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HomeMy WebLinkAboutMorgulis 95-04-12(90D673) MORGULIS VS SENECA COLLEGE IN THE MATTER OF AN ARBITRATION B E T W E E N: SENECA COLLEGE (S) (The College) -and- ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The Union) AND IN THE MATTER OF THE GRIEVANCE OF G. MORGULIS - #9OD673 BOARD OF ARBITRATION: Kenneth P. Swan, Chairman R.J. Gallivan, College Nominee Menno Vorster, Union Nominee APPEARANCES: For the College: C.G. Riggs, Counsel For the Union: Michael D. Wright, Counsel SUPPLEMENTARY AWARD In the award in this matter, dated August 19, 1994, a majority of the board of arbitration (Mr. Gallivan dissenting on this point) made the following reservation of jurisdiction: We referred at the outset to an application by the Union to reopen the hearing to present evidence that an individual who replaced Professor McVey during a leave during the 1993-94 academic year did not possess the very NCCP qualifications relied upon by the College to refuse displacement rights to the grievor. In the circumstances, since the College denied any such lack of qualifications, we consider it advisable to issue our award on the evidence received so far, and reserve on the Union's application until the parties can assess, having seen how we have disposed of the issues raised, what relevance any such evidence would have. Following receipt of the award, the Union sought to have the board of arbitration exercise this reserved jurisdiction by reopening the hearing for the receipt of new evidence. The College objected to this proposition, and after an exchange of views the board of arbitration requested of the parties written submissions in relation to this question. The exchange of correspondence establishes, at least well enough for the purposes of dealing with the Union's request to reopen the hearing, the additional facts on which the Union wishes to rely. We do not have sworn testimony in relation to these facts, but it appears from the correspondence that there is not really much dispute, and we propose, solely for the purpose of dealing with the Union's application, to treat any discrepancies in the facts as proposed in the correspondence as resolved in favour of the Union's assertions. Professor Brian McVey was the incumbent of one of two positions sought by the grievor in his original grievance, which alleged that he was improperly laid off contrary to the provisions of the collective agreement. We determined that issue by dismissing the grievance, after hearing a large amount of evidence over a number of hearing days. Our conclusion is summarized in the following paragraph, at pp. 15 and 16 of the award: Based on all the evidence before us, however, the particular positions here sought by the grievor are of a completely different nature. The College asserts that the coaching program relies for its effectiveness and appeal to students on the direct and continuous involvement of the teaching staff in the particular sports in which coaching techniques are taught, and in the organizational structure for coaching development which is exemplified by NCCP certification. While this not an easy decision to make, and has caused us some considerable anxiety, we have concluded that, on the balance of probabilities, the College's position is the better one. The grievor and the Union have not satisfied us that the grievor has maintained, over his lengthy absence from any involvement in the coaching courses and active coaching in gymnastics, the degree of competence, skill and experience which, in the special circumstances of the positions here sought, would be necessary to fulfil the requirements of those positions. One factor in our deliberations was the fact that Professor McVey holds Course Conductor certification in the NCCP program at Levels 1, 2 and 3 Technical, was certified as a gymnastics coach at Level 4 and was preparing to take Level 5 certification as the hearing continued. The grievor, on the other hand, had held Course Conductor certification at Level 1 Technical, and partial Level 2 certification as a Coach. Those qualifications had expired on January 31, 1986, and had not been renewed at the time of the grievance. The evidence which the Union wishes us now to consider relates to a one year professional development leave granted to Professor McVey for the 1993-94 academic year. During his absence from the College, five individuals took on responsibility for various parts of his instructional load, insofar as it related to NCCP certification. Two of these individuals were certified as Course Conductor 1, Technical, and two others were certified as Level 4 Coaches and Course Conductor 2, Technical. A fifth individual, Andre Vallerand, was certified as a Level 4 Coach and a Course Conductor 3, Technical. While Mr. Vallerand's Course Conductor certification is in men's apparatus, and Professor McVey's qualification is in women's apparatus, a letter dated September 16, 1993 from the Canadian Gymnastics Federation indicates that Mr. Vallerand "is able to teach all common areas of Level 2 and 3 gymnastics technical courses for men and women." The Union asserts, and for the purposes of dealing with this application only, we assume that "there is no individual at the College in possession of course conductor III for Women's Apparatus who had responsibility for Mr. McVey's courses during his leave". Even accepting this assertion at face value, however, does not advance the grievor's case. Professor McVey was absent from the College on a leave of absence, no doubt in accordance with the provisions of the collective agreement. During that one year absence, the College took whatever measures were necessary to ensure that his courses were covered, and the College asserts that all the students were duly certified as offered in the College calendar. Even, however, if the Union's position is correct, and Mr. McVey's courses were covered by persons who lacked the qualifications which he had and on which the board of arbitration relied in making its decision, that cannot alter our finding that the grievor lacked the competence, skill and experience necessary to fulfil the requirements of Professor McVey's position in September 1990. Nor does the fact that Professor McVey's duties were taken up, on a temporary basis, by a number of individuals who, even among them, did not offer the precise mix of qualifications that Professor McVey presented at the arbitration, affect our finding that the College was justified in insisting upon Professor McVey's qualifications, or something like them, to establish the competence, skill and experience to perform the position on a permanent basis. In our view, even taking the proposed evidence in its strongest form as support for the Union's case, it would not affect our decision in this matter if it were established in evidence before us. Therefore, the Union's application to reopen the hearing and present new evidence is denied, and our jurisdiction in relation to this arbitration is at an end. DATED AT TORONTO this 12th day of April, 1995. Kenneth P. Swan, Chairman I concur"R.J. Gallivan" R.J. Gallivan, College Nominee I dissent; see attached"Menno Vorster" Menno Vorster, Union Nominee DISSENT BY UNION NOMINEE MENNO VORSTER Ontario Public Service Employees Union and Seneca College of Applied Arts and Technology Grievance of Gary Morgulis In the initial award in this matter, the majority found that in order for a gymnastics instructor to have the sufficient "competence, skill, and experience" to meet the position requirements, it is necessary that they posses a coaching certificate which is rated at least one level higher than the level of the course they teach. Without repeating the entire text, my dissent from that opinion was based on my belief that the College was being harsh and inflexible in applying this standard to Mr. Morgulis without due consideration of his wealth of past experience in the field, and without affording him the opportunity to obtain required paper qualifications within the short time necessary. It seems, however, that the College has been far less rigorous in establishing the standards for the future vacancy in the same position. By allowing an instructor without the necessary paper qualifications to replace the incumbent, Mr. McVey, for a lengthy period of time, I suggest that the College has simply reinforced Mr. Morgulis conviction that he is being treated in an unfair and arbitrary manner. I would have allowed a further hearing into the ongoing situation. Respectfully submitted, Menno Vorster