HomeMy WebLinkAboutGibson 97-07-011
IN 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. BROWN CHAIR
JON C. McMANUS UNION NOMINEE
RON HUBERT COLLEGE 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
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required and notices to these employees were provided on 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
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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.
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Those employees who were released from teaching assignments on April 1 were
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
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duties on 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
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become effective which would be 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).
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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.
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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
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done during his 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
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advised on 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
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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
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those employees who were released from all duties on April 1, their notice period
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extended 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:
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“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 employ ment
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
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completed by those whose teaching duties were ended by the notice on April 1 or as the
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day when employees who continued after 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
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Howard D. Brown, Chair
John McManus, Union Nominee
Ron Hubert, College Nominee