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HomeMy WebLinkAboutMcKenney 95-05-1190D574 MCKENNEY VS HUMBER COLLEGE IN THE MATTER OF AN ARBITRATION BETWEEN ONTARIO PUBLIC SERVICE EMPLOYEES UNION LOCAL 562 (hereinafter referred to as "the Union") - and - HUMBER COLLEGE OF APPLIED ARTS AND TECHNOLOGY (hereinafter referred to as "the College") GRIEVANCE OF BARBARA McKENNEY BEFORE:M.G. Mitchnick-Chairman B. Switzman-Union Nominee F. Cowell-Employer Nominee FOR THE UNION: C. DiFrancesco-Counsel R. Mills B. McKenney FOR THE EMPLOYER: R. Charney -Counsel H. James K. Simon Hearings held March 22nd, June 1st and August 27th, 1993; March 21st, 1994, and evenings June 14th, June 28th and September 12th, 1994; Executive Sessions held November 28th, 1994 and April 11th, 1995 A W A R D The grievor, Barbara McKenney, was a full-time teacher from 1984-90, in the Office Administration Department's "Medical Secretary" course, within the College's Business School. In June of 1990 the grievor was laid off, in the course of a substantial down-sizing at the College, and the present grievance essentially challenges the fact that the College did not see fit to call the grievor back in 1992 when vacancies had arisen in the Department due to retirement. The grievor is by education a physio- and occupational therapist, and has worked in a variety of clinical office settings in the course of her medical career. Upon graduation in 1956 she joined Peel Memorial Hospital, where as sole Charge Physiotherapist she was responsible for the administration of that small department. The grievor worked in England for two years following that, returning as Head of the Occupational Therapy Department at Kingston Psychiatric Hospital, where she supervised one skilled tradesman and a number of therapists. From there her work time was limited, as she applied herself to raising a family, and in 1977 she joined the Faculty of Humber College as a part-time instructor. Continuing in that part-time role to 1984 (as a Teaching Master as of 1983), the grievor occupied a full-time position as Sole Charge Physiotherapist at the Evans Occupational Health Clinic in Toronto. The staff at that Clinic included, amongst others, both a receptionist and a medical secretary, as well as at varying times a full-time Office Manager. However as the name of the Clinic would imply, the grievor as the professional Physiotherapist played a key role there in the day-to-day administration and co-ordination of patient services, including the review of patient files, charts and specialty reports, the telephone booking of appointments with labs and specialists, and the maintenance of patient records in general. She was also directly responsible back then for all of the documentation relating to Workers' Compensation (which involved the bulk of the clientele) and OHIP, and in particular for the billing in both areas. What the grievor did not do, essentially, was type, although she did take one keyboarding course in 1984, essentially with a view to the emerging trend toward computer technology. From 1984-91 the grievor moved to the role of full-time Teaching Master at the College, teaching essentially the second to fourth semester courses of Medical Sciences (largely a terminology course) and Medical Machine Transcription. The grievor also was the teacher assigned as co-ordinator of the fourth-semester Field Placement course from time to time. The grievor has an affiliation, through her faculty position, with the Medical Secretaries' Association, and to a lesser degree with the American Association of Transcriptionists. She does her own research on an ongoing basis to keep current with medical developments in both her profession and in what she teaches, and as part of her own work towards a B.A. in Education at York in 1986 did a survey paper on the field of Medical Transcription, followed in 1988 by a major paper identifying the need for a more defined Medical Transcription Program at Humber. The grievor, as the College emphasizes, did not teach any of the basic courses offered to would-be secretaries enrolled in the Program's first semester, where students receive not only training in keyboarding but also (more recently) in computer applications. In the "Introduction to Office Systems" course, for example, the students are taught how to: "1.identify and describe terms and concepts related to computer hardware, operating systems and applications software programs; 2.perform basic Disk Operating System (D.O.S) functions; 3.identify and describe terms, concepts and procedures related to word processing programs; and 4.perform word processing functions using WordPerfect software." The latter is set out in more detail in the Course Outline as well, and takes the student through all of the principal features of WordPerfect, including the various codes, blocking, formatting, and file creation. From there, the students go on to choose one of the four specialty areas or professions: executive secretary, legal secretary, medical secretary, or (at that time) word- processing specialist. In the case of the Medical Secretary course, the second semester goes on to deal with: Medical Secretarial Procedures 1 Medical Science 1 Transcribing Taped Dictation Elements of Accounting Writing Skills for Office Administration General Education. And for the third and fourth semesters respectively: Medical Secretarial Procedures 2 Medical Science 2 Medical Machine Transcription - Introductory Communications 300 First Aid and Accident Prevention CPR (Basic Life Support) General Education and Medical Administrative Procedures Medical Science 3 Medical Machine Transcription - Advanced Medical Field Placement. While the program obviously is aimed at the "secretarial" level, the courses are provided as well in Medical Science to familiarize the students with basic anatomy and body systems, in order to give the students a better understanding of those and the terminology with which they will be working in a medical or hospital office practice. The "Medical" Machine Transcription course then emphasizes the forms of various specialty reports and the terminology as well. By 1988 the College, in line with current office practice, was turning in its secretarial program to the use of computers, initially using Display-Write 4 as its software. The grievor, like other staff, was given brief training in that, and from the winter of 1988-89 forward taught the Medical Machine Transcription course exclusively on that program. The grievor delivered that course at all levels, including "Advanced", and it was her role in doing that to "troubleshoot" any problems that the students had in class with the software. There has never been an indication from the students that the grievor was deficient in any way in being able to provide that support, and indeed there has been nothing negative to say whatever with respect to the grievor's performance as a teacher during her 1984-89 stint at this College. A course outline for the Advanced Medical Machine Transcription course, it might be noted, was submitted in evidence (at least in the 1992-93 more current form, which refers to WordPerfect rather than Display-Write 4), and provides by way of "Course Description": COURSE DESCRIPTION This course provides advanced training in transcribing taped medical dictation using a microcomputer equipped with WordPerfect software. Through actual cases, the student will develop proficiency in correctly formatting and accurately transcribing a variety of medical reports and correspondence selected from the specialized fields of medicine and typically used in hospital, private practice and Workers' Compensation cases. COURSE OBJECTIVE The objectives of the course are to develop the student's knowledge of complex medical reports and correspondence, familiarity with spoken medical terminology and appropriate reference sources, and the ability to transcribe and format such material using the appropriate functions of the word processing software program, WordPerfect, including automatic page numbering, blocks (moving, copying and deleting), columns, date code, enumerations, file management (naming conventions, root and sub-directories), backing up, fonts, footnoting, hard page break, hard space, hyphenation, justify, macros, margins and tabs (deleting defaults and changing), printing, search and replace, super/subscript, and tab ruler in accordance with accepted practice. CLASS FORMAT Classes will consist of lectures and discussions as well as language skill, proofreading and transcribing exercises based on actual cases selected from the specialized fields of medicine. All transcription exercises will be transcribed in class under the direction of the instructor. COURSE CONTENT The taped medical dictation assignments consist of a variety of current medical reports and correspondence selected from the specialized fields of medicine and include: a.History and physical examination b.Consultant's report c.Operative report d.Psychiatric case study e.Workers' Compensation report f.Medical correspondence g.Autopsy report h.Pathology report i.Discharge summary j.Final notes k.Optholmology l.Neurology m.Obstetrics. Unlike the first-semester courses designed to teach keyboarding, there is no minimum typing speed that must be achieved, apart from the requirement that: Transcription of all production assignments and tests will be timed in accordance with a production rate of 15 words per minute. and:On all graded production assignments and tests, 5% of the total value will be deducted for each keyboarding or proofreading error in spelling, grammar, punctuation or format and for each incomplete line of portion thereof. For comparison purposes, this might be an appropriate time to set out the corresponding College descriptions for the Medical Secretarial Procedures courses, around which the case essentially focused. For Medical Secretarial Procedures 1 the Outline provides: PREREQUISITES: OAGN 101Introduction to Office Systems OAGN 104Keyboarding and Document Formatting OAGN 105Office Procedures and Listening Skills CREDITS: Four (4) ... COURSE DESCRIPTION This course provides an introduction to the responsibilities of a medical secretary employed in a doctor's office, hospital department, clinic or allied health facility. Procedures and practices related to medical law and ethics, telephone and person- to-person patient communication, scheduling appointments, medical records management and manual/computerized OHIP billing will be covered. COURSE OBJECTIVES The objectives of the course are to develop a sound knowledge of current procedures and practices, the ability to perform medical administrative tasks under realistic conditions and demonstrate keyboarding proficiency at 40 net wpm relative to the topics outlined above. Upon completion of the course, the student will be able to use the following features of WordPerfect software in the preparation of documents as appropriate: automatic page numbering, blocks (moving, copying, deleting, undeleting and protecting), cursor movement, date codes, enumerations, file management (naming conventions, root and sub-directories, and backing up), fonts, hard page break, hard space, hyphenation, justify/unjustify, macros, margins and tabs (deleting defaults and changing), printing, and text enhancement. CLASS FORMAT Classes will consist of lectures, discussions, drills and assignments. Role plays and simulations of medical office situations dealing with telephone communications and receiving patients will provide opportunities to apply theory and procedures to practical situations. COURSE CONTENT Unit Chapter 1-2Medical office opportunities 1 Qualifications for success 2 Medical law and ethics 3 3-4Telephone procedures 4 Appointments 5 (scheduling, rescheduling, cancelling) Meeting the patient (reception duties and registering new patients) 5Records Management6 6-7Written communications and processing 7 mail Simulation 1 8-9Preparing medical records8 10-11Billing the patient 9 Simulation 2 12-14Physicians' manual and computerized OHIP billing 15Review and final simulation Keyboarding proficiency, at 45 w.p.m, is 10% of the Final Grade, and as well, once again: On graded assignments and simulation tests, 5% of the total value will be deducted for each keyboarding or proofreading error in spelling, grammar, punctuation or format. For the third-semester Medical Secretarial Procedure 2 course, the outline is roughly similar, providing: COURSE DESCRIPTION This course is a continuation of Medical Secretarial Procedures 1 and provides advanced training in the responsibilities of a medical secretary employed in a doctor's office, hospital department, clinic or allied health facility. Procedures and practices related to hospital and lab booking, telephone communication, health insurance, financial records, researching medical publications, office management, meetings, travel, specialized medicine, clinical assistance and professional affiliations will be covered. Students will develop skill in using a microcomputer equipped with WordPerfect 5.0 and specialized software for the medical office for the preparation of medical records, keyboarded communications and OHIP billing. COURSE OBJECTIVES The objectives of the course are to develop a sound knowledge of current procedures and practices and the ability to perform medical secretarial tasks under realistic conditions. Upon completion of this course, the student will be proficient in the operation of a microcomputer using WordPerfect 5.0 including automatic page numbering, blocks (moving, copying and deleting), columns, date code, enumerations, file management (naming conventions, root and sub-directories, and backing up), fonts, hard page break, hard space, hyphenation, justify/unjustify, macros, margins and tabs (deleting defaults and changing), printing, and tab ruler; and specialized medical software with a keyboarding proficiency of 45 nwpm relative to the topics outlined above. CLASS FORMAT Classes will take the form of lectures, discussions, drill and production assignments, presentations, role-playing and simulated medical office situations. Films, field trips and guest speakers will be scheduled. COURSE CONTENT TEXT UNIT TOPIC REFERENCE 1-2Hospital and Laboratory Booking Telephone Communication 3-4Health Insurance 11 Billing procedures(Review) OHIP (physician, hospital and specialties - manual and computer) WCB (Manual) 5-7Accounting Records, Banking, Petty Cash and 12 Payroll Simulation 3 8-9Office Management 13 Professional Reports 15 10-12Professional Affiliations and Meetings 14 Certification - Ontario Medical Secretaries' Association American Association of Medical Transcriptionists Travel Arrangements 16 Simulation 4 Simulation 2 13-14Medical Specialties 17 Clinical Procedures 18 15Review and Final Tests The minimum typing proficiency becomes 45 w.p.m., and as well the College outline under "Grading" provides: ... Operational performance will consist of the following, at the discretion of the instructor: -production assignments related to procedural practices and keyboarded software applications administered in the classroom under timed conditions; -role playing of medical office communication situations; and -research and presentation assignments. Two term and a final simulation will be administered in the classroom under timed conditions and will be based on production assignments and role-playing situations to date. The student will be required to follow and interpret instructions from taped and handwritten notes; exercise judgement in assessing priorities and making decisions; format and keyboard documents from handwritten or edited draft and taped dictation using the appropriate features of the WorkPerfect and specialized medical software programs; and perform a variety of administrative and patient-related tasks. Reference material available for consultation during the simulation will include the text and materials described in the simulation instructions, a dictionary, secretary's reference manual and specific material as advised by the instructor. The final theory test will consist of definitions of medical terminology and procedures covered throughout the course, given in a closed book format. In the 1989-90 academic year, the Medical Secretary course at Humber employed three full-time teachers: Shirley Harrison, Carol McCanse, and the grievor, Barbara McKenney. The College had, however, been experiencing a decline in enrolment, and the grievor was put on notice in the fall of 1989 that she might be facing lay-off in the ensuing January. That did not materialize, but the grievor in any event decided to go back to the Evans Clinic one day a week on a volunteer basis, apparently to extend her experience in some of the more entry-level tasks of working in a medical office. Her experience in that regard came to be summarized in a general reference letter which found its way into the grievor's file, and which read: June 6, 1990 To whom it may concern: Please be informed that Barbara McKenney worked in an unpaid capacity one day a week from February 12th to May 14th in the position of a medical receptionist, in order to gain experience and broaden her knowledge in this area. The Evans Occupational Health Clinic is a busy medical clinic which operates on both an appointment systems for medical assessments, and as a walk-in clinic for injury assessment and treatment. Mrs. McKenney's duties were very capably performed and consisted of: -the filing of patient charts -telephone work, which included answering the phone, taking messages, paging staff or transferring phone calls, booking appointments and general answering of patient questions. -opening and sorting incoming mail and listing all cheques coming in. -typing up new chart covers for patients -putting incoming test results onto the correct patient charts and giving them to the physician to review. -typing up envelopes for information to be sent out to client companies. -photocopying of various information. She also observed the billing procedures we use, which is the ABEL computerized billing package. Sincerely R.N., C.C.O.H.N Manager In April of 1990 the grievor was in fact given notice of lay-off effective the end of that term. At the end of June, however, Shirley Harrison retired. The College decided to handle the caseload for the fall of 1990 through the use of faculty from the Health Sciences Division to teach the "medical" courses, and through the advertising of both full- and part-time contract positions to teach the more basic "secretarial" ones. The areas indicated in the ad were keyboarding; document formatting; legal secretarial procedures (Corporate real estate and litigation); medical terminology; Forkner shorthand; introduction to business organizations and career planning for executive, legal and medical fields; and secretarial applications on a microcomputer using DOS, Display Write 4, Word Perfect 5.0 and Lotus 1-2-3. The ad expressly set out the requirement that candidates have a minimum of 5 years related and progressive secretarial experience and, in the case of full-time contract positions, the ability to teach a variety of courses. The ad further indicated that prior college teaching, industry training experience and related post-secondary education were considered to be desirable. The grievor wrote to the employer indicating her interest in these positions but was advised by letter at the end of July that, since she did not have the required qualifications, her lay-off status would remain unchanged. That led to a grievance on behalf of Mrs. McKenney that found itself before Professor Carter. In his award of April 8, 1991, dismissing the grievance, the arbitrator wrote: The evidence in this case clearly indicates that the employer's teaching needs were primarily in the areas of keyboarding, word processing, and office administration. Given these operational requirements, I am convinced that the employer did not organize its teaching assignments with the purpose of defeating the grievor's rights under the collective agreement. The fact is that there were only two courses being offered (Medical Science 2 and Introduction to Business and Careers) that fit comfortably with the grievor's competence, skill and experience and these two courses fell short of a full teaching load. On the evidence, therefore, I must conclude that the arrangement of teaching loads was dictated by the employer's operational requirements and, as a result, the employer was under no obligation to re-organize these teaching loads in order to create a full-time position to fit with the particular skill, competence, and experience of the grievor. This conclusion still leaves the question of whether the grievor had the skill, competence, and experience to meet the requirements of the two sessional positions that were created. The one sessional position comprised the teaching of three sections of Keyboarding and Document Formatting and two sections of Keyboarding Basic while the other sessional appointment comprised the teaching of two sections of Office Procedures and Listening Skills and four sections of Keyboarding Basis. It is against the requirements of these two positions that the grievor's skill, competence, and experience must be measured. (Pages 4 & 5) And then: The central question in this matter is whether at the time the two sessional appointments were made the grievor had the skill, competence, and experience to teach the courses that comprised either of these two sessional appointments. The problem for the grievor is that the teaching of keyboarding comprised the most significant part of each of these two sessional appointments and yet the grievor's typing skills and experience was very limited. In fact, the grievor had only taken one introductory keyboarding course from the Peel Board of Education in 1984 and her subsequent keyboarding experience was limited to typing exams and review sheets and, more recently, the typing of chart covers and envelopes during the one day a week that she worked at the Evans Medical Clinic during three months in early 1990. (Emphasis added) At page 6, Professor Carter summed up his conclusions as follows: In a case such as this the onus is on the grievor to establish that she has the skill, competence, and experience to meet the requirements of the appointment. While I am convinced that the grievor is an able teacher, I am not persuaded that she had the necessary skills and experience in keyboarding to meet the teaching requirements of even the basic keyboarding course. One may not have to excel in an area to be a competent teacher but, on the other hand, to be an effective teacher one still needs to bring to a course significantly more experience than the students being taught. It may be that the employer's requirement of five years related and progressive secretarial experience was too steep a requirement for the teaching of basic keyboarding but, given the grievor's very limited experience with keyboarding, I am still not convinced that she has the competence, skill and experience to meet the requirements of the two sessional positions that were created. This conclusion, however, should not be interpreted as any reflection on the grievor's abilities as a teacher since it is based only on the consideration that, even for basic courses, there should be some significant gap between the relative skills and experience of teacher and students. It is for this reason that I have concluded that the grievor has not established a breach of the collective agreement and, therefore, this grievance is dismissed. Prior to Professor Carter's award even issuing, however, the grievor recognized the need to expand her skills, particularly in the fast-growing area of computers. Taking advantage of the training provisions incorporated in the collective agreement, the grievor took two courses from the Information Services Department at Humber, the first one in September of 1990, being "Introduction to Personal Computing". That was a basic primer course, focusing largely on WordPerfect, and corresponding in rough terms to the "Introduction to Office Systems" course given to students in the first year of the Office Administration Department's secretarial courses. The grievor, we now know, obtained a grade of 76 on that. In January of 1992 the grievor took a second course, "PC Word Processing", described in the Course Outline as follows: The course introduces the student to the use of the WordPerfect word processing package. All major features of the software will be covered including entering and printing a document, editing, document formatting, search and replace, newspaper style columns, mail merge, and spelling checking. The grievor indicated she had a "tough teacher" there, and did a lot of extra work on the course using her own PC at home. In that course the grievor received a mark of 63. That took matters to the end of the January-June semester of 1992. Carol McCanse, the only remaining full-time faculty person in the course, had sought early-retirement approval but had been denied. Through the intervention of the Dean, however, that approval was ultimately granted, but not till that school year had come to its conclusion. The College's main witness, and the management decision-maker in this matter, was Ken Simon, the then-Chairman of the Department. Mr. Simon testified that by the time the retirement of Carol McCanse had gone through, all of the faculty members had left for the summer, and to constitute a Selection Committee he would have had to bring someone in at premium pay. It was decided, therefore, to leave the filling of McCanse's position to January of 1993, and to cover off the fall term assignments by way of further contract positions. The grievor, in the meantime, had learned of the retirement of Ms. McCanse, while working once again as the full-time Charge Physiotherapist at the Evans, and wrote to the College as follows: July 1, 1992 1033 Fair Birch Drive, Mississauga, Ontario L5H 1M4 Ms Nancy Hood, Director, Human Resources 205 Humber College Blvd., Etobicoke, Ontario, M9W 5L7 Dear Ms. Hood. I wish to confirm my continued interest in being recalled to a position in the Office Administration Department, Medical specialty. Over the past few weeks, I have been made aware of the job postings for faculty to teach several medical courses, especially since the retirement of Mrs. Carol McCanse. Enclosed is an updated resume which will replace a June 1991 version currently on file with Human Resources. It should be noted that since my lay-off, I have acquired credits from Humber College, Information Systems Department in Personal Computing and advanced Word Perfect courses. In addition, these courses have provided me with additional keyboarding experience. My current position has allowed me to remain in a medical environment and has provided valuable management experience in terms of office procedures and medical treatment procedures. It is my belief that my seven years of teaching experience at Humber College is a valuable resource which is being wasted in terms of the quality of education currently offered to the students in the Medical specialty programs. Please consider this letter a sincere request for your consideration and that of the Office Administration Department. Yours sincerely, Barbara McKenney The grievor's responsibilities at the Clinic were along the lines of her full-time stint there previously, except that she now had a Physiotherapy Aide that she hired working under her as well. There was no single Office Manager this time, and each area was responsible for its own administration. A second medical secretary had been hired to take over the OHIP billing full- time, and to provide supervision of the Receptionists. By that point the Clinic had gone to a computerized program for OHIP billing called ABEL, and the grievor was familiarized with that so that she could supervise the secretary, and follow up any claims that came back unpaid. The grievor testified that she found the switch to the computerized program an easy one, given that it was all menu-driven, and one only had to type in the appropriate codes. The key, the grievor added, was familiarity with the huge OHIP Manual, and the grievor already had that. The grievor also noted that the ABEL package was not significantly different from the software package being used to teach OHIP at the College. Mr. Simon testified that some discussion took place over the grievor's request to Human Resources, but on a review of the file documentation it was felt by his department that the grievor did not have the skills to be of assistance. The grievor accordingly was responded to as follows: Dear Ms. McKenney: Further to our conversation of July 22, 1992 on the subject of your recall to the College, I wish to confirm the following: •There are no vacant sessional or full-time positions at present for which you have the competence, skill and experience. •At your request, I have submitted your resume for competition in connection with the part-time/ partial load courses in your field. •The position that Carol McCanse occupied prior to her retirement is scheduled to be filled in January 1993. The School of Business holds the view that you do not meet the necessary requirements to fill that position. Yours truly, Hyacinth James Human Resources Consultant The College then proceeded on the course it had embarked upon for the advertisement of "contract" positions, the said posting for those positions reading: SUMMARY OF DUTIES: To teach secretarial courses in the following areas: keyboarding; document formatting; introductory and executive secretarial procedures; concepts and applications on a microcomputer using DOS, WordPerfect and dBase software; Forkner notetaking theory and applications; medical terminology and applications for transcribing taped medical dictation. QUALIFICATIONS: Comprehensive knowledge of current secretarial procedures and applications combined with relevant post-secondary education and progressive experience directly related to the course objectives. Previous College teaching or industry training experience desirable and in the case of sessional appointment, the ability to teach a variety of the above-named courses. Ability to operate successfully in a culturally diverse academic environment. The grievor was not successful in obtaining any position for the fall of 1992, and on September 5th, 1992, her recall rights expired. In October of 1992 Ms. McCanse's full-time position was advertised, and that advertisement read: Competition No. : 92-097 New Position : no Replacement :yes For : Carol McCanse Job Title :Professor Program :Office Administration/Medical Division/Department Campus : School of Business: North Reporting To Required by :Chair: January 1993 Salary: Academic start salaries are determined by qualifications and years of related experience as detailed in the current Collective Agreement for Academic Employees. SUMMARY OF DUTIES: To teach Office Administration medical courses including procedures, terminology and transcribing taped dictation in a simulated office environment, together with a complement of office management and introductory secretarial courses. POSITION #20685 QUALIFICATIONS: Comprehensive knowledge of theory and current practice in the medical office administration field, including microcomputer applications in advanced word processing and OHIP billing. Relevant post-secondary education combined with progressive experience directly related to the course objectives. Previous college teaching or industry training experience desirable. Humber College is committed to Employment Equity. OPEN DATE: October 19, 1992CLOSE DATE: October 27, 1992 Out of all of that came the present two grievances now before us, grieving the failure of the College to award the grievor a sessional position in the fall of 1992, and ultimately a full- time one. The Union's initial position was that this whole saga relating to the expiration of the grievor's recall rights was characterized by bad faith and manipulation on the part of the College, and more fundamentally, that the grievor was qualified to perform the positions available. The College in fact never did fill a position in this Program on a full-time basis (the October posting was pulled back at the direction of senior management), and the Union takes issue with that as well. The relevant provisions of the collective agreement read: 27.09 A To assist persons who are laid off, the College agrees to the following: (i)Such a person may take, tuition free, one program or course offered by the college, for which the person meets the normal entrance and admission requirements. In addition, the College shall consider and implement such retaining opportunities as the College may consider feasible. (ii)Before the College hires a sessional employee, a person who has been laid off under 27.06 within the last twenty-four months and has not elected severance under 27.10 A shall be offered the sessional appointment provided that the former employee has the competence, skill, and experience to fulfil the requirements of the sessional position concerned. The applicable salary for the duration of the sessional appointment shall be at the current salary rate, at the step level in effect at the time of lay- off... 27.09 B Before hiring full-time employees, an individual who has been laid off under 27.06 will be recalled to that individual's former or another full-time position, provided that the individual has the competence, skill and experience to fulfil the requirements of the position concerned. Such recall entitlement shall apply during the period of two years from the date of lay-off. 2.02 The College will give preference to the designation of full-time positions as regular rather than partial-load teaching positions subject to such operational requirements as the quality of the programs, attainment of the program objectives, the need for special qualifications and the market acceptability of the programs to employers, students, and the community. 2.03A The College will give preference to the designation of full-time positions as regular continuing teaching positions rather than sessional teaching positions including, in particular, positions arising as a result of new post-secondary programs subject to such operational requirements as the quality of the programs, enrolment patterns and expectations, attainment of program objectives, the need for special qualifications and the market acceptability of the programs to employers, students, and the community. The College will not abuse sessional appointments by failing to fill ongoing positions as soon as possible subject to such operational requirements as the quality of the programs, attainment of program objectives, the need for special qualifications, and enrolment patterns and expectations. From the outset of his evidence Mr. Simon spoke about his "vision" for the various secretarial- administrative programs under his direction. That vision essentially was to move away from teaching the various courses of, in particular here, the Medical Secretary Program, in isolation, and rather to combine them with and around the Procedures course, so that all courses would be taught in a "simulated environment", using the hands-on application of the students' individual computers. On that basis the Medical Sciences courses taught by the grievor, for example, would no longer be availabe as stand-alone courses, but rather would be collapsed into the "core" Medical Secretarial Procedures courses, and all taught as one. Reflecting feedback from graduates and later the Faculty Review Committee, the students were to be exposed to the most recent developments in the use of computer software, and, through instruction in a simulated setting, would become comfortable in carrying out their various secretarial/administrative functions across a broad spectrum of doctor's, clinical and hospital offices. In any future hirings, Mr. Simon testified therefore, the College would be looking for people with the advanced technical skills to be able to teach the Procedures and surrounding courses as one, and to offer students support and correction with respect both to any keyboarding as well as to computer- operating problems. Mr. Simon was aware of the grievor's teaching experience in the Department in delivering the Medical Science, Medical Machine Transcription and, from time to time, the Medical Field Placement courses. Reviewing the grievor's resume in the summer of 1992, however, and on the basis of what he knew of her, Mr. Simon was of the view, as he put it, that the grievor's "overall ability to deliver the Medical Secretarial Procedures course is grossly inadequate". While Mr. Simon testified that he feels a responsibility to faculty to offer them the training and upgrading opportunities to keep their skills current, as was done with the various faculty members in the past, for example, the difference with the grievor, as he saw it, was that she simply "lacked the basic skills to build on". Going through the Course Outline for Medical Secretarial Procedures 2, for example, Mr. Simon testified with respect to "booking" and "telephone communication" that this entailed avoiding errors in the arranging of appointments and developing a good telephone style, as well as prioritizing patients. He testified with respect to the grievor that there was "no evidence of any [such] experience from what I've read", and that he assumed with the amount of staff at the Evans, for example, that this would have been handled by others. With respect to OHIP billing, Mr. Simon testified that this is critical to a doctor's office and that there was "no evidence Barbara had done any of this". Referring to the brief 1990 letter of reference from the Evans (when the grievor had gone back to do the volunteer work on reception), Mr. Simon said that he took it from that that the grievor had no "hands-on", direct experience with billing OHIP on her own, and that with respect to her previous work there generally, time would not have permitted her to get involved in OHIP billing in any event. Asked on cross-examination about his concerns in the area of Workers' Compensation, Mr. Simon testified that the Department was looking for a level of expertise that would allow someone to act as an advocate for the patient, and that he had no knowledge of what the grievor's 7 1/2 years' experience with Workers' Compensation actually involved. On the preparation of medical reports, Mr. Simon testified that the emphasis in the Procedures course was on the formatting, not the substance, and that he could see from the grievor's own work [referring to the 1986 and 1988 research papers tabled in evidence, as well apparently, to minor errors in the grievor's letter of July 2, 1992] that she was simply unqualified in this area. On the next unit, the question of Professional Associations, Mr. Simon was only prepared to say that there were "certain areas lacking" in the grievor, and that, on the second item there, there was no evidence she had ever made travel arrangements. The final unit has to do with the preparation of Reports, again, particularly with respect to the specialty areas, and Mr. Simon's comments with respect to this were similar to those made above. Pat Hudson, the co-ordinator for the program and a member of the bargaining unit, was called to give evidence for the College as well, and she supported Mr. Simon in the impressions he had of the grievor. Ms. Hudson's perception of the responsibilities carried out by the grievor over the course of her years at the Evans, however, appeared to be grounded solely in the 1990 letter of reference (again, when the grievor was simply "volunteering" as a "receptionist"), as well as Ms. Hudson's own limited visits to the Clinic (and noting what other staff it had) in conjunction with the field placement program. Ms. Hudson stated in even stronger terms than Mr. Simon the importance of the OHIP and Workers' Compensation element in the overall Medical Secretarial Procedures course, representing, as she put it, "nearly half of it", and acknowledged she was surprised to learn through this hearing of the grievor's prior experience with it. More broadly Ms. Hudson noted that it was "not up to her who the College would interview" on the basis of the documentation submitted, and that she assumed it was the Chair, in his dealings with Human Resources on the file, that would have been "more abreast of any changes or developments". Ms. Hudson testified later than Mr. Simon in these prolonged proceedings, and was able to provide additional insight into the current status of Mr. Simon's "vision" for the program (which she concurred in). Mr. Simon himself testified that he had been somewhat stymied in implementing the changes he had envisioned. The whole Program area was under review in the 1992-93 period, and Mr. Simon testified that he was directed in the fall of 1992 not to fill any full-time positions until some decisions could be made on the Review recommendations. When Mr. Simon testified during the winter term of 1994, implementation of his new structure was still pending, with plans hopefully to move ahead in the fall. In June of 1994 when Ms. Hudson came to testify, however, Mr. Simon had been moved elsewhere, and the new Chair had temporarily called a halt to any further changes. That really applied to the third and fourth semesters of the Program, Ms. Hudson explained, since a certain element of change had been implemented for the second semester as early as the fall of 1993. That involved the combining of the Medical Science and Medical Machine Transcription courses, and the transfer of 2 hours of those courses' former time to the Medical Secretarial Procedures course, to be used for expanded software applications. There are, in the foregoing, a number of elements that raise matters of concern for the board. The first is the decision in the summer of 1992 to defer the filling of a full-time vacancy until the Winter 1993 semester. With the grievor's recall rights expiring in September 1992, it is perhaps that decision more than anything else that gave rise to the "bad-faith" allegation in these grievances. We do not find any support for that bad-faith allegation. Neither, however, do we find the cost of establishing a Selection Committee in the summer as sufficient grounds for ignoring the commitments made by the employer in what are now Articles 2.02 and 2.03 of the collective agreement - particularly where the direct effect as here is to extinguish the remaining recall rights of a long-time employee in the Department. That is not the kind of "operational requirement" those Articles of the collective agreement contemplate, in granting to an employer a measure of practical latitude. As arbitrator Brown put it in Fanshawe College : Donaldson & Bucek, an award of January 1987, at page 29: ... If a layoff was required, the provisions for that action are contained in the collective agreement and could be applied by the College, but for the filling of the vacancy which existed as at the date of Mrs. Bulsza's resignation in a full-time complement position, we find Appendix 3(2) [as it then was] clearly directs the College to act by way of preference for a full-time replacement. And further, in view of the nature of "cost" dealing with a second full-time vacancy in that case, at page 33: ... The question of cost in that procedure is not dealt with by the parties in the agreement and therefore is not relevant or determinative of this issue. On the facts here, therefore, the board would find the grievor entitled to relief for any prejudice suffered as a result of the College's decision to delay. Nor is it a simple answer for the College to say that an administrative decision ultimately was made not to fill the full-time position at all: once again the provisions of Articles 2.02 and 2.03 narrowly restrict the right of the College to do that. The matter accordingly is to be looked at from the perspective of the situation as it initially existed for the College in the summer of 1992, when, on the Department's own assessment and view of the matter, it had a full-time vacancy to fill in the wake of the retirement of Carol McCanse. And the more relevant section, therefore, under the "Post Lay-off Considerations" of Article 27 of the collective agreement, is Article 27.09 B, which once again provides: 27.09 B Before hiring full-time employees, an individual who has been laid off under 27.06 will be recalled to that individual's former or another full-time position, provided that the individual has the competence, skill and experience to fulfil the requirements of the position concerned. Such recall entitlement shall apply during the period of two years from the date of lay-off. Clearly Article 27.09 B does not, in the words of the College's Suncor case, provide upon the occurrence of a vacancy an "absolute right" to claim the position. What it just as clearly does provide, however, is a right to serious consideration, before recall rights expire and the relationship of that employee within the employer is severed in toto. There are, of course, explicit qualifications as to "competence, skill and experience" still to be met. But the College is not entitled under this clause to hold the applicant employee up against some potential, ideal candidate that might be available for hire, and ask her to demonstrate a relative measure of equality. Against outside candidates, this is not a "competition" clause. Nor are cases involving internal competition clauses relevant here: for example, Fanshawe College : Tureck (decision of H.D. Brown issued September 18, 1986); Fanshawe College : Gerster (decision of J. Samuels issued April 13, 1988). St. Clair College : Barei (final award of D. Carter issued October 17, 1989) did deal with a "threshold" type of clause, and stated, at page 6: On the evidence presented at the hearing we have no reason to doubt that the grievor was other than a competent and skilful teacher who if given sufficient time could have fulfilled the requirements of the position. Nevertheless, we are not convinced that at the time of her lay-off the grievor has the required experience to fulfil the requirements of the position at the time it was being claimed. The arbitrator did, however, go on to note that there was, at the same time, "little hard evidence" there that the grievor could meet the qualifications of the position. A further example of that, of course, was Professor Carter's award on the 1990 grievance filed by the present grievor, and discussed above. Professor Carter also noted there that the employer is not: ... obligated to custom tailor a full-time teaching position at the expense of its operational requirements. (page 4) More broadly, however, Professor Carter noted in the paragraph as a whole: My own reading of the collective agreement is that it does provide some protection to the employee against the employer organizing its teaching work loads so as to thwart the rights of a laid-off employee under the collective agreement. If it is possible to arrange a full-time teaching load within the constraints of the employer's operational requirements, then it would be a breach of the collective agreement to fragment that workload through the use of partial-load teaching positions. This conclusion, however, does not mean that the employer is obligated to custom tailor a full-time teaching position at the expense of its operational requirements. The employer's obligation under the collective agreement is only to create a full-time position where the creation of such a position is consistent with its normal operational requirements. Further to the other cases relied on by the College above, in Niagara College : Martin (decision of Mr. Brown released October 31, 1989) the requirement was clearly recognized on a grievor to demonstrate by the evidence even under such a clause as this that he or she is capable of "stepping into the shoes of the incumbent as it were" (page 9); there it was a question of bumping or displacement, and the award at page 8 goes on to note, along the lines Professor Carter does in the Humber : McKenney case: The [St. Clair] Carter award did not define the position in terms of future teaching assignments which would not be set by the College at that time for the entire academic year. If that was to be the criteria, it would be possible to defeat the seniority rights of the laid-off employee by structuring future courses in a manner which would effectively prevent that employee from exercising the displacement rights under Article 3.05 (b). What is peculiar to the present case is that, at the point where the grievor in the summer of 1992 was to receive "serious consideration", the entire Program (on the Medical side) was open to re- assignment, with the departure of the last of the remaining full-time faculty members. Fundamentally, Mr. Simon appears at that point to have proceeded on the basis that the way was now open to recruit for the Program afresh, with his own vision of the future as a guide. But there are a couple of problems with that perspective. In the first place, Article 27.09 B (as well as A) and the grievor's recall rights were still operative. And secondly, in that regard, there was still a gap at that point in time - and for an unlimited period to come as it turned out - between Mr. Simon's teaching concept for the Program, and what would actually be in place. The other problem with the case on the College's side, as becomes apparent from the evidence, is the judgment of the College not to accord both itself and the employee the benefit of an interview, based on her prior teaching experience and the work-history documentation on file. This is a case where the employee's teaching experience had been in that very Department, and one would have thought that there were sufficient indications of relevant experience in the grievor's overall resume and letter of July 1992 to at least raise the matter to the level of further inquiry. The grievor was, after all, not someone new simply inquiring from off the street. While the 1990 letter of reference was admittedly a shallow one, pertaining to her attempt to gain further "junior-style" exposure on a volunteer basis, the grievor's 1992 letter indicated a subsequent return to a full-time position and "management experience". And her original resume noted her involvement during the 1979-84 full-time stint in "office procedures and management" as well. The problem in the end with the decision by the College not to develop this information further is that it led to a seriously-flawed understanding of the grievor's actual background. That was particularly true with respect to OHIP and Workers' Compensation, and by management's own evidence those were the kinds of areas that were of maximum importance in the Procedures courses. There is, in fact, only one area of substance where the grievor acknowledges that she did not have any experience or qualification, and that is in the Accounting Unit. The evidence of Carol McCanse, however, is that the bulk of the "Accounting" function is taught through the Business School, and to be able to present the one Unit required to be taught by herself, Ms. McCanse (who also had no prior experience) went to a simple Book-keeping text. Ms. McCanse added that the Medical Secretarial procedures course is "not a typing" or a formatting course: the students are supposed already to have covered that, and any individual problems can be dealt with through the peer tutor program or special skills- building courses. And the grievor, on the evidence, did handle the Machine Transcription course, using Display-Write 4, without difficulty. Further, it might be noted, all of this focuses on the Medical Secretarial Procedures course alone (which the Union did claim the grievor to be qualified to teach). On the broader question whether, on the structure of the caseload as it existed a full-time position might reasonably be available to the grievor, in accordance with the College's needs, we would simply observe that, in addition to Medical Sciences and Machine Transcription, the grievor also had delivered the Placement course, and was found by Professor Carter (as would we) to be qualified to teach the "Introduction to Business Careers" course. We do not have the information to judge that broader question, however, and that was not the direction of the case. What we have been satisfied of is a failure of process here, insofar as the College, on the information before it, failed to follow up and apprise itself of the full extent of the grievor's qualifications in a reasonable and objective way. That constitutes a failure on the part of the College to live up to its commitments under Article 27.O9, and thus is in contravention of the collective agreement. In terms of remedy, we are not dealing with a "competition" clause or multiple applicants, and were we satisfied on the evidence of the grievor's readiness as of her application date to teach the courses taught, for example, by Ms. McCanse, we would have no hesitation in awarding her the position as an appropriate remedy. The difficulty with this case is that, even with all of the evidence now in, it cannot clearly be said that the grievor has met that kind of evidentiary onus on her, as articulated by such cases as Niagara College and St. Clair College above. The workload pointed to by the Union as available did include the Procedures course, and there remain questions in the case concerning the grievor's current place on the spectrum of computer skills. Indeed, in the absence of specific consideration being given to "re-training" during the period of recall rights under this collective agreement, being "close" for a grievor would, as the cases indicate, not be good enough, and would not prevent the grievance from being dismissed outright. The grievor, with respect to those computer skills however, was not, in the vernacular, "nowhere", or there still would be nothing for the College to consider here. She did handle Display-Write, and was able to teach the course in it without apparent difficulty. But on the other hand, as of 1990 the Computer course she took was, as the grievor acknowledged, purely "basic", and on the more advanced one in 1992, as the evidence discloses, her grade was still only 63. To put that in perspective, the qualifying mark for even the "peer tutor" program, we know, is 80. It is clear, therefore, that for the Procedures course itself the grievor would still appear to have had more work to do, to create the appropriate "gap" between teacher and students. In the end, therefore, we are back faced with a failure in process, resulting, critically for our purposes, in what can be seen to be a partial consideration only of the grievor's overall qualifications and experience. Article 27.09 A (iii), it should be noted, does not limit the opportunity for further upgrading, where it is considered appropriate and "feasible", and Mr. Simon testified as well about the obligations the College feels in regard to the professional development of its staff. There are also things that the grievor might have been able to do on her own. What options might have been considered, had the grievor and the College sat down in 1992 to objectively discuss her qualifications, on the basis of the course structure that still did exist, and what she would have to do to be in a position to contribute that fall, we do not know. And there are, as discussed, simply too many uncertainties surrounding the grievor's qualifications for the board on its own to conclude that the grievor was entitled to a position in the fall of 1992, and to damages from that point. What the grievor lost here was the opportunity to be considered, on her full qualifications, for the appropriateness of further upgrading. In all the circumstances it seems to us that the only appropriate remedy (apart as discussed, from granting the grievor temporary relief on the expiry of her recall rights) is to require the employer to re-do the process, in a way that more properly accords with the obligations owed to an employee in the grievor's situation under the provisions of Article 27.09. Beyond that it is difficult to turn back the clock, so that our direction to the employer is to review with the grievor the possibility of her meeting the College's needs by way of a full-time position in September of 1995 (or January of 1996, if mutually agreed or otherwise ordered by the board), on the basis of: -the grievor's overall work and teaching experience (on a similarly current basis; -the actual courses being presented by the Department in the fall; and -the possibility of further training for the grievor, as discussed on the previous page, should the grievor otherwise be seen to be close enough in the necessary skills to make such an endeavour realistically useful. Given the full history of this matter, the board is not prepared to abandon it solely to that just- described process, but rather will remain seized in all aspects of implementation of the board's order, should the parties fail to arrive at an agreed-upon conclusion. The board would only add, for the sake of clarity, that should the College in carrying out the board's direction not find it appropriate to recall the grievor, and the board is called upon to decide the matter and rules in the grievor's favour, at that point the issue of damages against the College would arise, for the period September 1995 forward. Dated at Toronto this 11 day of May, 1995 M.G. Mitchnick I concur B. Switzman I concur F. Cowell