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HomeMy WebLinkAboutLefaive 95-03-2094A739 LEFAIVE VS NIAGARA COLLEGE IN THE MATTER OF AN ARBITRATION B E T W E E N: NIAGARA COLLEGE (The College) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The Union) AND IN THE MATTER OF THE GRIEVANCE OF L. LeFAIVE - #94A739 BOARD OF ARBITRATION: Kenneth P. Swan, Chairman Hugh J. Cook, College Nominee Pamela Munt-Madill, Union Nominee APPEARANCES: For the College: C.G. Riggs, Counsel J.F. Garner D. Taylor N. Perreault For the Union: Carmine Tiano, Counsel Lou Orr L. LeFaive A W A R D A hearing in this matter was held in St. Catharines, Ontario on February 2, 1995, at which time the parties were agreed that the board of arbitration was properly constituted, and that we had jurisdiction to hear and determine the matters at issue between them. Those matters arise from the grievance of Lawrence LeFaive dated March 31, 1994, which is in the following terms: Statement of Grievance The College has violated the Collective Agreement by abusing the usage of Sessional appointments by combining Sessional with Partial Load service to circumvent my completion of the minimum 12 month Sessional employment in a 24 month period. Article #2 and all relevant Articles. Settlement Desired That the College reclassify me as a Sessional effective September 7, 1993, and make all further adjustments in status which flow from said reclassification. The adjustments include reclassification as a Full-time Regular Employee who has completed the 1st year of Probationary period. The following provisions of the collective agreement were referred to by counsel in argument: Article 2 STAFFING . . . 2.03B The College will not abuse the usage of sessional appointments by combining sessional with partial-load service and thereby maintaining an employment relationship with the College in order to circumvent the completion of the minimum 12 months sessional employment in a 24 month period. Article 32 GRIEVANCE PROCEDURES 32.01 Articles 32.02 to 32.05 inclusive apply to an employee who has been employed continuously for at least the preceding four months. Complaints 32.02 It is the mutual desire of the parties that complaints of employees be adjusted as quickly as possible and it is understood that if an employee has a complaint, the employee shall discuss it with the employee's immediate supervisor within 20 days after the circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the employee in order to give the immediate supervisor an opportunity of adjusting the complaint. . The discussion shall be between the employee and the immediate supervisor unless mutually agreed to have other persons in attendance. The immediate supervisor's response to the complaint shall be given within seven days after discussion with the employee. Grievances 32.03 Failing settlement of a complaint, it shall be taken up as a grievance (if it falls within the definition under 32.12C) in the following manner and sequence provided it is presented within seven days of the immediate supervisor's reply to the complaint. It is the intention of the parties that reasons supporting the grievance and for its referral to a succeeding Step be set out in the grievance and on the document referring it to the next Step. Similarly, the College's written decisions at each step shall contain reasons supporting the decision. Step One An employee shall present a signed grievance in writing to the employee's immediate supervisor setting forth the nature of the grievance, the surrounding circumstances and the remedy sought. The immediate supervisor shall arrange a meeting within seven days of the receipt of the grievance at which the employee, a Union Steward designated by the Union Local, if the Union Local so requests, the Dean of the Division and the immediate supervisor shall attend and discuss the grievance. The immediate supervisor and Dean will give the grievor and the Union Steward their decision in writing within seven days following the meeting. If the grievor is not satisfied with the decision of the immediate supervisor and Dean, the grievor shall present the grievance in writing at Step Two within 15 days of the day the grievor received such decision. Step Two The grievor shall present the grievance to the College President. The College President or the President's designee shall convene a meeting concerning the grievance, at which the grievor shall have an opportunity to be present, within 20 days of the presentation, and shall give the grievor and a Union Steward designated by the Union Local the President's decision in writing within 15 days following the meeting. In addition to the Union Steward, a representative designated by the Union Local shall be present at the meeting if requested by the employee, the Union Local or the College. The College President or the President's designee may have such persons or counsel attend as the College President or the President's designee deems necessary. In the event that any difference arising from the interpretation, application or administration or alleged contravention of this Agreement has not been satisfactorily settled under the foregoing Grievance Procedure, the matter shall then, by notice in writing given to the other party within 15 days of the date of receipt by the grievor of the decision of the College official at Step Two, be referred to arbitration. . . . 32.05AIf the grievor fails to act within the time limits set out at any Complaint or Grievance Step, the grievance will be considered abandoned. The facts of this matter are relatively simple, and may be briefly described. The grievor was employed as a part-time Professor at the College in the Continuing Education program in the evening for many years. In January 1992, he began as a sessional employee, and by the end of April 1993 had accumulated a total of 11 months of sessional employment. Pursuant to Appendix VIII, which governs the employment of sessional employees, a teacher who achieves 12 months of sessional employment within a 24 month period becomes a regular full-time employee and has the period of time employed as a sessional employee counted toward the probationary period. The grievor had made a claim to an additional month's sessional employment in the month of December 1992, but that matter is the subject of another grievance, and may be disregarded for the purposes of the issues before us. Following the expiration of a sessional appointment at the end of April 1993, the grievor taught in the spring term as a partial-load teacher, much as he had in the spring of 1992. There is no complaint about this period of employment. In September 1993, however, he was given a partial-load assignment of 12 hours of teaching per week, just short of the threshold for sessional status. There is no doubt that there were other courses available which the grievor might have taught, but which were assigned to other teachers; the question of whether he had any entitlement to any further teaching assignment is at issue between the parties. In any case, although he may have engaged in some discussion with his supervisor during this period, the grievor clearly did not either make a complaint or file a grievance within the meaning of Article 32 during this appointment. In January 1994, the grievor was again given a partial-load assignment of 12 hours per week. Once again, there is no doubt that there were other courses available which the grievor could have taught; once again, there is a dispute between the parties as to his entitlement to be assigned those courses in preference to any of the other partial-load or sessional teachers who actually were assigned the work. It is not clear whether the grievor made a complaint pursuant to clause 32.02 some time after classes began in January 1994. He did, however, file a grievance on March 31, 1994, alleging a breach of the collective agreement going back to September 7, 1993. The grievance procedure under this collective agreement is mandatory, and a board of arbitration under the Colleges Collective Bargaining Act has no jurisdiction to relieve against time limits in any circumstances. The critical question is, therefore, whether a grievance filed on March 31, 1994 is timely. The Union essentially takes the position that the alleged abuse of sessional and partial-load employment is a continuing matter, and may be grieved at any appropriate time while it is continuing. With respect, we cannot agree. The question of whether the grievor could achieve 12 months of sessional employment within a 24 month period is central to the concept of abuse in clause 2.03B. The abuse must "circumvent" the completion of 12 months sessional employment in order to constitute a breach of that provision. Because the grievor's sessional employment began in January 1992, the very latest month in which he could achieve 12 full months of sessional employment was December 1993. The grievor's assignment as partial-load for December was clearly communicated to him in September 1993, and at that time it was obvious, failing some reassignment during the course of the term, that he would be prevented from achieving regular full-time status. While there was always the possibility that another course might be assigned to the grievor, unless that were to occur at the latest during the month of December, and unless the month otherwise met the requirements for sessional status in the collective agreement, the grievor would have lost a chance to make up the 12 months of sessional employment within the 24 month period that began in January 1992. Even if the grievor had been assigned sessional employment again in January 1994, he would have been prevented from making up 12 months of sessional employment in 24 months, because the 24 month period would now "roll" along with each new month of employment. In short, whatever grievance the grievor may have had would have crystallized at the very latest in December 1993. It is obvious that, even if the grievance had been preceded by a complaint, and even if the grievance was filed after an unsatisfactory answer to the complaint, or no answer at all, either the complaint or the grievance must be out time, and the grievance must therefore be deemed to be abandoned. In the result, the grievance must fail as not arbitrable due to non-compliance with Article 32 of the collective agreement. DATED AT TORONTO this 20th day of March, 1995. Kenneth P. Swan, Chairman I concur"Hugh J. Cook" Hugh J. Cook, College Nominee I concur Pamela Munt-Madill" Pamela munt-Madill, Union Nominee