HomeMy WebLinkAboutTriano 91-12-01IN THE MATTER OF AN ARBITRATION
B E T W E E N:
ONTARIO COUNCIL OF REGENTS FOR
THE COLLEGES OF APPLIED ARTS AND TECHNOLOGY
(NIAGARA COLLEGE)
(The Employer)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(FOR ACADEMIC EMPLOYEES)
(The Union)
AND IN THE MATTER OF A GRIEVANCE OF
MR. WAYNE TRIANO
BOARD OF ARBITRATION:
C. Gordon Simmons, Chairperson
Jon McManus, Union Nominee
Bob Gallivan, Employer Nominee
REPRESENTING THE UNION:
Mr. David Wright, Counsel
REPRESENTING THE EMPLOYER:
Mr. Chris Riggs, Counsel
A hearing in this matter was held in Toronto, Ontario on May 31, 1991, followed by
written submissions by the parties.
The Grievor is a professor at Niagara College and has held an appointment as
"Co-ordinator" between the years 1972 and 1990. In May, 1990 he was informed that a
change was to occur in the number of Co-ordinators that would be continued at the
college. The Grievor was informed that he could apply for this changed assignment
along with other faculty members. He applied unsuccessfully and another member of
the academic staff was given the assignment.
The Grievor filed the following grievance as a result of what transpired (Exhibit
1):
I grieve that the college violated the collective agreement
and acted in bad faith when they unjustly disciplined me by
demoting me from the position of Co-ordinator; the position
which I have held and performed satisfactorily for 16 years.
The articles relied upon include: articles 1,7,8,26, Appendix
1 and all relevant articles.
The Grievor seeks to be designated to the position of Co-ordinator and seeks a written
apology for the improper and unjustified demotion.
At the commencement of the hearing the Union informed the Board that it would
be pursuing only an alleged violation of Article 8 at this time. We were specifically
referred to Article 8.05 which reads:
When the College decides to lay off or to reduce the
number of full-time employees who have completed the
probationary period or transfer involuntarily full-time
employees who have completed the probationary period to
another position from that previously held as a result of such
lay-off or reduction of employees, the following placement
and displacement provisions shall apply to full-time
employees so affected. Where an employee has the
competence, skill, and experience to fulfill the requirements
of the full-time position concerned, seniority shall apply
consistent with the following:
(a) an employee will be reassigned within the College
to a vacant full-time position in lieu of being laid off if the
employee has the competence, skill, and experience to
perform the requirements of a vacant position;
It is the Union's position that what transpired was either a layoff or an involuntary
transfer and the Union takes the position that the Grievor is entitled to be placed in the
vacant position without having to compete for it.
The Employer argues that in order for Article 8.05(a) to apply there must have
been a decision by the College to layoff or reduce the number of full-time employees
who have completed the probationary period. There having been no evidence
whatsoever to suggest that such has taken place, then Article 8.05(a) is not activated and
this is because there are no preconditions which puts Article 8.05(a) in motion.
The facts are not in dispute. The Grievor has been employed by the College since
1968. He is a professor in the Business Division and teaches in the accounting
programme. In 1972 the Grievor was appointed Co-ordinator in the business
accounting programme where he remained until 1974 when he was appointed by a
memo (Exhibit 3) in the following terms:
This memo is to confirm that effective September 1, 1974 the
title of your job position will be Co-ordinator, Accounting.
He continued to perform this role until 1984 at which time it was decided that the
programme had grown to a point where another Co-ordinator was needed in order to
carry out the programme (Exhibit 4). It should be noted that in 1984 there was another
parallel programme in computers which had a Mr. John Cassidy as its Co-ordinator.
That programme was likewise expanded because of similar workloads due to the
growth of the programme. Messrs. Cassidy and Triano were informed about this
change that was to take place and were further informed that they would not have to
compete for any Co-ordinator position but rather they could take their choice of being
Co-ordinator for either the three- or two-year programme in their respective
departments. The Grievor chose the three-year accounting programme and the two-
year programme was posted (Exhibit 5) and was subsequently filled.
The posting for the two-year accounting programme contained, , the
inter alia
following paragraph:
The appointment will be for a one-year period and be subject
to renewal if mutually agreed to by the Co-ordinator and the
Chairman.
This arrangement continued until May, 1990 when it was decided that a further change
was to take place. That change developed in the following manner. On May 17, 1990
Mr. Andy Ferguson, Director of the Business Division, had the following memorandum
circulated to the members of the Accounting Department. It reads (Exhibit 10) as
follows:
There will be a short meeting of all members of the
Accounting Department from 11:30 to 12:00 on Tuesday,
May 22 in the Merritt Conference Room.
I ask that the three co-ordinators, Jim, Ross and Wayne, meet
with me ten minutes prior to the start of the meeting, at
11:20, in my office.
The parties met at 11:20 on the morning of May 22 at which time the Co-ordinators
nd
were told by Mr. Ferguson that there was to be only one Accounting Co-ordinator for
the 1990-91 academic year and that the job was to be posted and further that all three
members of the co-ordinating team were welcome to apply. The Grievor testified that
he had not been consulted prior to this disclosure by Mr.ÊFerguson. The position was
posted (Exhibit 11) in May and contained, the following paragraph:
inter alia,
The appointment will be for a one-year period and be subject
to renewal if mutually agreed to by the Co-ordinator and the
Director. This is a Two Step Co-ordinatorship.
The Grievor applied but he was not successful and instead a Mrs. Clara Casucci-
McLeod was the successful applicant.
As stated earlier, the Grievor entertains the view that he ought to have been
awarded the vacant position and that he ought not to have been compelled to compete
for it. He claims that he is the senior staff member and that he has performed the co-
ordinating functions over a sixteen year period and that he has performed the functions
adequately (to use his words), and has no disciplinary notations on his personnel file
nor has he ever been criticized that he was not performing the assigned duties to the
satisfaction of the Employer.
The Union asserts that the Employer has regarded the position of Co-ordinator
as a "position". The Union claims its position is supported by the evidence, in
particular, the following as outlined in the Union's written submission:
a) Mr. Triano's uncontradicted testimony that at all
times between 1972 and 1990 he held a 'position' as
co-ordinator;
b) Exhibit 3, which states that effective September 1,
1974 the title of Mr. Triano's 'job position' is 'Co-
ordinator Accounting';
c) Exhibit 4, the memo which outlines the creation of the
additional co-ordinatorships for the computer and
accounting areas. Prior to 1984 there was one co-
ordinator in both areas. As Exhibit 4 specifies, this
would be changed to provide for two co-ordinators
for each program. The bottom paragraph on page 1
of Exhibit 4 states that the 'two additional positions'
were to be filled by competition with the incumbents
having the choice of which of the co-ordinatorships in
their area they would retain. Again on page 2 there
was reference to 'the positions'. Clearly, all four co-
ordinatorships were considered by the employer to be
'positions'. This is confirmed by Exhibits 5 and 6
which are the postings for the two newly created
'positions'. Both Exhibits refer to the 'position of Co-
ordinator';
d) Exhibit 8 which informs the grievor that he is
'classified as a Program Co-ordinator';
e) Exhibit 9, Mr. Triano's job description from 1984
through to September 1990, which describes
Mr.ÊTriano's 'position title' as 'Program Co-ordinator'.
The duties of the position are described as being a
series of specified functions 'in addition to the duties'
of a Teaching Master. The second last paragraph on
page 2 specifies that the duties and working
procedures set out are a description of 'the chief
functions of the job';
f) Mr. Triano's testimony that he was paid an amount
equivalent to two steps on the salary grid for a
Teaching Master (as of 1990 $3,600.00) above a
Teaching Masters salary throughout the period of
1972 through 1990.
In addition, the job posting in May, 1990 (Exhibit 11) begins as follows:
Applications are invited from the full-time Accounting
faculty for the position of Co-ordinator of Accounting and
C.E. Liaison.
Similarly, a 1983 job posting for the School of Applied Arts - Co-ordinator of Labour
Studies contains the following statement: "The successful applicant for this challenging
position .... " And so too in June, 1990, another job posting (Exhibit 14) for Co-ordinator
of the first year Business Administration programme, the posting begins: "Applications
are invited from the Business Faculty for the position of Co- ordinator .... " Therefore,
the Union asserts that not only does the Employer consistently describe "Co-
ordinatorships" as "positions", it also treats them as "positions" by posting Co-
ordinatorships as vacancies.
In support of its position, the Union referred the Board to two prior community
college arbitration decisions. The first is an unreported decision of arbitrator Weatherill
in dated July 19, 1982. In that decision, the
Algonquin College and OPSEU (Montgomery)
Grievor had been appointed Co-ordinator in the fall of 1979 on an acting basis. In
January, 1980, after the Grievor and others applied for the position, the Grievor was
appointed Co-ordinator on an "indefinite" basis. In mid-July, 1980 the Grievor went on
vacation at the end of which she went on maternity leave, returning to work in March,
1981. Upon her return, she did not return to her duties as a Co-ordinator but was
simply assigned duties as a Teaching Master. The work of co-ordinating which the
Grievor had done was still being performed by another Faculty Member. But while the
Grievor was absent on maternity leave as well as after her return, there was a
reorganization within the Division and the programmes were regrouped on different
lines than in the past. The Board in the decision concluded on page 4 that:
Montgomery
At some point then - it would appear to have been about
June, 1981 - the 'grievor's job' of Co-ordinator can no longer
be said to have existed as such. The grievor did not apply
for a Co-ordinator's position under the new organization.
The Weatherill Board looked at the maternity leave provisions in Article 14.03
and looked as well at the as an aid to interpret Article 14.03.
Employment Standards Act
The Board concluded that the Grievor had a right to return to her position which had
continued until sometime in June, 1981 when that job ceased to be performed. Pages 8
through 11 of that decision are instructive and read as follows:
An appointment as a Co-ordinator is not the same
thing as an appointment as a Teaching Master. A Teaching
Master is appointed to a classification, and has the right,
subject to the operation of the seniority provisions and the
availability of work, (not to speak of the employer's proper
exercise of its managerial rights), to remain in that
classification. A Co-ordinator is an employee - no doubt a
Teaching Master - who is designated as such and who
receives an allowance in respect of such position 'in addition
to' his salary. Such allowance is of course part of the
individual's earned income or 'wages'. The collective
agreement does not, however, provide for any form of
'tenure' for those designated as Co-ordinators. Indeed, the
practice with respect to such appointments varies from one
division of the College to another, it seems, as well as from
college to college.
It was the grievor's understanding that in her division
at least, once one was a Co-ordinator, one remained such. It
may well have been the case that employees designated as
Co-ordinator remained such over a prolonged period of
time. That would not, however, establish their right to
remain such, however well it might speak of their
performance in such jobs. In the course of the discussions on
reorganization of the division, referred to earlier in this
award, the College stated the Co-ordinators were appointed
for a one-year term, and that the College had the right to
revoke such designations. In our view, the College does
have that right. It is nevertheless the case, according to the
evidence, that in most instances the designation was
continued for a number of years. The union, it may be
noted, sought to have the College change its policy in that
regard, and to make such appointments on an annual basis.
The relevance of this for our purposes is that it underlines
that it is a College policy (and not a matter of individual
right) which is involved. As was stated in the
Seneca College
case (July 11, 1977), '-- employees cannot
(Nicholson)
anticipate security in such a position as they can in their
regular classifications --".
Had the 'grievor's job' as Co-ordinator come to an end
during her absence, there would be no obligation on the
College to designate her, on her return, as Co-ordinator of
some other programme. That would be to give her greater
security in her work than she had before she left, and an
advantage over others not provided for in the collective
agreement and not required by the legislation. The
designation as Co-ordinator is of a particular individual in
respect of a particular programme or group of courses; it is
quite different from appointment as a Teaching Master,
which places a qualified individual in a very general
classification, carrying with it the security provided by the
collective agreement.
In the instant case, however, the 'grievor's job' as Co-
ordinator continued to exist throughout the period of her
absence, and for several months thereafter. The grievor's
'position' did not change during this time, and that is so
notwithstanding that Ms. Gavsie, who took over upon the
interruption of the grievor's work, made substantial course
revisions. There is no suggestion that the grievor could not
have returned and replaced Ms. Gavsie, just as Ms. Gavsie
had replaced her.
Although, then, there could have been changes in the
situation whose effect would have been that the 'grievor's
job' disappeared, and that she could not have returned as a
Co-ordinator, such changes did not occur in the instant case.
The grievor returned to a situation which was substantially
like that which she had left. 'Her job' was still there. The
effect of article 14.03 is, in our view, that an employee on
maternity leave is entitled to return to the position she left,
other things being equal. In the particular circumstances of
the instant case, that means that the grievor, on her return
from maternity leave, ought to have been allowed to return
to her position of Co-ordinator.
Accordingly, it is our award that the grievance be
allowed, and that the grievor be compensated for the loss of
her Co-ordinator's allowance for the period from her return
to work until the time - apparently in June, 1981 - when that
job ceased to be performed. This board remains seized of
the matter for the purpose of determining the amount of
compensation payable to the grievor if the parties are unable
to agree thereon.
Mr. Weatherill chaired another arbitration decision involving
Centennial College and
grievance, unreported, dated August 3, 1983. In that case the facts are
OPSEU (Prentice)
somewhat different from the instant situation in that there was not a vacant Co-
ordinatorship which the Grievor claimed. Rather, the Grievor in that case claimed that
the College failed to abide by Article 8.04 of the Collective Agreement (which
corresponds to the present Article 8.05 but with different wording) which required
consultation prior to a layoff or involuntary transfer. There was no consultation in that
case and therefore the Board found that the Employer violated the Collective
Agreement.
Article 8.04 in the Collective Agreement before the Weatherill Board reads in part
as follows:
8.04 When a College plans to lay-off or to reduce the
number of full-time employees who have completed the
probationary period, or plans the involuntary transfer of
such employees to other positions than those previously
held as a result of such a planned lay-off or reduction of
employees the following procedure shall apply:
(a) The College will notify the Local Union President of the
planned staff reduction and the courses, programmes or
services affected;
(b) Within seven calendar days of the receipt of such
notification, the College and Union Committees shall meet
for the purpose of the College advising of the circumstances
giving rise to the planned staff reduction and the employees
affected;
It was because the Employer had failed to notify and meet with the Union that the
Board found that the Collective Agreement had been violated. Accordingly, the
Prentice
case stands for the proposition that a Co-ordinator who was removed without the
proper notice, etc. in Article 8.04 reinforces the Union's position that a Co-ordinator is a
position within the meaning of Article 8.04 (and 8.05 of the instant Collective
Agreement) which brings into play the "involuntary transfer" which activates the
competence, skill, and experience which the uncontradicted evidence revealed the
Grievor possesses. Accordingly, the Grievor ought to have been placed in the "new"
Co-ordinator "position" without having to enter a competition for it. The Union
therefore seeks as a remedy the appointment of the Grievor to the Co-ordinator position
for the academic year 1990/91 and that he be given an opportunity for consideration for
the renewal of appointment for the position for the 1991/92 academic year.
As stated earlier, the Employer argued that there has not been a violation of
Article 8.05(a) because there has not been a decision by the Employer to layoff or reduce
the number of full-time employees who have completed the probationary period.
Furthermore, according to the Employer, the reference in the article to "transfer
involuntarily full-time employees" is only activated where the transfer comes about "as
a result of such lay-off or reduction of employees". Because the preconditions have not
been met the article has no application to the situation before us and, therefore, the
grievance must be dismissed.
The Employer points out that in th e case, supra, the Grievor was
Prentice
transferred from the Continuing Education Division to the Health Sciences Division and
in the course of this transfer had lost her Co-ordinatorship. In dealing with the
application of Article 8.04 (now 8.05), Mr. Weatherill stated on page 5:
Although it does not appear that there was any layoff,
the College did indeed plan to reduce the number of full-
time employees in the grievor's division, and certainly
planned - and carried out - the involuntary transfer of the
grievor as a result of that reduction.
Furthermore, the Employer asserts that Article 8.05(a) applies to a right to reassignment
to a "vacant full-time position" in lieu of being laid off. In the Employer's view the Co-
ordinatorship is not a full-time position and the Grievor has continued throughout in a
full-time teaching position which has been unchanged. The Employer acknowledges
that various documents refer to Co-ordinatorships as positions. But in the Employer's
view this has no legal significance when one looks at the provisions of the Collective
Agreement. The Employer takes the view that the decision is certainly not
Prentice
authority for the proposition that a Co-ordinatorship is a position within the meaning of
the Collective Agreement.
The Employer also points out that the decision expressly states that
Montgomery
seniority does not attach to a Co-ordinatorship. He refers to Mr. Weatherill's comment
at page 8 of that decision, that, "The collective agreement does not, however, provide
for any form of 'tenure' for those designated as Co-ordinators." The Employer points
out that Mr. Weatherill continues to say:
It was the grievor's understanding that in her division
at least, once one was a Co-ordinator, one remained such. It
may well have been the case that employees designated as
Co-ordinator remained such over a prolonged period of
time. That would not, however, establish their right to
remain such, however well it might speak of their
performance in such jobs.
The Employer then referred the Board to page 71 in the guideline section of the
Collective Agreement. Section 5(b) refers to Co-ordinators allowance:
(b) Coordinator Allowance -- coordinators are
teachers who in addition to their teaching responsibilities are
required to provide academic leadership in the coordination
of courses and/or programs. Coordinators report to the
Academic Manager who assigns their specific duties. It is
understood that coordinators do not have responsibility for
the disciplining of teachers in the bargaining unit. It is not
the intention of the Colleges to require employees to accept
the designation of coordinator against their wishes.
Those employees who are designated as coordinators
will receive an allowance equal to one or two steps on the
appropriate scale. Such allowance will be in addition to the
individual's salary.
Further, the Employer refers the Board to pages 105 through 118 of the Collective
Agreement which refers to job classification plans for "positions" in the academic
bargaining unit and on page 114 refers to the "Classification Definitions For In
Positions
The Academic Bargaining Unit". Such definitions include "Professor," "Counsellor,"
"Instructor," "Librarian 1," and "Librarian 2." There are, however, no references to "Co-
ordinators" in such definitions.
Accordingly, it is the Employer's position that it is at liberty to terminate the
Grievor's responsibilities as a Co-ordinator at any time and that he has no contractual
claim either to the continuation of the allowance or to a new Co-ordinator role and that
Article 8.05(a) of the Agreement has not been violated.
The Employer did not call any evidence. The evidence of Mr. Triano revealed
that he agreed that the decision whether to have Co-ordinators or not was one for the
Employer to make and further that it was for the Employer to decide the number of Co-
ordinators to have at any one time. Further, while the Grievor was not subjected to any
annual reviews and he was under the impression that his appointment as Co-ordinator
was for an indefinite period, he conceded that this was his impression and that no one
from management had ever indicated to him that the Employer considered such to be
the case. There is no doubt that the Grievor has held a Co-ordinator position over an
eighteen year period and that he has performed all of the duties associated with a Co-
ordinatorship in a manner that the Employer has not had any cause to complain. The
decision was decided on the failure of the Employer to give the proper notice
Prentice
and hold meetings with the Union as required in Article 8.04 and, therefore, the
decision of the Employer was set aside. Of more significance, however, is the
decision and the comments contained in Mr.ÊWeatherill's award on pages
Montgomery
8 through 11. This decision was rendered in 1982 and clearly states that a teacher
holding a Co-ordinator position does not hold tenure as a Co-ordinator as does a person
holding a Teaching Master position. While in that decision the Board held that the
Grievor was entitled to return to the position that she had held prior to taking her
maternity leave (which decision was reached with the aid of interpreting the
), the Grievor in that case was not entitled to continue in the
Employment Standards Act
position of Co-ordinator after that position was substantially changed so that the
particular job ceased to be performed.
In the instant situation, we are faced with the Employer deciding to reorganize
the Co-ordinator's position to a point where one person would be performing the
functions of three Co-ordinators. We believe that such an organizational change would
fit within the comments of Mr. Weatherill in the above-quoted pages 8 through 11 of the
decision.
Montgomery
Further, the decision was rendered in July, 1982 and the parties have
Montgomery
negotiated subsequent collective agreements without specifically addressing the issue
of Co-ordinator as having tenure status which the Weatherill Board claimed it did not.
If indeed the Union was of the view that a Co-ordinator ought to be granted the same
element of tenure as a Teaching Master enjoys then, in the face of the
Montgomery
decision it seems to this Board that it was incumbent upon the parties to address that
issue in negotiations. Whether or not Mr. Triano would have been successful in
maintaining the position of Co-ordinator had it not undergone such a reorganization as
has been the case, then other considerations would apply. However, in light of the
existing jurisprudence that was presented to this Board, we find that we are unable to
conclude that the Grievor ought to have been awarded the "vacant position" of Co-
ordinator because it was not the "position" that the Grievor had been performing up to
May of 1990.
Accordingly, for all of the f oregoing reasons, the Board finds that the grievance
must be and is hereby dismissed.
Dated at Kingston, Ontario, this _______ day of December, 1991.
[--- Unable To Translate Box ---]
C. Gordon Simmons
Chairperson
I concur/dissent[--- Unable To Translate Box ---]
Jon McManus
Union Nominee
I concur/dissent[--- Unable To Translate Box ---]
Bob Gallivan
Employer Nominee