HomeMy WebLinkAboutEllis 96-01-08IN THE MATTER OF AN ARBITRATION
B E T W E E N :
SHERIDAN COLLEGE
(THE COLLEGE)
A N D :
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
LOCAL 244
(THE UNION)
AND IN THE MATTER OF THE GRIEVANCE OF MS. M. ELLIS - 94E133
BOARD OF ARBITRATION:
HOWARD D. BROWN, CHAIRMAN
M.J. SULLIVAN, UNION NOMINEE
R. GALLIVAN, COLLEGE NOMINEE
APPEARANCES FOR THE COLLEGE:
D.K. GRAY, COUNSEL R. SPARGO, ASST. DIR. H.R.
APPEARANCES FOR THE UNION:
ODETTE SORIANO, COUNSEL
MARG ELLIS, GRIEVOR
N. SIBBICK
GRANT BRUCE
RON MARTIN
MIKE WALSH
A HEARING IN THIS MATTER WAS HELD AT OAKVILLE ON MAY 17, 1995.
AWARD
The grievance dated April 18, 1994 was filed under the terms of the collective agreement in effect between these
parties at all material times and is a claim that the dates of December 20, 21, 22, 23 and 24, 1993 and January 3,
1994 which were used by the College as Social Contract days should not be considered as unassigned development
time. The Grievor stated in her grievance;
"It is my understanding that these six unpaid leave dates were to be deducted from my in-class days,
thereby reducing my academic year to 37 teaching weeks (as opposed to six days being tagged on at the
end of the year)."
The Grievor requests that her teaching year be reduced by six days or that she be remunerated at the overtime rate
for six days.
The College is covered by a Fail-Safe Program developed under the Social Contract Act by the Ontario Council
of Regents. Section 4.1 thereof requires that employees take six unpaid leave days in the period ending March 31,
1994. In addition, by Section 4.2, employees may be required to take up to twelve unpaid leave days during the
periods ending March 31, 1995 and March 31, 1996. The Grievor is a Professor in the non-post secondary area at
the College and was required in the 1993/94 period to take six unpaid days of absence but in the Union's
submission, the Grievor did not get a commensurate reduction in her workload during her teaching period. The
classes to which the Grievor would have been assigned in the week in which leave was taken were cancelled but
these classes were added to the end of her teaching period so that the Grievor was required to teach an extra week at
the end of her regular teaching period. That is set out in Article 11.03 as 10 months in duration extending from
September 1st to the following June 30th. Article 16.01 B provides that an employee is granted a holiday period of
December 25th to January 1st without loss of pay. By Article 11.01 B 1, the total workload assigned to a Professor
shall not exceed 44 hours in a week up to 38 weeks "in which there are teaching contact hours in the case of
teachers not in postsecondary programs". It is further stated in that Article that:
"The balance of the academic year shall be reserved for complementary functions and professional
development."
The classes taught by the Grievor are continuous intake courses with no strict beginning or end and students start
and complete their courses at different dates. The Grievor however, starts in the first week of September and ends
39 weeks later excluding the Christmas period. It is the time attributable to the Social Contract days of leave that
the Grievor expected to be deducted from her workload to reduce her teaching period which would have ended in
the third week of June 1994. The days of leave were however added to the end of that teaching period so that the
Grievor's teaching period ended July 1st. After the end of classes, she was assigned non-teaching duties. In the
Union's position, the Grievor's workload was not reduced in accordance with her loss of pay for the six days in the
1993/94 academic year.
The Grievor has been employed at the College in the Skills Development Division for 19 years as a Professor in
the non-post secondary area teaching mostly computer-related courses which are continuous intake through the year
subject to available space. Students work at their own speed and at any level in the program which is not structured.
The Grievor's complaint is that the six days of unpaid leave of absence under the Social Contract Act which she
took in December and January as charged to development time and tacked on to the end of her teaching period. It
was her understanding that these were days out of the classroom and not assigned development time. Her duties as
a Professor are described in the class definition in the collective agreement and there is no issue in this grievance
that the workload has been assigned contrary to the collective agreement by the College. Her SWF covered the
period September 6, 1993 to June 10, 1994 but was extended to June 17 because of the six days' leave of absence
and because of vacation was further extended to June 30, 1994 which was the end of her teaching period. The non-
teaching period at the end of the teaching period in June usually involves faculty meetings to decide what will be
worked on in that period and what courses to be taught and for preparation and development in the summer. This
involves training on software, preparing course outlines, test materials, updating existing programs and currently
was working on the new software package. She said that her teaching period taking into account the leave of
absence and vacation should have ended June 30, 1994 but if her thirteen vacation days was included, her teaching
period should have ended June 24th but because of the addition of the Social Contact days, it ended at the end of
that month.
The Grievor said the College decided how to reach the target as required under the Act and the particular days
which she took were suggested to her in October and were accordingly scheduled and classes on those days were
cancelled. She agreed to take those days as indicated on the memo dated October 26, 1993 to Ms. Adams. She
understood that she would thereafter only be teaching 37 weeks in that the class days were reduced by six. At a
staff meeting in November, she learned that the teaching period would be extended and not reduced from the
assigned teaching days. It was explained that the Social Contract days were to be treated as unassigned
development days. By memo dated April 13, 1994, in response to the Grievor's memo dated April 6th, it was stated:
"It is my understanding that those days have been taken on those indicated dates. As far as directing you as
to how the time should be treated, those six (6) days will be taken from part of the normal unassigned
development time."
She said there was no direction as to what was to be done in that non-development time. The teaching contact days
however, were added on to the end of her teaching period. Each of the professors are assigned by the Chair to duties
to be performed in the summer which is a separate period from vacation time but usually extends into their
vacation. In that year, she was involved in a keyboard project and redid course outlines and testing materials as
indicated in Ms. Newman's memo dated June 14th. Subsequently, in July, she was requested to prepare a proposal
for the Peel Region Nurses for data entry which she felt she was obliged to do during her development period but
worked mostly at home and that project took most of the summer to complete.
The Grievor agreed that as an employee in Group 2 she can be assigned up to 20 hours teaching in a
week to a maximum of 38 weeks in a year and in each week can be assigned 44 workload hours including
teaching contact hours and with complementary functions with a minimum of five hours. In addition to
the teaching weeks, there are non-teaching hours in the academic year. She is entitled to a vacation of 45
days in the year normally in July and August. During non-teaching periods, the Grievor performs a
number of things including course outlines, dealing with supplies, introductory and testing materials and
other projects to update the needs in the department. She had read the posted Fail-Safe Program in the fall
of 1993 and was advised by Mr. Matthews, Director of Human Resources by memo dated September 15,
1993 as to the implementation of the terms of the Act, part of which indicated that the employee was
"eligible to take six days of unpaid leave prior to March 31, 1994. They should be scheduled by mutual
agreement between you and your supervisor."
It was agreed that the Grievor would take the six Social Contract days on December 20, 21, 22, 23, 24, 1993 and
January 3, 1994. There were faculty meetings to discuss the Program but she did not have any clear recollection but
knew that no work was to be performed on the days of these leaves of absence. No one said that there would be less
than 38 teaching weeks in the academic year as a result but she knew that the six days of absence had to be taken
before March 31, 1994.
Shirley Adams, who is now retired but at the time of the grievance was Chair of the Burlington Campus in the
Retraining Division and the Grievor's Supervisor, said that the faculty in Group 2 which included seven full-time
professors who reported to her had a teaching load of 38 weeks in the continuous in-take courses. If the dates were
shortened, then there would be development or vacation time interspersed. The Fail-Safe Program was posted on
September 1, 1993, meetings were held with the faculty in the Main Campus when it stressed that no work would
be asked of any of the faculty on the leaves taken under the Act and no work would be made up. All of the faculty
had to take unpaid leave with agreement with the individual teachers as to when it would be taken. She did not
suggest to any of the faculty in her division that there would be less than 38 weeks of teaching in the year and had
discussed only the 38 weeks of teaching. The Grievor chose these particular dates in conjunction with a trip to
Florida so that she had a block of time which was agreed between them she would take as unpaid leave. The memo
of a faculty meeting on Tuesday, November 16, 1993 indicates that the Grievor was in attendance and that the
Social Contract days were discussed and at which it was indicated that those days would be "outside the 38
teaching weeks". The minutes of the meeting were posted. Noone after November 16th complained to her about the
38-week teaching period nor was that subject raised with her by the Grievor. The faculty were instructed not to do
work on their days of leave of absence taken under the Act and were told that those days would be suspended and
classes cancelled for that period.
Marty Humphrey, Chair of the Burlington Campus since January 1994 was not aware before April in that year of
any problem with the Grievor's days of absence under the Act and said that her complaint had been that she was not
paid for the six days on which she worked. The Grievor taught until June 3Oth and as she had taken two weeks of
vacation, the period was extended. By memo dated June 1st, the faculty was advised that any development time
should focus on updating Windows applications for WordPerfect 5.2 and Lotus 4 and it was expected that they
would be current to update those programs. There were no complaints from the faculty about that memo.
It is the submission of the Union that pursuant to Part 7 of the Act, the Employer may require its employees to
take unpaid leave of absence to a maximum of 12 days in each of 3 periods commencing June 14, 1993 to March
31, 1994, then to March 31, 1995 and 1996. There is no dispute that these are required days to be taken off work
and that there is no reference as to how the unpaid
leave days are to allocated. The Grievor agreed to take the six Social Contract days in the December to January
period during her regular teaching period and when the classes were cancelled on her understanding that these days
would be deducted from her teaching period. The College added the six days to her teaching period in June. The
note from Marty Humphrey dated April 13, 1994 indicated that the Grievor's 6 days of leave:
"will be taken from part of the normal unassigned development time".
There is no direction given to the Grievor as to what duties not to perform but a number of duties were assigned
to her in a non-teaching period which included a duty concerning Peel Nurses which did not refer to a duty of a
professional nature. As well, as she was involved in the preparation of courses and a keyboarding program all of
which took longer than the six hours provided in the non-teaching periods. It was alleged therefore, that there was
no reduction in the Grievor's teaching or non-teaching period to allow for her loss of pay as a result of the Social
Contract days of absence. The Grievor requests compensation in that there is no reduction in her teaching or non-
teaching periods following the six days' loss of pay. Reference was made to Re Trent University and Canadian
Union of Educational Workers, Local 8 ( Starkman, May 16, 1994); Re Northern College of ApPlied Arts and
Technology and Ontario Public Employees' Union. Local 653, (A Workload Resolution
award of James Morrison dated September 28, 1994). In that case, the arbitrator stated:
"In summary, the College does not have the unilateral right under either the Collective
Agreement or the Social Contract legislation to revise ratios and attribution formulas which
are the product of the collective bargaining process. The College is entitled to meet its
expenditure reduction targets by requiring its employees to take six days unpaid leave of
absence. But those leaves must be genuine. That is to say, they must result in a measurable
reduction in work performed. While some of the complainants have been assigned unpaid
leave days during teaching periods, there has been no reduction in teaching contact hours. I
find, therefore, that the College has violated Article 11.01 A of the Collective Agreement."
Arbitrator Starkman who dealt with an issue of whether the unpaid leave days identified in the Program under the
Act are unpaid leave days within its meaning and stated:
"In the case however of teachers, administrators, support staff and other salaried personnel,
it may not be clear that the taking of a leave day on a scheduled work day will necessarily
result in a reduction in the amount of work to be performed, as the necessary work may
just come to be compressed into the remaining available time...
If an employer were permitted to schedule unpaid leave days on days that an employee was
not otherwise scheduled to work, then an employer could schedule these days on
weekends, statutory holidays, regularly scheduled vacations or plant shutdowns with the
result that employees would receive less money on an annual basis, but would still be
required to do the same amount of work. In my opinion, by giving an employer the power
to force employees to take unpaid leaves of absence, it was not the intention of the
legislature to allow employers to continue business as usual. Rather, it was contemplated
that there would be some reduction in the amount of work being performed by employees
commensurate with the number of unpaid leave days such employees were required to
take. Thus while employees would receive less money, less work would be performed.
This was the trade-off for allowing employers to meet expenditure reduction targets by
imposing unpaid leave days on employees many of whom may have previously negotiated
rates of pay set out in the collective bargaining agreements."
It is the submission for the College that the Grievor was relieved from teaching on six regular work days on
which she was given unpaid leave in accordance with the Act which included the normal scheduled work days and
did not attend or do any work on those days. The parties treat non-teaching and teaching days differently under the
collective agreement with regard to the ability of the College to assign work in non-teaching time. It was held at
arbitration that the College did have the right to impose six days unpaid leave of absence in the first fiscal period
and indeed the Grievor does not challenge those dates as being in accordance with the Act and were scheduled with
mutual consent in accordance with Section 5.1 of the Program. Having done so, in its position, the enquiry as to a
reduction of workload is not relevant under the Fail-Safe Program or by statute. Once the leave period was
scheduled in accordance with that Section of the Program, the issue has ended. Nonetheless, it was submitted that in
November, the Grievor knew that the College would require 38 weeks of teaching as a result of the staff meeting
held at that time. By Article 11.01 F, complementary functions "appropriate to the professional role of the teacher
may be assigned to a teach by the College" which are attributed on a hour for hour basis with a minimum of five
hours or the 44 hour maximum weekly total. The teacher is allowed "at least ten working days of professional
development in each academic year" which can be used to upgrade the teacher's skills and that time is not affected
by the Act. The Grievor was not required to do work on the six days of her leave which she used for personal
purposes but had to teach for 38 weeks. Reference was made to Re Ontario Public Sector EmploYees Union and
Niagara College (Burkett, March 22, 1995); Re Cambrian College and Ontario Public Service EmploYees (Burkett,
January 31, 1995); Re Algonquin College and O.P.S.E.U., Local 415 (K.G. O'Neil, June 13, 1994)
In the Niagara College award, the Board dealt with a claim that professors were required to take unpaid leaves of
absence on days which they would not otherwise be teaching contrary to the Act and it was stated:
"Accordingly it is only if it is assumed that the equivalent of six days of non direct teaching
related work have been or will be eliminated that a finding can be made that the imposition
of six days of unpaid leave without a reduction in teaching contact hours is sanctioned.
Having regard to both the undertaking of the College and to the self assigning nature of the
working relationship, we are prepared to make the assumption in this case and with it the
tentative finding that there has been no breach of the collective agreement..."
In the present case, the unpaid leave days were scheduled on what otherwise would have been the Grievor's regular
schedule work days and which were scheduled by mutual consent pursuant to Section 5.1 of the Fail-Safe Program.
The definition of unpaid leave for the purposes of the Act is "the whole of an employee's regular work day". The
College did schedule unpaid leave of absence for the Grievor for six days on which she would normally have been
required to teach and did not. That was the reduction required by the Act and applied by the College in accordance
with the Fail-Safe Program. In our view, that does not affect the commitment under the collective agreement to
allow for 38 teaching weeks. The Trent award dealt with part-time teachers who are paid only for the days of
teaching but the College had designated other days than they would normally teach as unpaid leaves which was
found not to be in conformity with the Act.
It is clear that the concept was to reduce payroll costs in the fiscal periods referred to in the Act during which the
College was required to effect reductions. In the period ending March 31, 1994, during which the Grievor's leaves
of absences were scheduled, there was a reduction by reason of an unpaid leave as designed for the purposes of the
Act relating to the Grievor's regular working days which was consistent with the Program developed by the Council
of Regents under the Act requiring six unpaid leave days at each College in the first year which applied to the
Grievor. Once that had been achieved, and the unpaid leaves scheduled in accordance with Section 5.1, the purpose
for which the unpaid leaves were assigned was met and no other claim arises against the College as a result.
The simple proposition is that the Grievor was required to teach six less days than regularly scheduled in the
fiscal period ending December 31, 1994. That was the reduction of her workload commensurate with the reduction
in her pay referred to in the awards referred to above. The Grievor was relieved of her duty to teach on each of the
days of her leave assigned in accordance with the Act and covered what otherwise would have been regularly
scheduled work days. The Grievor sought to extend that claim into the following fiscal year set out in the Act in
order to assert a reduction of her teaching workload in the academic year based on the terms of the collective
agreement but which continued into the next fiscal year under the Act. The effect of the teaching year had thereby
been affected by the statutory terms and the Fail-Safe Program resulting therefrom. The six days of unpaid leaves of
absence which were assigned by the Colleges pursuant to the Act in the first fiscal period ending March 31, 1994
was upheld at arbitration.
Having applied that provision in the Fail-Safe Program to the Grievor whose leave of absence was scheduled in
place of her regular teaching days, we find that the College met its statutory requirements and accordingly was not
in violation of either the collective agreement or the Act in completing this arrangement with the Grievor who
signed the memo dated October 22, 1993 in that regard. The grievance cannot be allowed to extend the Grievor's
claim to a reduction of workload as a result of the leave of absence taken in the fiscal period ending March 31, 1994
to the next fiscal period provided under the Act as the Grievor's workload was reduced in accordance with the Act
in the fiscal period in which it applied. In that period, the leave of absence taken by the Grievor was scheduled on
her regular work days on which she did not work. That constitutes compliance by the College with the Act.
The Grievor was aware in November that the College would require teaching for 38 weeks which is clear from
the minutes of the staff meeting at which she was in attendance. The Grievor had signed the memo concerning the
leave arrangement prior to that meeting. Those minutes clearly set out the College position that the Social Contract
days are "outside the 38 teaching weeks" which was maintained with regard to the Grievor's claim. Complementary
functions can be assigned to upgrade skills and course preparation.
Having the considered the evidence and the submissions of the parties and for the foregoing reasons, the Board
finds that the Union did not establish a violation of the collective agreement or of the Social Contract Act by the
College as alleged in the grievance. What the Grievor could expect as a result of the application of the Social
Contract Act, was granted by the College. The requirements of the collective agreement with regard to the Grievor's
teaching period was not affected in the manner alleged by the Grievor as a result of the Act. The Grievor agreed by
which she was to take six unpaid leaves of absence days which were scheduled on consent in accordance with
Section 5.1 of the FailSafe Program prior to March 31, 1994. We find that the College was in compliance with its
requirements under the collective agreement and the Act in the circumstances of the grievance.
Accordingly, the grievance must be dismissed and we so award.
DATED AT OAKVILLE THIS 8TH DAY OF JANUARY, 1996.
HOWARD . BROWN, CHAIRMAN
MICHAEL J. SULLIVAN, UNION NOMINEE
R. GALLIVAN, COLLEGE NOMINEE