HomeMy WebLinkAboutUnion 97-07-01IN THE MATTER OF AN ARBITRATION
BETWEEN:
FANSHAWE COLLEGE
(The College)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(The Union)
AND IN THE MATTER OF SEVERAL LAYOFF GRIEVANCES
OPSEU #s 96F798-800 (Academic)
BOARD OF ARBITRATION:
HOWARD D. BROWNCHAIR
JON C. McMANUSUNION NOMINEE
RON HUBERTCOLLEGE NOMINEE
Appearances for the College:
Robert J. Atkinson, Counsel
Gail Rozell, Manager, H.R.
Appearances for the Union:
David Wright, Counsel
Gary Fordyce, Chief Steward
Tom Geldhard, Vice Pres.
A HEARING IN THIS MATTER WAS HELD AT LONDON ON JUNE 10, 1997.
AWARD
The grievances arise from a layoff of about 55 academic employees of the College in
1996, each of whom were given a notice of layoff as at April 1, 1996. As a result of
economic pressures at the College and for a variety of reasons in early November 1995, the
College gave notice under Article 29.01 of a financial exigency when the Union was notified
that approximately 84 full-time employees in the bargaining unit would be laid off and notice
of layoff was given under Article 27.05. This was followed by various consultations between
the parties through to March 1996 in accordance with Article 27.05 when the College
determined that layoffs would be required and notices to these employees were provided on
st
April 1.
The grievances do not challenge the validity of the layoff notices or that the layoff
itself was invalid but are related to the time at which the layoff becomes effective. With
particular reference to:
“Article 27.06 (viii) ( c )
Failing placement under 27.06 (viii) (a), such employee shall
be laid off with written notice of not less than 90 calendar
days. Such employees shall be granted release from all or
part of the normally assigned duties, for this period of notice,
for the purpose of engaging in retraining activities, where
such release is feasible given the normal operational
requirements facing the College. Where such release is not
possible, the notice period shall be extended by up to 90 days
to permit retraining and the employee shall maintain current
salary and benefits for the duration of the notice period.”
There are four grievances referred to this Board at this hearing which set out the issue
to be determined by the Board as representative of fact situations which would apply to all of
the employees who were given notice of layoff and filed grievances. It is the Union’s
position that the Grievors should receive either whole or pro-rata time for their vacation
entitlement, statutory holidays, professional development days, and non-teaching weeks
attributable to their period of employment prior to the layoff notice if they had been released
from teaching duties or as some employees had been required to complete their teaching
duties, until the date such employees were released from their teaching duties, from which
these benefits would accrue to extend the time of layoff notices given under Article 27.06
(viii) ( c). The College made the release of all teaching duties effective at the end of the
teaching requirements of those employees who were subject to layoff.
st
were
Those employees who were released from teaching assignments on April 1
given 90 days’ notice from that date which would extend to the end of June. These
employees work the academic year of 10 months and are paid for 12 months with normally
July and August off work. Those employees who were released from teaching duties on
st
August 1 were paid 2/12s of their salary following the notice period during which they
received full pay and benefits. Those employees who were required to complete their
teaching duties when the notice became effective were paid 1/12 in addition to the notice
period.
The Grievors claim that the notices of layoff should not become effective until they
have received the benefits set out in their grievances relating to their work in the academic
year of 1995-96. By extending the layoff notice in this manner, their other rights under the
collective agreement including seniority and recall would also be extended which could
become significant to them. Their workload creates a set of duties described in the collective
agreement and in the Union’s position, these employees could only be released from such
duties in proportion to the non-teaching duties plus the monetary issues and thus extend the
notice and retraining period into the fall of 1996. Retraining referred to in this Article is
voluntary and the College does not require a retraining plan or approve any particular type of
retraining of the employees affected.
It is the position of the College that Article 27.06 (viii) (c ) is clear and that notice of
90 calendar days is given when it decides not to reassign the employees or at the conclusion
of their teaching duties when they are released from those duties. At that time, the affected
employees are entitled to and did receive 90 days’ notice for the purpose of retraining. The
issues concerning displacement by these employees were dealt with in the discussion of the
parties prior to the layoff when the employees were released. They were released from all
teaching duties and were not required to perform any other work after their release and
received full pay and benefits to the end of the retraining period.
The submission for the Union is that vacations are earned under Article 15 for those
who have completed one full academic year of service with the College who are then entitled
to two months off work as scheduled by the College which benefit relates to the completion
of their teaching duties. The Grievors did not have vacation time as they were given notice
of layoff while entitled to the two months of vacation so that in its position, the Grievors are
entitled to two months’ vacation before their layoff could become effective which would be
th
September 30 for those who completed their teaching duties prior to the layoff notice.
Other Grievors who were relieved of their teaching duties prior to the end of the academic
year are entitled to a pro-rata share of vacation benefits before their retraining period
becomes effective. It was submitted that the vacation entitlement cannot be removed by the
College. On this issue, the Union referred to the decision in Re: Humber College (Devlin,
July 2, 1992).
By Article 16, the employees are entitled to holidays including Canada Day which
would fall within the retraining period for the Grievors. It is its submission that this time
should be extended by one day to allow for this benefit. The Union requested a declaration
by the Board that the 90-day training period is extended by this holiday benefit.
In addition to their teaching workload, there are complimentary functions which may
be assigned by the College to a maximum of 44 hours and flowing from the teaching
responsibilities, the employees are attributed other hours with pay for a full academic year. It
is the Union’s submission that the College cannot unilaterally alter the formula set out in the
workload provisions of Article 11 and cannot release the employees from other duties
because when they are finished with teaching duties, they are entitled to the other benefits of
complimentary functions including in Article 11.01 H 1, ten working days of professional
development in each academic year. It is submitted that those benefits cannot be removed
and should be accorded to the professors who have the right during the teaching period for
that time as a complementary function which they earned through teaching.
If an employee did not complete the teaching functions, then the employee should be
entitled to a pro rata share of such benefits including professional development days. It is the
Union’s position that for these employees the effective date of layoff could not be April 1 as
they are entitled to a pro rata share of these benefits provided under the collective agreement.
Reference was further made to the award in Re Northern College and OPSEU (Morrison), a
workload resolution award dated September 28, 1994 which recognizes that the workload
formula being negotiated cannot be changed unilaterally to, in that case, increase the
workload.
It is the Union’s position that during non-teaching periods, a professor has a choice
under Article 11.01 (d) when he or she could perform duties such as course development for
the next academic year. The College cannot release those non-teaching duties. Vacation and
retraining periods are different benefits and vacation is inconsistent with retraining and
therefore in its submission, these employees are entitled to two months of scheduled vacation
without any other duties after which they would receive 90 days of retraining pursuant to
Article 27.06 (viii) (c ). The 90 day retraining period is in its submission, exclusive of
benefits including vacations, holiday pay and professional development days.
The submission for the College is that Article 27.06 (viii) (c ) is clear and does not
require the College to extend the 90 days notice by vacation or non-teaching time but is
restricted to a requirement of 90 calendar days’ notice of layoff. The College permits that
period for retraining by the individual but does not require specific retraining as the
employee is released from all assigned duties and is free to do whatever the employee
decides. During the notice period, the employee is paid full salary and benefits but which is
not extended beyond 90 days. The only exception is where the College cannot release an
employee from all or part of the teaching duties but that time is not extended for purposes of
professional development duties and non contact hours contained in the agreement. The
benefits apply to the work duties during the academic year. The layoff notice provision does
not provide a leave of absence but for payment after a release of teaching duties which cuts
off the benefits. There is no provision to pro rate the continuation of work and benefits. This
section overrides the workload provisions in the agreement which are not continued but
stopped by the release of the normally assigned duties by the Grievors. It cannot be inferred
that this release is subject to a pro rata calculation of teaching duties and benefits.
It was submitted that a vacation period is time off from work without loss of pay and
as these employees were released from duty and were not working, they received pay during
the notice period but that does not include vacation. They were paid for the statutory holiday
which occurred in this period. This Article does not refer to vacations such as included in
the discharge provision of Article 27.14 (a). The employees are paid their annual salary for
12 months and are given two months off without teaching duties. The employees who
worked 11 months in teaching and were then released, were paid for one month’s vacation.
The Grievors are not entitled to two months of vacation in addition to their layoff notices.
Reference was made in its submission to St. Clair College of Applied Arts and OPSEU
(H.D. Brown, June 14, 1989); Re Conestoga College and OPSEU (O’Shea, November 26,
1976); Re Algonquin College and OPSEU (Weatherill, July 8, 1983), in support of its
position that the period of retraining is not extended by vacation entitlements.
In the Humber College case, the evidence is that the Grievor was not advised of the
specific date of his release from assigned duties and continued to perform duties for the
College including a program review. The issue was the entitlement of a 90-day period for
the purposes of retraining to start from the date of release from his assigned duties and when
he could be required to engage in retraining and whether that could be done during his
th th
vacation period, scheduled by the College from June 25 to August 26. The Board held
that:
“engaging in retraining is not consistent with being on
vacation and accordingly retraining and vacation cannot occur
simultaneously. Moreover, if the College’s interpretation
were correct, there would be no incentive to release an
employee from his assigned duties during the initial notice
period as by deferring the release, an employee could be
required to retrain during the scheduled vacation period. In
our view, such an interpretation would deprive the employee
of the vacation entitlements set out in the collective
agreement or alternatively, would force the employee to
forego some portion of the period provided for retraining
under Article 8.05 (h) (iii) of the collective agreement…”
In a St. Clair College award referred to in the above award, the issue was a claim
that teachers who were paid to September 15, 1988 which included two months’ vacation,
should receive 90 days’ notice plus the two months’ vacation as they were advised on
th th
June 15 of their layoff on September 15. The Grievors took their vacation period as
scheduled and were paid regular salary pursuant to Article 8.04 (f). They were entitled to
90 days’ notice of layoff which overlapped the vacation period. It was the Union’s
position that their vacation period should be exclusive of the period of notice and claimed
an additional two months’ salary for the employees. That was rejected by the Board
which found that as the parties included in the discharge
provisions for an additional notice period as presently in Articles 27.14 (a), a similar term
was not included in the layoff provision and stated:
“consistent with the College’s submission that employees
have a period of vacation entitlement and are not given paid
vacation. There are entitled to 100% of their regular salary
spread over 12 months. Therefore, it follows that when the
College gave notice of vacation in the regular course of its
scheduling that it was independent of the notice of layoff
which was subsequently imposed. There is no term in the
collective agreement which requires an employee who has
been given notice of layoff that the vacation period must be
dealt with separately and in addition to the 90-days’ notice
requirement so as to entitle such employees to additional
compensation…”
The facts in the instant grievances commence with the circumstance of an employee
being released from all or part of normally assigned teaching duties as of
April 1, 1996 when the notice of layoff was given or where an employee was required to
complete the teaching duties during the academic year at the end of which the employee was
released from all such duties. At that time, the notice required and given under Article 27.06
(viii) ( c ) was 90 calendar days effective from the release of such duties “for the purpose of
engaging in retraining activities”. There is no dispute that the College had declared a
financial exigency and the Union was then notified of impending layoffs which was followed
by consultations between the parties. The College did not require these employees to engage
in any particular type of retraining, that endeavour was left to the individual’s discretion and
there was no compulsion by the College to do anything after the release of their duties and
the notice of layoff was given pursuant to this Article. In our view, this situation is
distinguished from the facts in the Humber College award which we find should not be
applied in the circumstances of this case. The finding in the St. Clair award however, is
consistent with the appropriate application of the right of the College under Article 26.07
(viii) ( c) to firstly release employees from assigned duties for the period of the notice which
is set at 90 calendar days. The period of notice provided by this Article is not qualified by
any attachment for extension of the notice time because of benefits which may have accrued
or have been applied during the academic year to these employees. Such a condition would
require an addition to the terms of this Article, should the Union’s submission on these
grievances be accepted.
A vacation as provided by Article 15 is a period off work after the academic year and
scheduled by the College for which the employees are paid as part of their total remuneration
for the calendar year. If that time off work was to be exclusive of a notice of layoff which
might affect their vacation attached to their teaching duties during the academic year, that
should have been explicitly recognized in the layoff procedure as it is for discharges from
employment in Article 27.14 (a). Consistent with such intent however, the College paid the
Grievors, their full salary for the 12-month period which would include their time off work
as if notices of layoff had not been given. The only exception in the layoff provision to the
notice period of 90 calendar days is where the College for operational requirements cannot
release the employee as at the date it ascertains a layoff is necessary in which event, there is
an extension of the notice by
90 days from the date when the release from such duties became effective. Therefore, for
st
those employees who were released from all duties on April 1, their notice period extended
th
to June 30 and for those who continued their teaching duties during the academic year and
were released on completion of those duties, the notice period of 90 days commenced from
that date. We find that there is no basis in the terms of the collective agreement applicable to
layoffs to extend those periods of notice as claimed by the Union.
We find that the College complied with the terms of Article 27.06 (viii) (c ), by its
service of a written notice of layoff to the affected employees when they had been released
from all or part of their normally assigned duties and provided 90 calendar days’ notice with
full pay and benefits to them. The purpose of that notice period expressed in this Article is
not a mandatory requirement of the employee in order to obtain the benefits during that
notice period when the affected employee has no further assignment obligations with the
College. The payment by the College of the unexpired vacation entitlement is consistent
with Article 15 and satisfies the requirements of the College as to the Grievor’s vacation
entitlement which is a period off work. That benefit is not inconsistent with a voluntary
retraining programme which the employee may enter in that period when the professors are
not required to work as the College released them from all duties on the effective dates of
their layoffs.
We note in the Algonquin College award, the Board stated:
“A person is not on vacation when his employment
relationship has ceased although he may receive vacation pay
upon the termination of employment…”
The Board finds that vacation entitlement, statutory holidays, professional
development days and non-teaching weeks are matters arising from the Grievors’ teaching
responsibilities during the academic year and are separate benefits attaching thereto and do
not qualify the right of the College to layoff employees which event is subject to the specific
conditions applicable to layoffs expressed in Article 27.06 and the notice requirement in
(viii) (c ). We find that the notice period provided in this layoff cannot be extended by the
time claimed included in the issues set out in these grievances. It is our opinion to allow this
extension of the terms of Article 27.06 (viii) (c ) would require its amendment which would
be contrary to Article 32.04 (d) by which the Board is not authorized to amend any terms of
the collective agreement.
When the College gave notices of layoff to the Grievors, their employment
relationship was concluded subject to the conditions of the collective agreement applicable to
layoffs which relate to possible displacements to retain a position of employment but when
those considerations were exhausted and the layoff became effective April 1, 1996, the
Grievors’ employment ceased with the release of their duties. Following that event, the
Grievors were entitled to the 90-calendar day notice “for the purpose of engaging in
retraining activities”. Whether the Grievors engaged in such activities was an individual
decision and not mandated by the College to which they had no further responsibility for
teaching or non-teaching functions. Vacations, professional development days,
complementary functions and statutory holidays are assumed in a continuing employment
relationship and part of work assignments and the responsibilities of the professors and fall
within the conditions applicable to the academic year. The College has the right to end both
teaching and non teaching functions which were completed by those whose teaching duties
st
were ended by the notice on April 1 or as the day when employees who continued after
st
April 1 to teach were released from further teaching duties. That is the period of extension
provided in this Article. In either circumstance, the Grievors were paid for Canada Day
which fell within their period of vacation for which they were paid on the basis of the
formula set by the College. That statutory holiday could not therefore be used in any event in
this cause to extend the layoff notice period.
We find that the Union did not establish that there is a full or pro rata extension of
the layoff notice period which the Grievors can claim under the headings of their grievances
as none of those issues are supported in the application of the clear language of Article 27.06
(viii) ( c). By this Article, the College is not required to do anything other than compliance
with the 90 calendar days’ notice calculated from the date that it releases an employee from
all or part of the normally assigned duties. That is the sole test to establish the date from
which this notice period becomes effective and is to be calculated and cannot be otherwise
extended by reference to other conditions of employment which have not specifically been
included in the terms of Article 27.06 (viii) (c ) which applies to the layoff of the Grievors.
We find that the Union did not establish the College was in violation of Article 27.06
(viii) ( c) as alleged in these grievances which are therefore dismissed and we so award.
DATED AT OAKVILLE THIS DAY OF JULY, 1997
Howard D. Brown, Chair
John McManus, Union Nominee
Ron Hubert,
College Nominee