HomeMy WebLinkAboutKuzyk 15-03-30IN THE MATTER OF A WORKLOAD ARBITRATION
BETWEEN
ONTARIO PUBLIC SERVICE EMPLOYEES UNION LOCAL 732 (the Union)
AND
COFEDERATION COLLEGE (the College)
RE: WORKLOAD COMPLAINT OF PETER KUZYK (the Complainant)
Appearing for the Union: Peter Kuzyk and Bert Dube
Appearing for the College: Wallace Kenny, Hicks Morley
Sole Arbitrator: Norm Jesin
Hearing held: March 23, 2015
AWARD:
In this case the complainant seeks payment of punitive damages as well as a further
penalty for the Union for the College’s failure to provide a SWF more than six weeks prior to the
commencement of a teaching assignment as required by the collective agreement. The College
responds by asserting that it never made the assignment in question and therefore no SWF was
not required. The College adds that in any event, no punitive damages or penalty is payable.
The facts giving rise to the dispute are as follows:
The complainant was assigned his regular teaching assignments in the fall of 2013 as
well as the winter/spring semester in 2014. He was provided SWF’s for those assignments in
accordance with the collective agreement. The duration of those assignments was 31 weeks, or
less than the 36 week teaching year established by the collective agreement. Since 2010, the
complainant was given a one week field assignment in course CE 208 together with two other
employees, after completion of their regular assignments in the spring semester. Those one
week assignments had been noted on timely SWF forms in prior years in accordance with the
collective agreement. As those assignments fell within the academic year, no additional
compensation was payable for those assignments.
By April 14, 2014, the complainant had not received any indication that he would be
receiving a field assignment in course CE 208 in 2014. On April 15, 2014, Riley Burton, the new
Chair in the complainant’s program, went to speak to the complainant about course CE 208.
According to the complainant, Mr. Burton came to tell him that he was going to receive the one
week assignment in course CE 208 as he had in previous years and the fact that he had not yet
receive the SWF was an oversight. Mr. Burton asked what could be done about the fact a SWF
had not yet been provided even though the assignment was to commence on April 28. The
complainant responded that in his view, the College would have to provide compensation in
accordance with a formula established in a 2000 award issued by Howard Snow (George Brown
College, unreported, June 13, 2000). According to the complainant Mr. Burton responded by
saying “I’ll see what I can do” and then left the room.
Mr. Burton provided a different version of his April 15 conversation with the
complainant. He stated that he was newly appointed as Chair prior to the commencement of
the previous fall semester. At that time, when discussing the years teaching assignment with
the complainant, he was not aware of the previous assignments for course CE 208 and did not
discuss them with the complainant. When he became aware of the need to deliver course CE
208 he went to speak to the complainant on April 15, 2014, as he valued the complainant’s
opinion. According to Mr. Burton, he made no commitment to assign the complainant to course
CE 208 in April 2014. He simply sought information as to how the course had been assigned in
the past and when the complainant explained that he and the other teachers had been
assigned the course in previous years he said “I’ll see what I can do”.
In any event the next day Mr. Burton sent out an e -mail saying that he would be on
vacation and would return on April 28, 2014. The e-mail added than any inquiries could be
directed to Joe Cordeiro, the Dean of the department. At that point , the complainant decided
that he needed to begin preparing for the CE 208 assignment and did so. On April 23, 2014,
Bruce Elliott, the program co-ordinator, came to see the complainant on another matter. The
complainant mentioned that he had still not received an SWF for the CE 208 assignment. Mr.
Elliott informed that complainant that Mr. Cordeiro had determined that the field work would
be delivered by an outside survey firm this year and that Mr. Elliott would be the only teacher
assigned to the course.
It is the position of the complainant and the Union that the assignment had been made
when Mr. Burton met with the complainant on April 15. Furthermore, there was a past practice
of paying compensation in accordance with the “Snow formula” when SWF forms were not
provided in a timely fashion. In that regard the Union provided evidence of a settlement
reached on a “without prejudice” basis in connection with a dispute over a number of
assignments for a “Wasaya Project”. Given that the resolution of that dispute was expressly
without prejudice I have determined that I can place no reliance on the resolution of that
dispute. No other evidence of past practice was provided.
The Union also submitted evidence indicating that the College had in fact prepared a
SWF for the complainant for a CE 208 assignment but that it had not issued it to the
complainant. The Union asserts that this is consistent with the complainant’s assertion that Mr.
Burton had committed to issue a SWF to the complainant in his discussion with the complainant
on April 15, 2015.
I should also note that the complainant conceded that if in fact Mr. Burton had
committed to making the assignment in question it was within the College’s right to withdraw
the assignment without penalty if it had done so in a timely fashion but that April 23 – the date
of the complainant’s conversation with Mr. Elliott, was too late to have done so.
In these circumstances the Union asserts that the assignment to CE 208 was made on
April 15 and given that no SWF was issued more than six weeks prior to the scheduled
commencement of the assignment, then compensation in accordance with the “Snow formula”
should be awarded.
The College asks me to find that no assignment had been made. It also asserts that even
if an assignment had been made it would not ordinarily attract additional compensati on and
that no “penalty” should be awarded. It submits that the Snow decision arises in different
circumstances and should not be applied in this case.
In the circumstances described above I am unable to find that an assignment was made
to the complainant. Mr. Burton was very adamant that he made no commitment to assign the
work and although the complainant may have fell under an expectation that he would receive
the SWF, I am unable to conclude that Mr. Burton was not telling the truth.
In addition, it is clear that upon receipt of Mr. Burton’s e-mail on April 16, in which he
indicated that he was going on vacation, the complainant could have approached Mr. Elliott or
Mr. Cordeiro to clarify when a SWF might be received and if so, whether he would be
compensated for the late delivery of the SWF. He did neither of those things and chose to
proceed without a confirmed delivery of the SWF. I would add that given that in the past the
complainant was one of three teachers who shared in the assignment in the pas t, the
complainant could also have consulted with the other teachers to see whether they had been
given the same commitment and to discuss whether they had received a SWF and, if they had
not, how they expected to be dealt with. There is no evidence before me that any such
discussions took place. In the circumstances, without the issuance of a SWF, I must conclude
that no assignment of CE 208 had been made to the complainant in 2014.
But even if I had found that the assignment had been made, I would not ha ve applied
the Snow formula in the circumstances of this case.
In the George Brown case, arbitrator Snow dealt with a situation in which it was
established that the college had been repeatedly been guilty of late in the issuance of SWF
forms. The complainants in question were issued late SWF forms for courses which were to be
taught over approximately a two month period. These assignments were new assignments and
in at least one case the assignment on the late SWF had changed from what had previously
been discussed. The evidence established that the late delivery of the SWF’s caused the
complainants to have to complete a significant amount of preparation at a time when they had
other duties to perform. At page 14 of his award arbitrator Snow stated the following:
… any monetary remedy for damages suffered should be compensatory – it
should simply compensate for the loss incurred by the teacher involved. A
monetary remedy should not be one which effectively fines or punishes the
Employer for its violation of the agreement, nor should it be one which provides
a “windfall” gain for the teacher.
After concluding that damages in that case could not be quantified the arbitrator
established a formula for the complaints before him in which he multiplied the number of
weeks that the SWF was late times the number of hours of preparation on the SWF times
$15.00. No real explanation is provided as to how this formula was established other than as an
effort to provide some compensation in the circumstances of that case.
The circumstances in this case are entirely different. The assignment in dispute would
be for one week’s duration. It had been traditionally been shared among three teachers and the
complainant’s actual teaching time was one day and a half. The complainant had had the same
assignment since 2010 and so the amount of preparation should have been far different in 2014
than in 2010. In these circumstances application of the Snow formula would not be
compensatory, but instead would amount to a penalty to the College and a windfall for the
Complainant. The evidence presented in my view does not allow me to conclude that the
complainant suffered any real loss from his presumption formed on April 15 that an assignm ent
had been made.
For these reasons the Union’s complaint is dismissed.
Dated at Toronto, this 30th day of March, 2015.
________________________
Norm Jesin