the specific courses and other responsibilities that she took on including the duties of Co-ordinator in 2006 along with her teaching duties. She said that the acting Dean at the time was aware that she also worked at the Hospital and had talked about it but was not concerned that she was working outside of the College at the Hospital. In addition, she is a Union Steward and a member of some College committees. She said that when the School is in session, she worked at the Hospital in the evenings or on night shifts and also on weekends but that work never interfered with her teaching. Prior to May 2009, the College knew that she worked at the Hospital and nothing had been said about that work. She had told Dean Draper of her work on weekends at the Hospital and that he did not say anything about her work. She also worked one or two nights on evening shifts at the Hospital but her primary work was at the College and she was able to juggle her schedule so that she was able to work nights and still teach and perform the work of the College the next day. She scheduled meetings with students at her office and never had cancelled a class at the College, as well, attended faculty meetings and other such functions which did not interfere with her regular work. She could change a shift at the Hospital if necessary for attending a meeting at the College and had not missed any faculty meetings as a result of that outside work. The Grievor said that Dean Draper did not tell her about student complaints that she was not available for them or any complaints from the staff nor that there was any concern relating to her teaching qualities. The Grievor maintained that her work at the Hospital kept her current with changes in Health Services which she brought back to the College students of matters which were not in their texts as well as the information she acquired in the clinical setting of the Hospital. She also was involved in the arrangement of placements of graduates in the hospital following their graduation. The Grievor attended a meeting held on May 20, 2009 by Dean Draper to discuss the complaints of faculty and students in the BScN Program including the infighting of faculty and the lower student satisfaction surveys due to negative comments in the previous years. The staff were told that the issues arose as a result of conflicts among the Faculty and led at that time, to a decrease of the student numbers. There were complaints that classes had been cancelled by Faculty and that Faculty had not timely returned assessments back to the students. The result of that meeting among other actions taken, was that Faculty would not be allowed to work outside of the College for two semesters and would be required to be more engaged in the contents of the College courses. She said there were comments at that meeting from the Members about the personal financial impact of the ban as well as the advantages of Hospital contacts. She said that she had not heard any complaints about not being available for students and was not aware of such complaints about Faculty members or specifically concerning her performance at the College. The Grievor said that she should have been allowed to continue to work at the Hospital and had after the ban was imposed asked Dean Draper if she could continue to work outside the College when she had met him to discuss the ban order. His answer was that the rule applied to all Faculty and she could not work outside the College for two semesters as a result of the ban. There were no performance concerns of interest at that time and she responded to the Dean that she worked evenings and nights during the week and on weekends at the Hospital and that she could not accept the ban and would grieve. 10 Ms. Binette said that Faculty felt that the ban imposed by the Dean was unfair and had not been discussed with them before it was implemented and was not the best course of action because there had been no collaboration with the Faculty but issues had been addressed with individual members involved and a consultant brought in to review the situation. The Grievor said that by the end of November when another faculty member had requested a leave of absence, she had asked the Dean again for permission to work in the Hospital during the ban but was told it was for all Faculty and was continuing. She said that in the spring of 2010, the ban was lifted and she returned to her work at the Hospital and to the same position which she had before the ban but a few hours less work than before the ban. Reference was made to a conflict of interest document which the Grievor signed in April 2006 indicating that she requested permission to try the private work in the Hospital at Sudbury — Emergency Department with an indefinite time to end that employment. This application was signed by the Dean and reference was made in that regard to the statement in the application: "I am satisfied that the requestor's proposed activity does not interfere with the performance of the requestor's College duties and does not constitute a conflict of interest as broadly defined in the policy. I therefore grant the request for permission sought until..." The Grievor agreed that this form did not indicate whether she worked weekdays or weekends and that the Dean would not verify when she was working at the Hospital. The Grievor said that she worked 120 hours every two weeks at the Hospital and also averaged about 12 hours a day at the College and claimed that this schedule did not tire her and her work 11 record is such that she could do both College work and the Hospital work without concern of her duties at the College. The Grievor said that after the ban was imposed, she sought permission to work outside the College at the Hospital and listed on the document when she intended to work at the Hospital mostly on weekends and evenings as she had been doing prior to the ban. She said that the Dean had not said anything to her about the number of hours she was working outside the College and that there were no concerns with those hours of work as to her work for the College. Jane Williamson also said her Hospital work gave her knowledge of new protocols which she could bring to her classes. She was available to students at her office and her test results were not delayed. The Grievor also referred to the Faculty infighting and complaints prior to the ban but which she said did not lead to improvements in the department. She had not advised the Dean of the hours she worked at the Hospital during the week and confirmed that she had not requested permission to work outside the College at any time. Dan Draper is the Dean of Health Sciences and Emergency Service School which position he held at the time of this hearing four years prior to which he had been an administrator in the Hospital facility and his career has been involved with healthcare. His responsibilities as Dean involve ensuring that the College remains on budget, staffing issues, acts as program and special projects advisor. He is involved with student complaints and fielding student grade appeals. He has about 32 full-time faculty and 80-100 part-time Faculty on the site. In the BScN program, there are eight to eleven faculty full-time and about 30 part- 12 time faculty, two of whom are based in the Hospital supervising student placements. He said the chief issues leading to his imposition of the ban of Faculty working outside the College were the multi -focal issues with faculty problems along with discord of infighting amongst the Faculty which involved student problems, all of which were not good for the nursing program and which staff had brought to his attention. There were some complaints by faculty of others working outside of the College on days and nights while working as well at the College which were brought to his attention by the President of the College. He said the Hospital is a strong supporter of the College and was concerned with these internal problems and battles amongst the Faculty, impacting relations with the Hospital. As well, he learned that students had been transferring to another College to escape the conflicts of the Faculty which was a concern. As well, he said that some of the Faculty took their concerns to the Union as there was an impact generally hurting the nursing program at the College. Dean Draper referred to the statistical reports indicating student dissatisfaction of the Nursing faculty which was shown to staff when he told them that they would not be allowed to work outside the College for two semesters and implemented the ban. He said he wanted to create a solution going forward to restore respect to the program and to the Faculty so as to stop the infighting within the faculty and the harassment of emails all of which is set out in the minutes of the nursing meeting on May 20, 2009. He said the ban was not the only solution but it dealt with an undermining problem concerning the Faculty. 13 Laura Green who did file a grievance but which was subsequently withdrawn as a result of its resolution was hostile and unhappy with the ban as she needed work outside of the College and requested an exception to the ban. The Dean considered her request and scheduled a meeting at which they discussed her request to lift the ban for her which he considered along with complaints about her ability to be available to students which was carried forward to the clinical Hospital students who felt that they were at risk academically. He did not lift the ban for her and subsequently, Ms. Green applied for an unpaid leave of absence which was approved for the school year. Dean Draper said he had respect for the Faculty but the environment at the school was hostile and not functioning within the Faculty to which he responded by imposing the ban of working outside the College to build the team again and to give consideration of working with the concerns of Faculty when some of them work outside the College and concluded a two-year moratorium was justified as some Faculty staff worked outside at the Hospital and some did not which was not beneficial to the efficiency of staff and had a negative effect within the Faculty. He decided this measure would have Faculty be more accessible to deal with the complaints of the students as well as Faculty concerns. He referred to the issues within the Nursing Faculty in a memo to the Faculty in general concerning the May 20`h meeting and issues which arose, the first of which referred to the ban placed on working outside the College for fall and winter semesters, i.e. from September 8 to December 22 and from January 6 to April 29 in accordance with Article 11.06. He stated in that report: 14 "I firmly believe that foregoing outside activities, the added focus on learning and the learning environment will affect a positive impact for the program. It will also help to re-establish a more positive working relationship between colleagues and the students who count on them to be available for help and mentoring..." Dean Draper said that he discussed the ban with Ms. Binette at a meeting in June 2009 and his reconsideration did not lift the ban for her and said that the Grievor had not communicated her personal difficulties but had discussed only generalities about the effects of the ban and she had not asked at that time that she be exempted from its application. He understood that the Grievor attended this meeting as a Union steward to report the disagreements of the Faculty with the ban and whether he was willing to rescind and if not, a grievance would be filed. She had not brought to his attention any personal individual factors affected by the ban as had Ms. Green. He said that if she had communicated her personal reasons which were referred at this hearing, he would have considered them but reached the same resolution as he had with Ms. Green. He had not lifted the ban for any Faculty. He agreed that in general, he knew that the Grievor worked at the Hospital in addition to her College duties but she had not told him any specifics of her activities as to how much time and when she worked outside of the College and did not become aware of that information until this hearing. Further, he said that he did not know that Ms. Williamson had worked at the Hospital outside of the College when the directive was issued and only became aware of her work when her name appeared on the grievance. She did not request permission to work outside the College prior to her grievance and had not communicated to him the facts of her 15 work outside the College before her grievance was filed. He said that following the ban in place, he had substantially less student complaints about the Faculty and there was less infighting and the other issues had been addressed on an individual basis. Dean Draper testified that he had not asked the Faculty in general if they had worked outside the Hospital and if so, how much time was involved or the financial impact if they could not work outside the College. Those factors had not been considered when he put the ban in place but said the work of some Faculty outside the College was a point of contention. He knew that Ms. Binette was working outside the College but not the specifics of her schedule and had not taken any action to prevent her from working outside the College prior to the ban by trying to reduce the number of hours that she had been working at the Hospital as he did not have any knowledge of that factor. He was not concerned with the Grievor's work within her SWIF which she followed and had no concerns about that aspect. He said the ban was not imposed against any person particularly, but was generally applied to the Faculty. The Grievors had not worked outside the College during the course of the ban. He said that he expected Faculty to respect the ban and had not said that he would reconsider individual concerns about the ban as a cumulative approach would have brought a variety of responses and create more problems within the Faculty. The submission of the Union concerning the application of Article 11.06 in relation to the grievances set out above, referred to the issues of whether the College properly exercised its discretion to impose the ban; whether the College properly exercised its discretion in 16 denying the Grievors` right to work outside of the College and whether the College had acted reasonably in the implementation of the ban. Article 11.06 provides that the consent shall "not be unreasonably withheld". To deny the right to work outside the College was improperly applied with regard to both Grievors as it was a rigid rule affecting all Faculty involved and failed in doing so to consider the individual circumstances of the Grievors. Ms. Williamson testified that her work at the College came first and that she had not neglected her SWIF duties and that the College was aware that she worked outside the College at the Hospital prior to the ban and had not received any complaints or concern about her College responsibilities as a faculty member. It was clear that the Faculty had difficulties and disputes amongst themselves and had not functioned well as a team. At the meeting with Faculty on May 20, 2009, the Dean did not, when imposing the ban, refer that a request for permission to work outside the College during the ban could be made by Faculty members and that such exceptions would be considered. Ms. Williamson had not made a request to work outside the College after the ban because she understood that she had only been told by that ban that she could not and there was no indication that her situation would be reconsidered after the ban was imposed. The ban was lifted in April 2010 at the end of which period the Grievors returned to their work at the Hospital in addition to continuing their duties at the College as they had before the ban was in place. Reference was made to the situation of Ms. Binette who grieved concerning the ban applied to her work outside the Hospital which she said was well known by the Dean and that it 17 had never interfered with her work at the College and had no problems with that work but which was a priority for her. She had not been told that her work outside the College was a problem or any complaints concerning her availability for her work as required by the College and had told the Dean at the meeting after the ban was in place that she worked in evenings, nights and weekends at the Hospital. She did not request her exception from the ban after it had been put in place but asserted through her evidence that it should not have been applied to her and if so, she would have continued working at the Hospital. It was submitted that the Dean had imposed the ban before all faculty as then they would be more available for their College duties if they were not working outside the College, however he did not know how many of the Faculty had worked outside the College and did not consider the financial or other possible effects on individual Faculty members as a result of the ban which was rigidly imposed and unreasonably applied without any exceptions or considerations of exceptions for the Faculty involved. It was submitted that the Dean did not exercise his discretion reasonably in denying the Grievors permission to work outside of the College during the ban and had not considered all the relevant facts. Neither of the Grievors was advised that their work outside the College affected their work as a Faculty Member and there was no indication of a workload problem. It was argued that he had not considered the individual circumstances of the Grievors in his decision to deny their requests to work outside the College during the term of the ban. It is clear that the Grievors were known prior to the ban to have worked outside the College at the 18 Sudbury Hospital. No further application was made after the ban was imposed as the decision of the Dean as he stated applied to all faculty without exception and therefore a personal request for exemption from the ban as made by the Grievors as not accepted. Reference was made to the following: Re Ottawa Cit v. Ottawa Professional Firefip,hters Assn. [2005] O.L.A.A. No. 285 (R. Brown, May 31, 2005); Re Ministry of Transportation and Communications and OPSEU (April 9, 1985, Verity)• Re Ontario Science Centre and OPSEU (W. Kaplan, September 8, 1995): Re Toronto District School Boardy. and Canadian Union of Public Employees, Local 4400 [2007] O.L.A.A. No. 521 (October 25, 2007, Knopf); Re Metropolitan Toronto v. C.U.P.E., Metropolitan Toronto Civic Employees' Union, Local 43 [1990] 74 O.R.(2d)239; Re OPSEU and Fanhawe College (unreported April 15, 2003, Mitchnick); RE OPSEU and Fanshawe College (unreported MacDowell, September 3, 1992); Re Loyalist College and OPSEU 9 L.A.C.(41h)166 (Kruger)and Re Brown and Beatty para. 7.3010. The Union submitted that the College did not exercise its discretion when it decided to implement the ban outright and reasonably failed to exercise its discretion properly in disallowing the Grievors to work outside the College. There was no indication that the Dean during the term of the implementation of the ban indicated that faculty could seek personal exemptions but rather the ban was applied as a rigid rule which is a violation of Article 11.06. 19 it is further the submission of the Union that Article 11.06 provides a discretion to the College to determine whether faculty members are permitted to work outside of the College and must exercise that discretion which in its position, the College failed to do, when it announced the ban and when Ms. Binette's request to be exempted from the ban was denied. In assessing the decision of the College to impose the ban, it further submitted that it must be made in good faith and without discrimination and not to adhere to a rigid policy. It was stated that the Union accepted that the decision of the College was made in good faith but submitted that the Dean did not consider the individual merits of the Grievor's requests for relief from the ban. The Dean did not relate the problems in the Faculty and work of the Grievors outside of the College at the Hospital and that neither Grievor was a source of the problems within the Faculty. It was submitted therefore that all the relevant facts concerning the Grievors were not considered by the Dean and that his decision to deny an exemption to the ban for them was not objectively reasonable. The Grievors' work in the Sudbury Hospital was known by the Dean before the ban but with regard to the problems in the Faculty and to disputes concerning gossiping, infighting, insufficient resources and high workloads, none of those concerns were attributed to the Grievors. Reference was made to the evidence of lane Williamson that she had never missed a meeting with students because of her commitments outside the College or late submitting her marks to students. Further it was submitted that she was never advised about problems of her work at the Hospital as well as for the College prior to the ban by the Dean or had there been complaints from the staff of her lack of availability. The Grievor 20 referred a result from not continuing her work at the Hospital that she did not feel as competent as a teacher because she was prevented from knowing the current trends of diagnostic procedures and protocols in the Hospital which she could discuss with the students. Ms. Williamson in her evidence said that she had not requested reconsideration of the ban after it was announced as a final decision had been made by the Dean. Ms. Binette however, met with the Dean following the May 20th meeting with the Faculty confirmed by Dean Draper on June 4th at which the Grievor requested permission to continue working at the Hospital. She did not feel her work at the Hospital interfered with her work at the College and had identified the benefits of such work but the Dean told her at that time, that he would not make any exceptions to the ban. No problems were raised with her at that meeting by the Dean as to her work at the College and she had explained that her work at the Hospital was in evenings, nights, during the week and on weekends but her request was denied because it was applied by the Dean to all Faculty. It was further submitted that the College did not meet the procedural test required in establishing a rigid adherence to the ban of outside work for all faculty working outside the College and had not considered the individual merits of the Grievors who were known to have worked outside the College and were not the source of the problems of the Faculty and not all the relevant facts had been considered by the Dean in this decision which was not objectively reasonable. Therefore, the College failed to exercise its discretion and in any event failed to meet its obligation to engage a proper and genuine exercise of discretion. The College had not 21 shown that the Dean had considered the Grievors' specific and personal reasons for working outside the College in reaching this decision and failed to therefore exercise discretion as required of the College. Both Grievors obeyed the ban but disagreed with it and filed the grievances which were their appropriate course of action by which they indicated their disagreement with the ban. Their interest was to be allowed to work outside the College at the Hospital as they had done before the ban was in place. The Dean however, rigidly adhered to the rule of the ban which he put in place and had not indicated any willingness to exercise discretion in the individual grievances and had not acted properly in denying the claims of the Grievors. The College had failed to consider the merits of the individual applications of the Grievors and had applied a rigid policy and failed to exercise its discretion and thereby violated the terms of Article 11.06 of the collective agreement. As a remedy, the Union submitted that the Board should declare a breach of the collective agreement by the College and award compensation to the Grievors in the amounts that they would have earned through their outside employment at the Hospital during the period of the ban. It is the submission for the College that there is a fatal flaw with regard to the grievances on the basis that neither Grievor obtained at any time prior written consent of the Dean to continue to work at the Sudbury Hospital outside of the College as required in Article 11.06. It follows therefore that it cannot be held that the Grievors' consent was unreasonably denied by the College. Ms. Binette did not tell the Dean of any individual factors of her work at 22 the Hospital for consideration of the Dean in his evidence and neither she nor Ms. Williamson complied with Article 11.06 to require the Dean's discretion in answering the Grievors' requests for an exemption after the ban. The Dean therefore acted within the functions of Management set out in Article 6.01 of the collective agreement to direct and control operations of the Nursing Faculty in the best interests of the College. That general right of Management applies to the circumstances under Article 11.06 when there is a request to work by Faculty outside the College prior to accepting such outside work which the Grievors had not done as required under Article 11.06. Ms. 6inette met with the Dean on June 4, 2009 when she asked for the lifting of the restriction to work outside the College and indicated only that she had previously worked at the Hospital during the evenings and nights and weekdays and weekends. She was told that the ban applied to all Faculty and her request was denied. The Dean's response in his evidence was that had the Grievors communicated the various reasons for their work outside the College, as stated at the hearing, he would have acted in the same manner as with Ms. Green and considered those factors and concerns and responded accordingly. The Dean testified that from general knowledge he was lead to believe that the Grievors had been working at the Hospital but did not know the details of the extent of their work outside the College. When the Dean determined not to allow any Faculty to work outside the College in consulting or teaching employment for two semesters, no prior requests from Faculty had been made to him for such consent to perform that work. Therefore, it is the 23 College's position that the Dean was not restricted from exercising his Management's right pursuant to Article 6 to direct and control the College's operations. It was further submitted that had permission to work outside the College been made by a Faculty member, while the Dean could not unreasonably deny such requests, he could reasonably have done so which is the extent of the restriction of Management's rights under the collective agreement. Further, the College considered its business needs with regard to those of the Faculty who worked outside their College duties in concluding that its business interest was foremost. The Dean did not act in bad faith or act unreasonably in denying any exemptions of outside work from the ban imposed by him. The denial to the Grievors of consent to work outside the College was made in good faith and based on the relevant factors concerning the control of the Faculty. The evidence indicated there were student concerns with various faculty members whose internal disputes continued and he had given relevant consideration to these problems to correct the unacceptable conditions which lead him to the imposition of the ban for two semesters. The Dean acted reasonably in this matter and it was submitted therefore that the evidence of Dean Draper should be accepted as he had valid reasons for denying consent to the Grievors of an exemption to the ban for an exception to the application of the ban which he had imposed and which he applied to all Nursing Faculty. The following decisions were submitted and referred in the College's submission: Re Fanshawe College and OPSEU (April 15, 2003, Mitchnick); Re Domtar Inc. v. Communications, Energy and Pa erworkers Union of Canada Local 34 [2004] O.L.A.A. No. 898) (Roach); Re 24 Fanshawe College and OPSEU (April 30, 2004, H.D. Brown); Re Fanshawe College v. OPSEU (2006) O.L.A.A. No. 143 (O'Neil); Re Fanshawe College and OPSEU (unreported, March 8, 2007, MacDowell); Re Centennial College v. OPSEU (unreported, June 13, 2008, MacDowell); Be Loyalist College and OPSEU (unreported), (September 16, 1996, H.D. Brown); Re Young and The Crown of Ontario Minist of Community and Social Services 24 L.A.C.(2d)14S (Swinton); Be Firestone Steel Products of Canada and U.A.W. Local 27 Unit 7 6 L.A.C.(2d)18 (Weatherill). There can be no doubt on the evidence of the parties that there were various disputes and difficulties in the concerns and conflicts arising within the Nursing Faculty at the College which were not controlled prior to May 20th when the ban was put in place. The Dean had been involved in his considerations of these problems and to alleviate and correct the staff concerns, all of which had been shown to have had a negative effect on the students' satisfaction at the College. Similarly, the Faculty themselves could not or had not developed or applied reasonable efforts to contain their internal dissatisfaction and disputes to deal with these concerns of Management. That was the general background of facts which the Dean had been considering and lead to his decision as to the corrective measure to control the unacceptable conditions within the Faculty which had been shown to detrimentally affect the reputation of the College. The Dean determined that these concerns had to be addressed in the context of his responsibilities to get administrative control of the Faculty and within the College, the academic operations relevant to the student body. Those concerns fall within Management's functions 25 set out in Article 6 of the collective agreement with reference to directing its personnel in the control of its operations as required. We find that in the circumstances facing the Dean and in the background of the difficulties within the Nursing Faculty, the imposition of the ban of working outside the College by Faculty was not in itself unreasonable as it was supported by the Dean's finding that the internal problems in the Nursing School were adversely affected by Faculty members' internal conflicts, some of which concerned the negative effects of those of the Faculty who worked outside the College as well as student complaints concerning their accessibility to staff. The Union submitted that the College was improperly applying a rigid rule with regard to the Grievors' requests for exemption from the ban but on the wording of Article 11.06, an avenue for an employee to apply for an exemption of the effect of the ban has been set out in very clear terms that such directive may be removed in individual cases with prior supervisory consent in writing "which shall not be unreasonably withheld". That provides the manner by which this provision of the collective agreement may be applied to individual circumstances and therefore is not formed in rigidity of application but has provided a method for relief by an individual Faculty member. We find therefore, that in the circumstances of the grievances, the issue is not the unreasonableness of Article 11.06 in the collective agreement but whether the Grievors were unreasonably denied consent to work outside the College following the imposition of the ban by the Dean. It is apparent on the Grievors' evidence that because they had been working 26 outside the College at the Hospital for some period while being also employed by the College and asserted that fact was known by Supervision prior to the ban, they assumed that they did not require prior written consent of the Dean to continue their extra work outside the College. Ms. Binette subsequently applied for consent but it is clear that upon discussing her situation with the Dean, she explained that she had only worked at the Hospital on evenings and weekends. Even if her request to be exempted from the effect of the ban and had been timely under Article 11.06, we cannot hold on the evidence that the Dean was unreasonable in denying consent to the Grievor on the basis of lack of the Grievor providing sufficient personal information in detail to provide a meaningful basis for the Dean to consider her request to be excused from the effect of the ban. In addition, there is sufficient background in the evidence to support the Dean's evidence that he thought the Grievor was representing the Faculty at this meeting and did not attend in her personal employment capacity. Nonetheless, an exception to the ban was denied to the Grievor who had not in accordance with Article 11.06 advised the Dean of her personal circumstances related to her working arrangements at the Hospital or at her meeting with the Dean after the ban took effect. In the light of the Dean's concerns with the difficulties within the Faculty and the effect on the students in the Nursing Program, of which he had been made aware, the imposition of the ban and its strict application we find, was not unreasonably applied by Dean Draper. It was also the evidence that had the Grievors provided personal reasons to support a request to be 27 exempted from the ban, such as he had with the grievance of Ms. Green, who referred him to her personal adverse financial effect from the ban, that he would have considered the Grievors' applications but which information he did not receive and thereupon had advised the Grievors that the ban applied to all Faculty. Nonetheless, we do not find that Article 11.06 was imposed as a rigid rule applied by the Dean without exception in the two semester periods of the ban because provision was made for individual applications for exceptions to its application which could be applied by Supervision which would "not be unreasonably withheld". The ban in place affecting the Nursing Faculty must be examined on the basis of the reasonableness of the application of the ban upon rejection of consent to a Faculty member who applied for an exemption whose request is qualified by the individual information of an applicant concerning as here, the extent and working arrangements they held with the Hospital so that the Dean in this case, would have had a reasoned basis for his consideration of an exemption for the Grievors. As neither Grievor met the precondition for an application of consideration pursuant to the Article 11.06 exemption, we find that Dean Draper having considered relevant factors available to him had acted reasonably in denying relief to the Grievors from the application of the ban. The requirement under the clear terms of Article 11.06 is for prior consent of Supervision to an applicant which cannot be overlooked in the application of the ban. The Dean imposed a reasonable form of operational control at the School of Health Services to deal with the factual concerns of which he had become aware as a result applied the ban. We find 28 that Dean Draper had acted in accordance with the terms of the collective agreement in the formation and application of the ban. The limiting of the Grievors' work to the College only was within his responsibilities pertaining to the Management of the Faculty at the School and in accord with the terms of Article 11.06. Even had the Dean some prior knowledge or had assumed that the Grievors had worked outside the College at the Hospital, their obligation to apply for leave so arose upon the collective agreement coming into effect in July 2006 and subsequently, when both Grievors were working at the Hospital outside of their College duties. As a result of the specific clause in the collective agreement in this regard they were required to obtain prior written consent to do so quite apart from any negative effect they had from the implementation of the ban on May 20, 2009. Having regard to all the evidence, we find that the implementation of the ban by Dean Draper was not done in bad faith or without reasonable cause but rather within the acknowledged responsibility of Management to direct and control its operations in accordance with Article 6.01. We find that in the implementation of the ban for the reasons stated by the Dean fall within that general exclusive functions of the College set out in that Article, the terms of which were applied in the circumstances of the expressed difficulties within the Nursing Faculty which clearly had a negative effect both within and outside of the College as to its reputation concerning the Nursing Program. That concern became obvious to Management when the Faculty conflicts were affecting the satisfaction of the students in the program 29 involving in some cases, transfers elsewhere and reduction in admission to the College, all of which were part of the practical concerns of Dean Draper and applicable to his application of the ban within the Faculty. His decision to impose the ban was made in the circumstances where the integrity of the Nursing Program was an important factor to the College administration and the Dean who was, at the time, considering the multifocal problems which he considered were worsened by Faculty working outside of the College as well as their continuing internal battles and disputes. His concerns to re-establish a more positive working relationship with the students and amongst the faculty as discussed during the May 201h meeting, his decision that the temporary restriction on work outside the College would strengthen faculty relationship and students were based on factual circumstances from and on which he relied in the imposition of the ban and were reasonably applied. It is clear on the evidence that both Grievors did not apply for consent of supervision in a timely manner and in accordance with Article 11.06 and were therefore not entitled to carry on with their admitted work at the Hospital outside of the College for the period of the ban, no matter how valuable both professionally and financially such outside work was of benefit to them and to others. The Grievors had taken and continued extra employment outside the College without concern of the terms of Article 11.06 as alleged which therefore they had ignored to their detriment. In concluding the issues in these grievances as above set out, the Board also has had reference to the decisions set out above by the parties and without delving in length with these 30 references, we note however that the Board referred in Re Fanshawe College (Mitchnick) to the United Parcel Service and Teamsters Union award, 29 L.A.C.(2d)203 where Arbitrator Burkett stated: "...there can be little doubt that a company is required to exercise its discretion under a collective agreement in a manner that is reasonable and fair. However, in coming to this conclusion we are mindful of the difficulty inherent in applying such a test. Is an arbitrator to sit back and assess management's decision-making in the light of some subjective concept of reasonableness or fairness? The result would be to substitute the arbitrator's judgment of that of management in the areas where the parties have decided given the certain broad parameters, that management's judgment should govern..." As well, it is stated in that: "...requiring that the test of reasonableness must be determined in light of objective standard such an assessment made against the requirement to act for business reasons and when that is found, it follows that the employer met the objective test and reasonableness in the application of the collective agreement." 31 Having regard to the evidence and the submissions of the parties and for the foregoing reasons, the Board finds that the Union did not establish a violation of the collective agreement as alleged in the grievances. It is therefore the Board's decision that each grievance is denied. DATED AT OAKVILLE THIS 19TH DAY OF SEPTEMBER, 2014. HOWARD D. BROWN, CHAIR M SHERRIL MURRAY, UNION NOMINEE MA C PIQUETTE, COLLEGE NOMINEE 1 Dissent With all due respect, this member declines to join the majority. There is absolutely no doubt that Dean Draper knew the grievors opposed the ban on May 20, 2009, thus meeting their obligation to make it known they wished to work outside of the college. Under the terms of Article 11.06 the employer is required to provide written consent. There is no similar obligation for the grievors to apply in writing, only to ask the employer for their consent and "The consent of the Supervisor shall not be unreasonably withheld". (Art.11.06) Article 11:06 also states "During the period of assigned workload....." Neither grievor worked at the hospital during the 44 hour week and schedule to which they were assigned at the college. They both worked only evenings, week -ends and holidays outside of their college assigned hours and as such had never asked for consent. They had both been employed at the hospital when Dan Draper became their Dean and he was aware they worked outside the college and had never suggested to them that they required his consent. As the majority notes on page 5/6 of this award Ms. Williamson did discuss with Dean Draper the benefits of working at the hospital at the faculty meeting. Additionally, Ms. Binette had previously signed a statement of interest to work at the hospital with no specified date of termination in April 2006. After first declining that he met with Steward Janet Binette, Dean Draper recalled he met with her in June. If he failed to understand that some faculty still wished to work outside the college after the meeting of May 20, 2009, it was certainly clarified by Ms. Binette who asked on behalf of the members that the ban be lifted. 2 Ms. Binette was clear in her recollection. She attended that meeting in her role as representative of the affected faculty which obviously included Ms. Williamson and herself. She advanced a number of reasons why she and others should be exempt from the ban in order that they may work at the hospital during the next term. She testified that Dean Draper's response to her request was that the rule applied to all faculty. Dean Draper did not dispute that he said that. Dean Draper and Ms. Binette agreed that she had advised the Dean that if faculty was unable to work outside the College, grievances would be filed, which is indeed precisely what happened. Clearly, Dean Draper was aware the grievors objected to the ban and wanted to work at the hospital. The majority finds that the ban was within management's rights to retain administrative control, however Article 6 is fettered by the provisions of 11.06. In my view the ability of an individual to work outside the College is subject to bona fide consideration and that consent will not be unreasonably denied. It was the college's position that the Dean considered the facts as he knew them prior to the announcement of the ban (as set out on pages 11 and 12) none of which were ever attributed to either grievor. Dean Draper had never received a complaint about either of the grievors. Neither had canceled classes nor failed to attend staff meetings or accused of any of the other concerns alleged by Dean Draper. He knew restriction from outside employment would result in financial loss, even if he was unaware of actual figures. He knew that Ms. Green would experience financial hardship and needed to work outside the college but that request was denied. He testified that he has been "working 3 within the health care system all his career and Dean for four years". With that kind of exposure, it is reasonable to conclude he had knowledge of the benefits to staff and the college in terms of protocols, policies, changing technologies and their impact on the grievors and program. Indeed, Dean Draper testified that even if Ms. Binette had communicated her personal reasons which were referred to at this hearing, he said " I would have considered them but reached the same resolution" as he had with Ms. Green. This statement from the Dean again exposes the college's rigid position...... no exceptions to the ban under any circumstances, offering hollow meaning to the term "consideration". If the Dean had concerns that outside employment may interfere with whatever plan he put forward to deal with Department events, he need only have placed that requirement on an individual as a condition to outside employment as envisioned by the employer's own policy. If the relationship with the hospital itself was a significant problem that too could have been addressed with the individuals perceived to be at fault. In short, there were no exceptions to this rule and whether articulated by the grievors or not, it made no difference. The application of a ban on all faculty was in fact a rigid policy, something which the vast majority of case law in this area soundly rejects. In summary, both grievors made Dean Draper aware of their desire to work outside the hospital, both were unreasonably denied the opportunity. Under no circumstance was Dean Draper prepared to exempt them from the ban despite knowing neither one were responsible for the difficulties in the program, nor that the ban would resolve the departmental problems. 4 The majority finds that the grievors did not explicitly ask for consent to work at the hospital. This member finds that they did in fact request consent and that consent was unreasonably denied. In the alternative, it is clear in that there was no doubt Dean Draper was completely aware the grievors wished to have the ban withdrawn and the majority makes a finding on the basis of a distinction without a difference. On the basis of the fore -going, the grievances should have been upheld and the college responsible for lost income and damages. All of which is respectfully submitted, Sherril Murray, Union Nominee