HomeMy WebLinkAboutZurowski 02-12-21IN THE MATTER OF AN ARBITRATION
BETWEEN
FANSHAWE COLLEGE
College
- AND -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
Union
AND IN THE MATTER OF
A GRIEVANCE OF H. ZUROWSKI
Grievor
BEFORE:
Prof. C. Gordon Simmons, Chair
Hugh John Cook, College No minee
John McManus, Union Nominee
APPEARANCES ON BEHALF OF THE COLLEGE:
Mr. Robert J. Atkinson, Counsel
Ms. Gail Rozell, Manager, Human Resources, Fanshawe College
APPEARANCES ON BEHALF OF THE UNION:
Mr. Alick Ryder, Counsel
and Others
A hearing into this matter was held in London, Ontario on March 25, 1997 and an Executive
Session held on July 3, 1997 in Kingston, Ontario. The grievor alleges that the notice
of layoff dated April 1, 1996 to be effective March 20, 1997 was improper. The grievor had
been a regular full-time teacher in the nursing program within the Health Science Division.
She received a B.Sc. in Nursing and a Master of Arts in Education. She had been employed
full-time in the Nursing Division from August 14, 1986 until December 20, 1996. Between
December 20, 1996 and March 20, 1997 she was granted release of all teaching duties in
order to allow her to engage in retraining activities.
The parties had entered into a local agreement that there would be no layoffs
between April 1, 1993 until March 31, 1996. In November 1995 the College declared an
extraordinary financial exigency as provided in art. 29 of the collective agreement. This
required a consultative process with the Union. In November 1995 the College gave notice
to the Union that it planned to reduce the number of full-time employees under art. 27.05
which involves another consultative process and this process occurred during the Fall of
1995 and Winter of 1996. After this process had been completed, the College decided to
layoff a number of employees at the end of the no layoff agreement which expired on
March 31, 1996. On April 1, 1996 approximately 83 employees were given layoff notices.
The grievor was included in this notice of layoff.
On April 15, 1996 the grievor filed the following
grievance (Exhibit 2):
Memo
To: Pat Kirkby
From: Halina Zurowski
Date: April 15/26
Regarding: Grievance - Improper Layoff
I grieve that my layoff is improper, issued in bad faith and is contrary to the
provisions of the Collective Agreement.
I am entitled to displace full-time and non full-time positions within the
following divisions:
Health Science Division/Nursing Education Division/Health
Technology Division/ Human Services Division/Continuing
Education Division/Health Care Program (Health Sciences)
I contend that I have the competence, skill and experience to fulfil the
requirements of these positions and that my seniority is greater than any
persons occupying the above.
I also contend that I have the competence, skill and experience to perform
the requirements of the vacant positions in:
Health Science Division/Nursing Education Division/Health
Technology Division/ Continuing Education Division
As remedy, I request that the College rescind my layoff notice immediately
and provide me with details of my workload assignment as outlined in
Article 11 of the Collective Agreement. If this layoff notice creates any break
in employment between now and the time that this grievance is resolved,
then I also seek a retroactive payment for all salary plus interest, benefits,
seniority, etc. that I should have been entitled to.
HalinaZurowski
Signed:
c.c. Local 110
The College has taken the position that the grievor’s grievance is inarbitrable
because she failed to identify positions that she was seeking to displace pursuant to art.
27.08. The College asserted that this failure was fatal to the grievance being arbitrated.
At the commencement of the hearing the parties sought to have this prelim inary
objection, together with two other issues, dealt with before proceeding to the merits.
The issues or questions that were presented to the board are the following:
1. Is the failure to identify positions as per art. 27.06 ( i) fatal to the
grievance proceeding on its merits?
2. What is the period for which layoff rights are assessed?
3. Is the College obliged to assign lesser than full-time assignments to a
regular full-time employee?
The relevant articles in the collective agreement are as follo ws:
Layoff and Inventory Transfer
27.05
When a College plans to lay-off or to reduce the number of full-time
employees who have completed the probationary period, or plans the
involuntary transfer of such employees to other positions than those
previously held as a result of such a planned lay-off or reduction of
employees the following procedure shall apply:
...
(iii) If requested by a member of the CESC within three
calendar days following the meeting under 27.05 (ii), the
CESC shall meet within seven calendar days of receipt of
such request for the purpose of discussing the planned staff
reduction, the circumstances giving rise to the reduction,
the basis for the selection of the employees affected and the
availability of alternative assignments. It being understood
that the College reserves the right to determine the number
and composition of full-time, partial-load and part-time or
sessional teaching positions, the College shall give
preference to continuation of full-time positions over
partial-load, part-time or sessional positions subject to such
operational requirements as the quality of the programs,
their economic viability, attainment of program objectives,
the need for special qualifications and the market
acceptability of the programs to employers, students and
the community. The CESC may require that further
meetings be held.
27.06
When the College decides to lay off or to reduce the number of full-
time employees who have completed the probationary period or transfer
involuntarily full-time employees who have completed the probationary
period to another position from that previously held as a result of such lay-
off or reduction of employees, the following placement and displacement
provisions shall apply to full-time employees so affected. Where an
employees has the competence, skill and experience to fulfill the
requirements of the full-time position concerned, seniority shall apply
consistent with the following:
(i) An employee will be reassigned within the College to a
vacant full-time position in lieu of being laid off if the
employee has the competence, skill and experience to
perform the requirements of a vacant position.
(ii) Failing placement under 27.06 (i), such employee shall be
reassigned to displace another full-time employee in the
same classification provided that:
(a) the displacing employee has the competence, skill
and experience to fulfill the requirements of the
position concerned;
(b) the employee being displaced has lesser seniority
with the College:
(iii) Failing placement under 27.06 (ii), such employee shall be
re-assigned to displace a full-time employee in another
classification upon acceptance of the identical employment
conditions as the classification concerned provided that:
(a) the displacing employee has the competence, skill
and experience to fulfill the requirements of the
position concerned;
(b) the employee being displaced has lesser seniority
with the College.
(iv) Failing placement under paragraph 27.06 (iii), such
employee shall be reassigned to displace two partial-load
employees provided that:
(a) the displacing employee has the competence, skill
and experience to fulfill the requirements of the
position concerned; and
(b) each of the partial-load employees being displaced
has lesser months of service with the College as
determined in Article 26, Partial-Load Employees,
than such displacing employee’s months of
seniority; and
(c) it is understood that the College retains the right to
assign additional work to the employee, where
warranted, subject to the limits prescribed by
Article 11, Workload.
(v)(a) Failing placement under 27.06 (iv) or where the
employee has waived in writing the right in 27.06
(iv), such employee shall be reassigned to displace
one partial-load employee and one or more part-
time employees whose assigned courses are as
described in 27.06 (v) (b), provided that:
(i) The displacing employee has the competence, skill
and experience to fulfill the requirements of the
position concerned; and
(ii) each of the employees being displaced has lesser
months of service with the College (as determined
in Article 26, Partial-Load Employees, or Appendix
IX, as appropriate) than such displacing
employee’s months of seniority; and
(iii) it is understood that the College retains the right to
assign additional work to the employee where
required so that the work assignment so created
constitutes a full-load assignment in accordance
with the limits prescribed by Article 11, Workload.
(v)(b) The courses taught by the part-time employees
displaced must be:
(i) the same as, or
(ii) essentially the same as, or
(iii) pre-requisite courses to those taught by
the partial-load employee concerned.
(v)(c) Such employee shall have the layoff notice
extended until completion of the assignment so
created and shall maintain current salary and
benefits for the duration of that assignment.
(v)(d) Upon completion of the assignment so created, or
as mutually agreed between the College and the
employee, such employee shall be reassigned to a
vacant full-time position if the employee has the
competence, skill and experience to perform the
requirements of a vacant full-time position.
(v)(e) Failing placement under 27.06 (v) (d), such
employee shall be laid off without further notice
upon completion of the partial-load assignment.
(vi)(a) Failing placement under 27.06 (v) or where the
employee has waived in writing the right in 27.06
(v), such employee shall be reassigned to displace
one partial-load employee and engage in approved
retraining activities such that the employee retains
current salary and benefits for the duration of the
partial-load assignment provided that:
(i) the displacing employee has the
competence, skill and experience to fulfill
the requirements of the position
concerned; and
(ii) the partial-load employee being displaced
has lesser months of service with the
College (as determined in Article 26,
Partial-Load Employees) than such
displacing employee’s months of
seniority.
(vi)(b) Such employee shall have the layoff notice
extended until completion of the partial-load
employee’s assignment and shall maintain current
salary and benefits for the duration of the partial-
load assignment.
(vi)(c) Upon completion of the partial-load assignment, or
as mutually agreed between the College and the
employee, such employee shall be reassigned to a
vacant full-time position if the employee has the
competence, skill and experience to perform the
requirements of a vacant full-time position.
(vi)(d) Failing placement under 27.06 (vi) (c), such
employee shall be laid off without further notice
upon completion of the partial-load assignment.
(vii)(a) Failing placement under 27.06 (vi) (a), or where the
employee has waived in writing the right in 27.06
(vi) (a), such employee shall be reassigned to
displace a sessional employee (who has more than
90 days remaining on the sessional employee’s
term appointment) provided that the displacing
employee has the competence, skill and experience
to fulfill the requirements of the position
concerned.
(vii)(b) Such employee shall have the layoff notice period
extended until completion of the sessional
employee’s assignment and shall maintain current
salary and benefits for the duration of the sessional
assignment.
(vii)(c) Upon completion of the sessional assignment or as
mutually agreed between the College and the
employee, such employee shall be reassigned to a
vacant full-time position if the employee has the
competence, skill and experience to perform the
requirements of a vacant full-time position.
(vii)(d) Failing placement under 27.06 (vii) (c), such
employee shall be laid off without further notice.
(viii)(a) Failing placement under 27.06 (vii) (a), or where
the employee has waived in writing the right in
27.06 (vii), such employee shall be reassigned to
displace a part-time employee upon acceptance of
the identical employment conditions as the part-
time employee concerned provided that:
(i) the displacing employee has the
competence, skill and experience to fulfill
the requirements of the position
concerned; and
(ii) the part-time employee being displaced
has lesser months of service with the
College as determined in Appendix IX
than such displacing employee’s months
of seniority.
(viii)(b) Such a reassigned person shall be deemed to be
laid off and eligible for recall in accordance with
27.09 B and 27.09 C, 27.03 E and the rights under
27.09 A.
(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 employee
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.
(viii)(d) At the termination of the period referred to in 27.06
(viii) (c), such employee shall be reassigned to a
vacant full-time position, if the employee has the
competence, skill and experience to perform the
requirements of a vacant full-time position.
(viii)(e) Failing placement under 27.06 (viii) (d), such
employee shall be laid off without further notice.
Lay-Off Grievances
27.08 A
An employee claiming improper lay-off, contrary to the provisions
of this Agreement, shall state in the grievance the positions occupied by full-
time and non full-time employees whom the employee claims entitlement to
displace. The time limit referred to in 32.02 for presenting complaints shall
apply from the date written notice of lay-off is given to the employee.
27.08 B
If the grievance is processed through Step 2, the written referral to
arbitration in 32.03 shall specify, from the positions originally designated in
27.08 A, two full-time positions, or positions occupied by two or more
partial-load or part-time employees (the sum of whose duties will form one
full-time position), who shall thereafter be the subject matter of the grievance
and arbitration. The grievor shall be entitled to arbitrate the grievance
thereafter under only one of (i), (ii), (iii), (iv), (v), (vi), (vii), or (viii) of 27.06.
Council of Regents 11th Floor
for Colleges of 790 Bay Street
Applied Arts and Toronto, Ontario
Technology
June 3, 1992
Re: Displacement of Part-Time Employees
This will confirm the advice given in negotiations that it is the Colleges’ [sic]
intention that failing placement of a full-time employee who has completed
the probationary period under 27.06 (iv), the College will give reasonable
consideration to the written request of a full-time employee about to be laid
off to continue a full-time assignment by displacing two or more part-time
employees and the employee shall set out:
(a) the names of such part-time employees, each of whom,
have lesser continuous service with the College.
Upon receipt of such written request, the College will consider the feasibility
thereof taking into account such features as:
(b) possible reduction in efficiency, quality of performance or
adverse effect upon the program objectives; and
(c) the competence, skill and experience to fulfill the
requirements of the positions concerned.
F. Upshaw R. Johnston
President Chair
Ontario Public Service Ontario Council
Employees Union of Regents
The Union asserts that art. 27.06 (i) refers t o a “placement” situation only in that the
person seeking a “vacant position” is not seeking to displace anyone. Accordingly, art.
27.08 has no application to 27.06 (i) because art. 27.08 refers to displacement situations only.
Therefore, if art. 27.08 does not apply to the instant situation one has to look elsewhere in
the collective agreement for a solution. We were urged to find that art. 27.08 does not apply
to this situation and therefore we ought to look at the Letter of Understanding together
with art. 27.05 (iii) and apply the word “preferences” to full-time employees versus part-
time or partial-time employees as per (Swan chair) unreported October
Lambton College
25, 1989.
The College asserts that art. 27.08 applies to this situation. Article 2 7.08 refers to
layoff situations which is what we have in the instant situation. The parties have set out
what can and cannot be grieved in a layoff situation and they have agreed that a grievor
can only allege a violation in art. 27.06 and can only allege a violation of one of the sub-
paragraphs (i) through (viii) in that article.
In support of its position, the College referred the board to a number of previous
arbitration decisions involving community colleges and OPSEU. They are:
Canadore
, unreported (MacDowell
College and Ontario Public Service Employees Union(Mueck)
Chair), December 12, 1996;
St. Lawrence College and Ontario Public Service Employees
, unreported (Shime Q.C. Chair), September 11, 1986;
Union (Brown) Fanshawe College and
, unreported (Weatherill Chair), June 17,
Ontario Public Service Employees Union (Stokes)
1987;
The George Brown College of Applied Arts and Technology and Ontario Public
, unreported (Burkett Chair), December 29, 1995;
Service Employees Union (de Simone) St.
, unreported
Lawrence College and Ontario Public Service Employees Union (Brown)
(Shime Q.C. Chair), February 27, 1978; and
Lambton College and Ontario Public Service
, unreported (Swan, Chair), October 25, 1989.
Employees Union (Sayers)
The Union asserted that art. 27.08 should be interpreted to apply only to
“displacement” grievances. The wording of the article identifies full-time and non full-time
employees whom the grievor seeks to “displace”. If art. 27.08 were not given such an
interpretation it would mean that a number of provisions in the collective agreement would
be unenforceable. More particularly, provisions which are contained elsewhere in the
collective agreement would not create benefits to employees that had been intended. For
example, a placement grievance could not be grieved when one applies art. 27.08 beyond
displacement grievances.
In the alternative, even if art. 27.08 applies to the instant situation and the Union
must comply with its requirements, failure to have done so is not fatal to the Union’s
position because it has been unable to comply in giving the names of the positions the
grievor seeks because the Employer has not given the information to the Union and the
grievor to allow the Union to comply. That is to say, the Union has requested information
from the College regarding the winter term of 1997 for sessional, part-time employees and
partial-load employees and in addition the Union has sought to have timetables concerning
these employees in order to allow it to construct a workable full-time position. In support
of its position the Union relies on
Re United electrical Workers, Local 504 and Canadian
(1964), 14 L.A.C. 279 (Reville) where the grievor in that case was to
Westinghouse Co. Ltd.
be laid off and claimed a right to be transferred to another department. However, the work
in that other department was classified and the grievor had not received clearance. During
the course of the grievance the regulations were altered which enabled the employer to
reveal to the employee the information that he sought. The grievor in that case claimed that
his seniority rights had been frustrated. The board in that case agreed with the Union’s
position that the grievor’s rights had been frustrated. Its comments on p. 286 are as follows:
It is the board’s view that the ordinary rules of frustration of
contract apply to this situation. It has been held by the Supreme Court of
Davidson v. Norstrant
Canada in the case of (1921), 61 S.C.R. 493, that a
person under a contractual obligation cannot justify or excuse his default in
performance of it by setting up the promisee’s non-performance of a
condition precedent where the promisee’s non-performance is due to the
conduct of the promissor, which makes it unjust or inequitable that the
promissor should rely on such non-performance. It is perfectly valid to
interpolate the present situation in this statement of law as follows:
‘A person under a contractual obligation (the company)
obligated to comply with art. 13.07(g)(iii) cannot justify or
excuse his default in performance of it (refusing the grievor
the transfer in question under art. 20) by setting up the
promisee’s (the grievor’s) non-performance of a condition
precedent (obtaining the security clearance in question)
where the promisee’s (the grievor’s) non-performance is
due to the conduct of the promissor (the company’s failure
or neglect to supply the grievor with application forms
required by the Department of Defence Production and
processing such forms), which makes it unjust or
inequitable that the promissor (the company) should rely
upon such non-performance.’
Decision On The First Question or Issue (
supra)
The board is unable to agree with the Union’s position that art. 27.08 does not apply
to the instant situation. While it is true that art. 27.08 (a) and (b) refer to displacements and
not to placements the article must be interpreted, notwithstanding the eloquent
submissions on behalf of Counsel for the Union, to include all of art. 27.06. We are
supported in this position by the last sentence in art. 27.08 (b) which reads: “The grievor
shall be entitled to arbitrate the grievance thereafter under only one of (i), (ii), (iii), (iv), (v),
(vi), (vii), or (viii) of 27.06.” Furthermore, it is to be noticed that each of the paragraphs in
art. 27.06 start with “failing placement” whereupon the employee seeking to displace
someone moves on down the chain seeking someone to displace. Perhaps the parties could
have included the word “placement” in art. 27.08 to be more clear but we interpret art.
27.08 to apply to all layoff situations. Moreover, art. 27.08 is prefaced by the words “Lay-off
Grievances”. This interpretation in our view is reasonable.
Accordingly, we are of the view that the MacDowell board in is
Canadore
dispositive of the issue that is before us. In referring to the Shime decision of
St. Lawrence
() and the Weatherill decision in () Arbitrator
supra supra
College Fanshawe College
MacDowell in the decision () stated at p. 10:
supra
Canadore College
These are admittedly old cases. But they are precisely on point, no
contrary authorities were cited to us, and the language in question has been
maintained, without material change, since 1987, over several rounds of
bargaining. Had the parties wished to change the contract language to avoid
the interpretation given by arbitrators Shime and Weatherill, they could
easily have done so. But they did not. On the contrary. Article 27.08B, as
currently framed, merely reinforces the mandatory thrust of Article 27.08A;
because 27.08B narrows the number of positions which can ultimately be the
subject of arbitral review. The matters that can proceed to arbitration are a
subset of the positions identified in Article 27.08A – which makes it all the
more important for the grievor to identify the field from which the arbitrable
subset is selected.
In other words, the current structure of the agreement reinforces the
interpretation advanced by arbitrators Shime and Weatherill ten years ago.
In the case () the grievor claimed that he had been laid off
supra
St. Lawrence College
contrary to the terms of the collective agreement and was met with the employer’s response
that the grievance did not specify the persons whom the grievor sought to displace. In the
case () the board of arbitration had to consider the propriety of a
supra
Fanshawe College
layoff and once again there was a problem because the grievor had not specified the names
of the individuals whom he sought to displace. Since the and
St. Lawrence Fanshawe
decisions were released the parties changed the wording from “persons” to “positions” and
this change was in effect when the decision was made. The MacDowell
Canadore College
board was of the view the change was of no material effect. We agree.
While the grievor contend s that she was unable to name a vacant position because of
a lack of information and the College’s reluctance to provide her with any information
concerning various positions that might be open or the possibility of cobbling certain part-
time or partial workload positions (which is a part of issue #3 that has been stated above),
the board is of the view that failing to name vacant positions that may have been available
to her is a fatal flaw to this grievance. The Shime, Weatherill, and MacDowell decisions
make it clear that the grievor must designate certain persons or positions that she claims
she is competent to perform and has the skill and experience to fill the requirements of the
positions she seeks. This the grievor failed to do throughout the grievance procedure. We
do not regard the Union’s allegation that the College must provide information to the
grievor as to what vacant positions she seeks to be placed into but instead it is up to the
grievor when claiming a vacant position to set out what position she is claiming. The
case () is distinguishable in that the grievor stated as reported
supra
Canadian Westinghouse
at p. 280: “I can perform the work of the following employees who have less seniority than
I.” The grievor in that case identified the employees whom he was seeking to displace. For
the above reasons, the answer to Question #1 is yes.
The second question is: “What is the period for which layoff rights are assessed?”
The College stated that as of July 1996 there were no vacancies into which the
grievor could be placed. However, the effective date of her layoff was March 20, 1997 and
this included a release from duties as of December 20, 1996 for the purpose of engaging in
retraining activities. It is to be remembered that the notice of layoff was dated April 1, 1996
and the grievance was filed on April 15, 1996. The Union asserts that the effective date of
the layoff (December 20, 1996) is the date when the grievor can look around to displace a
less senior employee. The College asserts that the time for looking around was April 15,
1996. Both parties rely on the case () for support in their respective
supra
Niagara College
positions. At pp. 5 and 6 the following comments appear:
By Article 8.05 it is clear that the time for such consideration is
‘when the College decides to lay-off’ which means the effective date of the
lay-off of the grievor in this case which was October 24th, 1988. As of that
date, under the terms of Article 8.05 (b) the laid-off employee has the
entitlement to displace a less senior employee subject to the conditions set
out in that Article to fill the requirements of the position.
The Union’s position is that “the effective date of the layoff” is December 20, 1996
and if it is April 1996 the situation becomes a matter that is left open to possible abuse. For
example, if the notice had been given on July 1 there would be no one teaching and no
incumbents to displace. Further, if it is in April there are six weeks left to teach and the
College would not want to effectuate layoffs at that time. So the time to grieve is when you
are moved to the unemployment status.
The College in referring to the () also cited the quotation from
supra
Niagara College
that decision above and asserted that the words “decides to layoff” and “effective date” are
somewhat confusing.
The answer, according to this board, lies in art. 27.08 A which in the last sentence of
that article reads: “The time limit referred to in 32.02 for presenting complaints shall apply
from the date written notice of lay-off is given to the employee.” That time limit in art.
32.02 requires that a complaint must be discussed with the employee’s immediate
supervisor within 20 days following a complaint raised by the employee. The comments in
does not assist the board in determining this issue. That decision refers to
Niagara College
the decision of the college and the effective date of the layoff. The decision by the College
on the one hand, following notice to the employee of a layoff, and the “effective date of the
layoff” are two separate and distinct dates. The notice to layoff is, for our purposes,
contained in art. 27.08 A which limits the time following notice to present complaints and
that is the time when the complaints must be referred to the College. It is also at that time
that the employee must state in her complaint that she is being improperly laid off. In the
instant situation the grievor was notified on April 1, 1996 that she was to be laid off. She
filed her grievance on April 15, 1996 claiming that her impending layoff was improper.
While the effective date of her layoff was March 20, 1997 (with a retraining program from
December 20, 1996), she nevertheless had a complaint on April 15, 1996 that her layoff was
improper.
In this board’s view the grievor was (quite properly) of the view that her
employment was such that she was to be laid off at a future date. She claimed that her
impending layoff was improper and filed her grievance accordingly. In this board’s view
had the grievor waited until December 1996 the College would have had a viable argument
that her grievance was out of time because she had received notice of her impending layoff
in April 1996. So this board’s view is that the period for which her layoff rights were to be
assessed was April 1996 and not December 1996.
When the grievor filed her grievance on April 15, 1996 alleging improper layoff she
was obligated to look around on April 15 for a vacant position then existing, pursuant to
art. 27.06 (i), or name employees who held full-time positions pursuant to art. 27.06(ii) or
(iii), or name partial load part-time and sessional employees pursuant to the remaining
subparagraphs of art. 27.06.
Accordingly, the answer to Question #2 is April 15, 1996.
This should end the matter but the parties asked for an interpretation of Question #3
and the board, while reluctant to do so, makes the following obiter comments in an effort to
assist the parties as requested by them. It must however be stressed that the following
comments are obiter only.
Question #3 – Is the employer obligated to combine lesser than full-time
assignments to a regular, full-time position?
Again we refer the parties to arbitrator Swan’s decision in . In that
Lambton College
case it is to be noted that on p. 1 of that decision setting out the facts the board stated as
follows:
In this instance, the intention of the grievance is that the grievor would take
certain teaching assignments away from each of three employees who teach
less than full-time, in the process putting together a full-time job made up of
pieces of teaching previously done by others. These pieces are for the most
part ‘relief hours’, hours in a particular course which, if taught by the
principal instructor, would give that instructor a teaching load beyond that
permitted by the collective agreement.
It is to be noted that the grievor in that case sought to take teaching assignments
away from three employees who taught less than full-time. The question for the Swan
board was whether or not the employer was obliged to combine lesser than full-time
assignments to a regular full-time teaching employee. The board in that case concluded
that the employer was so obliged. In doing so the Swan board looked at the letter of
understanding then existing in that collective agreement together with what is now art.
27.05 (iii) and concluded that the employer was obliged to give preference to the
continuation of full-time positions over positions that were less than full-time.
However, the instant case involves a claim under s. 27.06 (i) which seeks a vacant
full-time position. Had the grievor in the instant case filed her grievance under s. 27.06 (iv)
and named the employees she sought to displace, the Swan board would have been more
persuasive in our decision. It must be remembered that the board in the instant situation
has decided that art. 27.08 applies to the instant situation and therefore art. 27.08 B states in
its last sentence that the grievor shall be entitled to arbitrate the grievance under only one of
(i) – (viii) and therefore the grievor in the instant situation was precluded from pursuing
her grievance under (iv) which we must assume, but it is not so stated, was the article that
was pursued in the Swan arbitration.
In the instant situation the parties agree that the matter was pursued under art. 27.06
(i). Article 27.08 B entitles the grievor to arbitrate a grievance under only one of the
subparagraphs in art. 27.06. Article 27.06 (i) in this board’s opinion does not allow the
grievor to search and cobble a number of partial or part-time positions to make a full-time
position. If the intent of the grievor is to cobble a number of positions she must pursue her
grievance under art. 27.06 (iv) if she wishes to displace two partial-load employees or art.
27.06 (v) if she wishes to displace one partial-load employee and one or more part-time
employees. But this is not what the grievor did in the instant situation. She sought to be
reassigned to a vacant full-time position in lieu of being laid off, yet she did not mention
any position being sought in her grievance.
So the answer in this board’s opinion to Question #3 is no in the circumstances of
this case.
For all of the foregoing reasons the grievance must be and is hereby dismis sed.
Dated at Kingston, Ontario, this 12th day of August,, 1997.
C. Gordon Simmons
Chairperson
“”
Hugh John Cook
I concur/ dissent
Hugh John Cook
College Nominee
“Dissent Attached”
I concur/dissent
John McManus
Union Nominee