HomeMy WebLinkAboutBlack 99-04-26 IN THE MATTER OF
AN ARBITRATION
BETWEEN
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
AND
ST. LAWRENCE COLLEGE
GRIEVANCE OF DONALD BACK
OPSEU # 98C303 & #98C304(ACADEMIC)
BOARD OF ARBITRATION
H. S. FINLEY, CHAIR
R. J. GALLIVAN, COLLEGE NOMINEE
C.G. MASSE, UNION NOMINEE
APPEARANCES
FOR THE COLLEGE: C. G. RIGGS, COUNSEL
P. CARR-HARRIS, HUMAN RESOURCES
M. SMITH, DIRECTOR. SCHOOL OF HEALTH
SCIENCES
FOR THE UNION: M. GOTTHEIL, COUNSEL
M. K. WHITE, CHIEF STEWARD, LOCAL 417
D. W. BACI~ GRIEVOR
THE HEARING IN THE PRELIMINARY MATTERS WAS HELD IN KINGSTON
ON
NOVEMBER 5, 1998
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In the first, he grieved
An
The pasties asked the Board to role on two preliminary issues prior to the heating on the merits.
The fn, st is ~vhether or not the time tbe Grievor spent developing the objectives, curriculum,
laboratory modules, and ca_wing out other program related duties (mid-January 1996 to the end
of July 1996) should be included as part of his probationary period. The second, is the
procedural issue of ~vhether, depending on the Board's decision on the initial preliminary matter,
the Union or the College should proceed first ~vhen the merits are presented to the Board.
The Union takes the position that Dr. Back's work during the January through July period was
bargaining-unit work and that he was asi employee of the College during that time and therefore
those months should be included in the calculation of his probationary time. The College is of
the opinion that Dr. Back was not an employee of the College but rather a "contractor" providing
services to the College and that this period of time should not be included in the calculation of
Dr. Back's probationary time. The parties agree that a ruling in the Union's favour would have
the result of Dr. Back's dismissal being considered according to the standard of '~just cause",
xvhile a ruling in favour of the College would have the result of its being considered according to
the standaacd of "bad faith".
With respect to the onus issue, if the ~just cause" standard is applied, the pasties agree that tbe
onus is borne by the College, and the College ~vould then proceed first. If the "bad faith"
standard is to be applied, the pa~es agree that the Union bears the onus. Ho~vever, the Union
believes that given the circumstances, it makes sense from a procedural point of view, for the
College to proceed initially and to present its evidence, since it believes that the College is in
possession of most of the evidence relating to the central issue before the Board.
The following axticles of the Collective Agreement are relevant to the preliminary issues:
ARTICLE 1
RECOGNITION
1.01 The Union is recognized ~ the exclusive collective bargaining agency for Itll academic
employees of thc Colleges engaged as teachers, ¢om~sdlor~ Md librarians, all Im nlor~ particularly
2
V.
.
.
.
27.02 B The probationary pm'Jori shall also consist of 24 full months Of non.continuous
employment (in periods of at least one full month each) in a 48 calendar month period. For the
purposes of 27.02 B, a calendar month in which the employee completes 15 or more days worked
shall be considered a "full month".
If an employee completes less than I5 days worked in each of the calendar months at the start and
end of the employee's period of employment and such days worked, when added together, exceed
15 days worked, an additional full month shall be considered to be completed.
27.02 C I;~'ing the probationary period an employee will be informed in wring of the
employee's progress at intervals of four months continuous employment or four full months of
accumulated tton,-continuous employment and a copy given to the employee. Also, it is
understood that an employee may be released during the t"~t five months of continuous or non-
continuous employment accumulated employment following the conaneacem~t date of the
employee's employment upon at least 30 calendar days' written notice and during the vanainder
of the employee's probationary period upon at least 90 calendar days' written notiex. If requested
by the employee, the reason for such release will be given in writing.
27.02 D The Union Local shall be advised of the date on which an employee completes the
probationary period.
27.03 F2 Employment with the College in a position ordinarily outside the bargaining
unit in the course of which teaching, coun~ll~,g or library assignments have been undertaken in
the College (other than on an unusual or isolated basis) shall count in computing seniority of
persons hid by the College in positions outside the Agreement. Such seniority shall be credited
in the proportion that the teaching, counselling or library assignment is of a full-time assignment
based on one-quarter, one-half or threequarters of a month of seniority fo[ri each full month's
employment.
27.04 A In January of each year, the College shall prepare and post lii as follows:
a seniority list of all regular full-time employees showing the employee's name,
classification, division or d~arm~ent, and seniority as determined pusuan-, [sic] to this
Article.
ii. a list of all probationary employees showing the ~mployee's name, division or
department, date of hi and date of completion of the probationary period
a seniority list of ~,!1 partial-load employees employed since the previous January
showing the employee's name, division or department, and accumulated service to date.
Such lists shall also be sent to the Union Local President.
27.04 B Such lists shall be posted for et least two weeks and the information contained therein
shall be considered correct for all purposes unless the employee disputes its accuracy within such
two week period by filing written notice thereof with the College.
27.04 C If an error is ~'tablishgd subsequent to the pm'iod referred to in 27.94 B, th~ correction
shall not render the College lllle in any manner for actions based thereon.
4
The Union called twvo witnesses, the Grievor, Dr. Back, a_nd the Chief Steward of Local 417,
Maria White. The College elected not to call any witnesses. As a result, the facts established by
the evidence, are based primarily on the evidence of the Grievor, Dr. Back.
Dr. Back testified that in the summer of 1995 he learned that St. La~vrence College had recently
established a Biotechnology Program and he got in touch with Bob lqorwood~ the Co-ordinator
of the Biotechnology Program, and Maxgaxet Smith, the Director of the School of Health
Sciences and told them of his interest. As a result, he was invited to sit on the Advisory
Committee. The role of this volunteer committee is to provide input with a view to keeping the
program relevant to the world of work. In late November 1995, the Committee became
concerned that the curriculum had not yet been developed for the biotechnology specialized
second year ~vhich ~vas due to commence in September 1996, for those biotechnologystudents
currently in the first year common health sciences program. Given the urgency of this situation,
according to Dr. Back, the Advisory Committee suggested that the Director of Health Sciences
(~'~. should "employ [him] to develop the curriculum because [they] were in a crisis situation". On
January :5, 1996, he met with Margar¢t Smith, the Director, and discussed "the position and the
situation that had to be addressed". Immediately follmving the discussion, Dr. Back ~vrote the
following letter to Ms. Smith. He testified that it reflects portions of their conversation.
Dear Ms. Smith:
~ you for meeting with me this morning. The opportunity to develop curriculum and
laboratory modules for the Biotechnology program is a tremendously challenging one. I came
away very enthusiastic about tbe position and fully appreciate the tight time constraints that define
Reflecting back on our discussion, I understand you require the following: outcome objectives
with laerformance elements developed for 3 courses {Biol. 251,252 & 253), and co-oral,areal
performance elements for Biochemistry (Chem. 251). Outcome objectives must be in sufficient
detail to support curriculum time-tabling and r~source allocation. Capital budget models for
laboratory programs will be developed in ~uffi~ieat detail to support 1996-97 budget submissions.
They will continue to evolve as the curriculum matures. Additional input and co-ordination with
the Development and M~-keting groups to expand awareness of the program amongst in~lustry
and to explore, potential external possibilities.
To facilitate accomplishing these objectives, I understand you [sic] be able to provide: 40 t~ per
week at a rate of $25.00/hour to Aprill,1996, office/desk space, computer account with lntemet
E-Mail, telephone, photocopier and laser printer access, business cards with $n appropriate title,
5
of development and the priorities is one
level take the of for the fall semester.
That same month, Dr. Back developing courses, laboratory objectives and
modules for the second year program. Development to the delivery stage was required because it
was necessary to acquire capital items and supplies in advance of the September commencement.
He was put on the payroll and received a regular pay cheque based on 40 hours per week at
$25.00 per hour, with statutory deductions for Income Tax, Employment Insurance and Canada
Pension. During the winter/spring period of 1996, he worked with other faculty members and
support staff, attended college-wide faculty meetings and spoke frequently with students. He
was under the impression that he was expected to attend the regular faculty meetings.
He also
travelled to Seneca College and met with the Biotechnology Program Director there to discussion
the respective programs of the two institutions, met with others in the biotechnology field in
Toronto, and with prospective employers in Kingston.Dr. Back testified that there was an
expectation in June 1996, that he would be teaching one particular course in September 1996,
and he had to and order the text for the at that time..
During the seven-month period, Dr. Back attended t~vo professional development courses at St.
Lawrence College, one in May and the other ti1 June 1996. He also attended the WHIMS course
on the safe handling and storage of hazardous substances, and received a certification from the
College for having done so. These were courses ~vhich were arranged for full-time, regular
faculty and/or staff.
During this time, Dr. Back testified, he discussed his role, his career, and his status with Ms.
Smith and she told him it would be unusual for a person not to be assigned to teach a course if he
or she had developed a program and the accompanying course materials. According to him, she
led him to believe that ~vhen the position for "Professor - Biotechnology" was advertised it
~vould be highly likely he would be the successful candidate. Dr. Back responded to the job
posting for ACAD-96-01 1 -Professor - Biotechnology in early June 1996, and was successful in
the competition. Prior to taking up the position he spoke ~vith Ms. Smith about the position and
the associated duties and at that time asked her about the one-year probationary period. He
testified that she informed him the one-year probationary period was for individuals with a
degree from the College of Education. He then requested that the 7 months he had spent working
at the College be credited towards his probationary requirement of 2 years and she told him that
she would look into that. According to Dr. Back, she pointed out that the probationary period
could be vie~ved in a positive light, in that she could not give him a full assignment, and he
would then have more time to do curriculum development. She did not, according to him, come
back to him with an answer as to xvhether or not the ? months could be credited to his
probationary term.
Dr. Back was appointed to the position of Professor · Biotechnology effective August 1, 1996.
He took up the duties of that position and began teaching classes in September 1996. He taught
through the fall, winter and spring semesters and in hla¥, 1997, approached Ms. Smith as he
wanted to get some confirmation about the security of his position since his wife found herself
affected by the health-care restructuring and had to decide ~vhether or not to accept an "exit
package" which offered her monies for retraining with a view to a career change. One of the
7
PROBATIONARY )
Counsel for the Union, Mr. Gottheil,referred the Board to the following cases:
v. 1 D.L.R. 3 W.W.R. 748
21 L.A.C. (3d) 389
18 L.A.C. (3d) 276
4 L.A.C. (4th) 102
9 L.A.C. (2d) 173
31 L.A.C. (3d) 411
Re ltuber and Co. (Canada) Ltd. And International Woodworl~ers of America
(1976), 11 L.A.C. (2D) 309
Re Sudbury and District Association for the Mentally Retarded and Canadian Union of Public
Employees, Local2599 (1984), 13 L.A.C. (3d) 385
Mr. Gottheil submitted that it is uncontradicted that the Grievor, Donald Back, worked as an
employee in an employment relationship with St. Lawrence College, commencing January 1996.
All indicia of employment are there, he argued, no matter what legal test one uses. The fact that
Income Tax, Employment Insurance a_nd Canada Pension premiums were deducted and were
contributed by the Employer means that from the Income Tax perspective he was an employee.
If one looks at the relationship and compares the employer/employee relationship to that of a
employer/contractor relationship, the four-part test . ownership of tools, chance of profit, risk of
loss, and control - to distinguish a contractor from an employee set out in Montreal Locomotive,
su£ra is not met under any of the headings. It was the College which had ownership of the tools
~'"'"N, (office, computer, e-mail, business card etc), not Dr. Back. There was no evidence, Mr.
,.
Gottheil stated, that Dr. Back used any of his own tools. There was no chance of profit or risk of
loss, he submitted, in other words, them is no evidence that Dr. Back was to undertake a finite
task for a fixed sum, a_nd if he accomplished it more quickly, would increase his profit, a_nd if he
carried it out, in a shorter period of time, would risk a loss. When it was put to Dr. Back that he
was told to go away a_nd do the job a_nd come back, he disagreed with that proposition.
Mr. Gottheil argued that since the Montreal Locomotive decision, the trend in arbitration has
been to move beyond the control factors and look at a purposive, more holistic approach.. The
evidence demonstrates, according to Mr. Gottheil, that Dr. Back was a full participant in the
faculty, going to staff meetings, taking mandatory and faculty professional development courses
at no cost to himself, all activities which are not indicative of a contractor. Dr. Back was, he
maintained, a "contract employee, not a contractor".
If the Union is correct, Mi'. Gottheil submitted, the inihal relationship was full-hme from
10
January to the end of May 1996, half-time during June a_nd July 1996, a_nd that, combined with
Dr. Back's full-time appointment which began August I, 1996 to his termination on April 30,
1998, has completed his probation period.
The College
Counsel for the College, Mr. Riggs, referred the Board to the following cases:
St Clair College and Ontario Public Sew&e Employees Union
(Unreported award of board of arbitration (Swan, chair) dated June 17, 1996)
Re St Lawrence College and OPSEV
(1987), 32 L.A.C. (3d) 322
Loyalist College and Ontario Public Service Employees Union
~reported award of board of arbitration (Bendel, chair) dated February 23, 1994)
Humber College and Ontario Public Service Employees U~iion
(Unreported award of board of arbitration (Swan, chair) dated November 20, 1986)
George Brown College and Ontario Public Service Employees Union
(Unreported award of boa_rd of arbitration (Mitchnik, chair) dated September 24, 1991
St. Lawrence College and Ontario Public Service Employees Union
(Unreported award of boaxd of arbitration (Brent, chair) dated November 8, 1989)
Centennial College and Ontado Public Employees Service Union
(Ullreported award of board of arbitration (Samuels, chair) dated July 27, 1989)
Fanshawe College and Ontario Public Service Employees Union
(Unreported award of boa_rd of arbitration (M. ?ichcr, chair) dated November 15.1989)
Fanshawe College and Ontario Public Service Employees Union
(Unreported award of board of axbitration {II. Brown, chair) dated November 15, 1989)
Fanshawe College and Ontado Public Service Employees fJnion
(Unreported award of board of arbitration (Brent, chair) dated April 24, 1987)
Humber College and Ontario Public Sew&e Employees Union
(Unreported award of boa_rd of arbitration (iqjlOpf, chair) dated December 3 1, 1990)
11
Fanshawe College and Ontario Pubfic Servke Employees Union
(Unreported award of board of arbitration (Brent, chair) dated June I8, 1991)
Fanshawe College and Ontario Public Servke Employees Union
(Unreported award of board of arbitration (Brent, chair) dated November 28 1989)
Ctt6t ¢olllgiale and Ontario Public Service Employees Union
(Unreported award of board of arbitration 0VI, Picher, chair) dated July 28,1992)
Centennial College and Ontario Public Employees Service Union
(Unreported award of board of arbitration (Samuels, chair) dated December 8, 1988)
George Brown College and Ontario Public Service Employees Union
(Unreported award of boa_rd of arbitration (Mitchnik, chair) dated November 14, 1990)
Mayer v. J. Conrad I. avigne £td.
CA (1979) 27 O.R. (2d) 129
Mr. Riggs submitted that during the period January to August 1996, Dr. Back entered
contract, a series of contracts begirming in Jax~uary 1996 for him to perform certain tasks for the
College", and that during that period he was "very much in the same position as any contractor
who is doing work for a party that wants paxticular functions performed, paxticularly where that
person has particular expertise a_nd the organization wants pasticulax professional services
performed". He likened his situation to that of a lawyer, a building contractor, or a piano tuner,
a_nd stated that the College relied on Dr. Back's expertise to produce curricula for specific
courses. During that time, he was, according to Mr. Riggs, not treated as an employee. He was
paid an hourly rate, was free to come and go as he chose, and was not subject to the kind of
supervision one would expect for an employee. Dr. Back's description of his interaction with
Margaxet Smith, the Director of the School of Health Sciences, was that he kept her apprised of
his progress.
Mr. Riggs submitted further, that Dr. Back was not a member of faculty, as argued by Mr.
Gottheil. He was paid differently from faculty members, and did not during that period perform
the crucial function of a faculty member which is to teach, in the sense of human interaction with
students, and teaching has been found by a number of arbitrators, according to Mr. Riggs, to be
12
the prime function of a professor. That does not mean that a faculty member cannot engage in
CUlTiculum development; it may be the only function that a faculty member may perform; it may
be said that a teacher teaches, stops teaching to do curriculum development and then returns to
teaching. Dr. Back, however, did no teaching at all and if he was not teaching, he was not a
professor performing work within the bargaining unit.
Mr. Riggs submitted that the Union has to be able to demonstrate that the period from January
through July 1996, should be considered as 7 months to be credited tmvards the 24 months of his
probationary time. Counsel for the Union, in arguing that it should be, has referred the Board to
the classification of 'Professor" set out in the Collective Agreement (,p. 145) and this brings up
the question of ~vhether or not an individual ~vho is carrying out curriculum development, and
only curriculum development, is appropriately placed in the Class Defmition of "Professor".
Mr. Riggs argued that he or she would not be appropriately placed in the "Professor" category,
since, 'if a person not teaching, in the sense of human interaction with students, he or she does
not fulfill the classification requirements of a professor performing work within the bargaining
unit.
Mr. Riggs referred the Board to Article 27.04 B in response to Mr. Gottheil's argument,
27.04B Such lists shall be posted for at least two weeks and
the information contained therein shall be considered correct for all
purposes unless the employee disputes its accuracy within such
t~vo week period by filing written notice thereof with the College.
He refelTed to the importance of the substance of this article particularly when more than one
employee may be affected and the wrong person may get laid off.
Mi'. Riggs submitted that one can draw no conclusions from either the appearance of
~probationary/non-probationary" at the top of Dr. Back's S.W.F. or the assignment of a couple
of hours of overtime to him.
With respect to the issue of onus, Mr. Riggs submitted that all cases under this Collective
Agreement indicate that there is an evidentiazy onus on the Union to proceed first.
DECISION
The pasties have asked the Board to rule on t~vo preliminary matters prior to their presenting the
merits of their case respecting Dr. Back's dismissal. The first is to determine ~vhether or not Dr.
Back's association with St. Lawrence prior to August 1, 1996, should constitute part of his
pmbationazy period, and secondly, should the Board find that it does not, which party should
proceed first.
Status of the Grievor
The Board has been asked to determine the status of the Grievor, Dr. Back, from the time he
commenced work at the College in Januazy, 1996, to the point in time when he began to work as
a full-time professor in the Biotechnology Program at St. La~vrence College. In other words, it
must decide ~vhether or not he was a probationazy employee within the meamng of the Collective
Agreement during that period. The probationazy period is defined as "t~vo years continuous
employment". Since the Collective Agreement refers to academic staff, it can be assumed that
this means academic employment.
Dr. Back began work at St. La~vrence College in Janua_ry 1996 and worked his last day on April
30, 1998. In 1996 he worked approximately 10.5 months (½ January, ½ June, ½ July); in 1997
he worked 12 months, in 1998 he worked 4 months - a total of 28 months. In order to move
from probationazy to regular the status, he requires, according to Article 27.02 A 1 of the
Collective Agreement, "t~vo years' continuous employment" as "a full-time employee" , or,
according to Article 27.02 B, 24 months of non-continuous employment in a 48 month period.
Dr. Back does not, in spite of his lengthy university teaching experience, fall into one of the
categories for which the probationazy period is reduced to 1 year (Article 27.02 A 2). The last 5
14
months in 1996 (August 1 to December 3I), the 12 months in 1997 and the 4 months in 1998
(January 1 to April 30) constitute 21 of the required 24 months and this is not disputed.
Remaining on the payroll would, in the opinion of the Boa]d, qualify as an indicator of
"continuous employment". There was no evidence that Dr. Back was removed from the payroll
for the two two-week periods, one in June and one in July 1996.
The Board could find that during the 6 ½-rnontla period, (mid-January to July 31) Dr. Back was
art independent contractor providing services to the College
a member of the Bargmning Unit
a professor in the Biotechnology Program or in any other program.
art employee of the College
art employee with the College in a position ordinarily outside the bargaining unit
a sessional employee of the College
art employee of the College on contract.
There was no evidence to indicate that Dr. Back's status changed between Janua_ry 16 and July
31, 1996. If the Board finds that his status was that of art independent contractor for the
6 ½ month period, his probationasy period would begin August I, 1996 and end July 3 1, 1998.
If it fmds that his status was that of a member of the Bargaining Unit, or a professor in the
Biotechnology Program for the seven-month period, his probationary period would begin in
January 1996 and end in January 1998. If it finds that he was art employee in a position
ordiiy outside the bargaining unit, he could receive proportionate credit if it is found that he
was teaching. If it _finds that Dr. Back is a sessional employee who is continued in employment
for more than the period set out in Appendix VII, he could receive credit towards his
probationary period. If it f'mds that his status was that of a college employee on contract, his
probationary pehod would begin August 1,1996 and end in July 3 I, 1998.
A finding that his probationary period began in January 1996, would mean that the College
would bear the onus of proving that it bad just cause for his dismissal. The result of a finding
15
that his probationary period began in August t, 1996, would mean that the Union would bear the
onus of proving the College had acted in bad faith.
The Contract
Dr. Back's letter to Ms. Smith dated January 5, 1996 refers to "40 hrs per week at a rate of
$25.00/hour to April 1, 1996; Ms. Smith's letter of January 16, 1996 refers to her being ~in a
position to guaraxttee a contract for eight (8) weeks, 40 hrs per week at a rate of $25 per hour".
Dr. Back's letter set out his understanding of his assignment:
Outcome objectives with performance elements for 3 courses (Biology 25 1,252
8: 253) in sufficient detail to support curriculum time-tabling and resource
allocation.
co-ordinated performance elements for Biochemistry (Chem 25 1)
Capital budget models in sufficient detail to support 1996-97 budget submissions.
Additional input and co-ordination ,vith the Development and Marketing groups.
In her letter of January 16, 1996, Ms. Smith stated that Dr. Back's %nderstanding of [their]
development requirements and the priorities are [sic] correct". She also asked him ~to take on
the development of Chem251 for the fall semester". Dr. Back carried out these tasks.
Ms. Smith's letter goes on to suggest that there might be ,vork beyond the eight-week period:
~As the College planning process moves along, I should have a better idea by February regarding
additional development resources." There was no evidence of a contract form or of contract
renewals for any specific length of time. The arrangement appears to have been rathe/ fluid, one
,vhich flowed from 8 weeks in the winter, into the spring, and then, in the summer into the
regular, probationary full-time position as of August 1, 1996, following Dr. Back's success in
the job competition for ~?rofessor, Biotechnology". The offer by Ms. Smith, Dr. Back's
attendance and work ,vhich were indicative of his acceptance, and the College's payment for the
work, together confirm that there was a contract bet~veen the College and Dr. Back.
Finding:
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,,,. of an organizational test. The application of these tests has frequently related to a determination
of ~vhether or not bargaining unit work was being performed by persons outside the bargaining
unit. In the case at hand it is appropriate to consider both the degree of control exercised by the
employer and the degree of independence of the individual in the context of the workplace and in
relation to the employer, as well as other factors. An examination of the Grievor's situation,
based on his testimony and available documenta~ evidence, demonstrates the following: Dr.
Back was assigned an office at the College, and was provided ~vith a college telephone
extension, college computer and college business card. He did not work from an office outside
the College, have a business telephone line outside College or maJ~e use of a business card other
than the one provided by the College. Dr. Back did not work independently of the college
faculty and the Director of the School of Health Sciences. He testified that he kept Ms. Smith
apprised of his progress and he appears to have carried out the directions which she gave him.
For instance, he did not take the decision to attend at other Colleges or at conferences
independently. He attended work 5 days a week for 8 hours a day with the exception of a two-
week period in June and one in July. He worked during that time with other members of faculty
and support staff, had discussions with students ~vho approached him, and attended college
faculty meetings. He presented himself extemally as the individual undertaking curriculum
development at the College ~vith his business card provided by the College and with his and its
name thereon.
Dr. Back did not contract to do a specific job for a specific sum of money but was paid an hourly
wage for the time that he worked. This was set at 40 hours per week and the expectation that he
would work 40 hours per week is confirmed by his being placed on the payroll on the basis of 40
hours per week. There was no question of potential profit or risk. Dr. Back was on the college
payroll from the outset. Deductions were taken from his gross hourly wages for Income Tax,
Employment Insurance and Canada Pension. If the Employer was remitting Employment
Insurance and Canada Pension on his behalf, it would also be paying the corresponding
Employer's portion.
18
Member of the Bargaining Unit
Professor
ûÎ ÷ÏÌÐÍÃ×× ÍÖ ÈÔ× ùÍÐÐ×Õ×
However, the work that Dr. Back
Dr. Back, could receive proportionate credit towards seniority.
carried out, (the “position”), is not one which is “ordiily” outside the bargaining unit, rather it
is work that the Board has found to be bargaining unit work andwas an assignment undertaken
“on an unusual or isolated basis”.
The Board that Dr. Back’s situation is not covered by Article 27.03 F 2.
Appendix VIII to the Academic Collective Agreement defines sessional employees:
The Academic Collective Agreement, refers to sessional
and employed on a part-time or
The seniority of employees is dealt with as follows:
Sessional employees are defined in Article 1, the recognition clause as “teachers, and
librarians employed on a part-time or sessional basis”, that is on “an appointment of not more
than 12 months duration in any 24 month period”. In Appendix VIII a sessional employee is
defined as full-time employee appointed on a sessional basis for up to 12 full months of
or noncontinuous accumulated employment in a 24 calendar month and a
sessional basis is defined as appointment of not more than 12 months duration in any 24
month period”.
The documentary evidence and the testimony of Dr. Back do not indicate any particular category
under which he was employed.He was employed full-time (40 hours a week) undertaking a
task out by teachers, but not as a “professor”,
and was employed, the time of his
hire to the time of his appointment to a regular,full-time, professor position for 8 weeks
extended to approximately 25 weeks,if the two two-week periods in June and July are
discounted, that is, for “a period of not more than 12 months”.
While the category of “sessional” may normally be applied to staff who are employed in the
instructional component of teaching there is nothing in the Collective Agreement
excludes Dr. Back the category of “sessional employee”.
Dr. Back could be said to be a “sessional employee”, under the terms of the
Collective Agreement.
Finding:
éÇÏÏÛÊà ÍÖ öÓÎØÓÎÕÉ
.
.
.
.
.
was not an employee in a position ordiily outside the bargaining tit
.
.
probationary period &es not exist outside the Collective Agreement. The probationary period is
triggered ~vhen an employee becomes a member of the Bargaining Unit. That may be at the date
of hire if one is first hired directly into a bargaining unit position, or later in one's college
employment if one moves from a position at the College outside the Bargaining Unit into a
position within the Bargaining Unit, or if one has moved fa'om a predecessor institution.
Article 27 JOB SECURITY addresses the probationary period, the move to regular status, and
the related calculation of seniority. Article 27.01 treats the situation of a "full-time employee"
,vho having completed his/her probationary period moves to "regular status", following
completion of the probationary period. Article 27.01 refers to "full-time employee", and Article
27.03 C refers to "every new full-time employee in the bargaining unit". It is the opinion of this
Board, that the term "full-time employee" as used in the probationary aaticle of the Collective
Agreement (Academic) must be interpreted to mean an employee within the Bargaining Unit. It
would expect to find specific wording in order for the term to be considered more broadly, in
other words, wording which is indicative of an expansion of probationary credit for a member of
the Bargaining Unit, beyond the Bargaining Unit itself, for example ,vording such as .'an
employee of the College'. A reduction in the probationary period has been allmved under
circumstances ,vhich are indicative of a bargaining unit member's pedagogical training or
previous college experience in the same classification. Articl~ 27.02 A 1 quantifies the
probationary period as txvo years unless the bargaining unit member meets the criteria of certain
exceptions, ,vhich are pedagogically based. That t~vo ¥¢a.r~ is within the Bargaining Unit. Dr.
Back does not fall into any of these exempted categories.
The probationary situation of an employee of the College on contract is not specifically
addressed in the Collective Agreement. The probationary situation of sessional employees
however, is dealt with in Appendix VIII:
If a sessional employee is continued 1o employlll~nt for more ~ thc period set out in
Appendix VIII, 1, such 8rl employee shall be considered I~ having completed the f~t year of the
two year probationary period nad therent~er covered by thc other provisions of thc Agreement.
Thc balance of such 811 employee's probationary period shall bc 12 fill] IllOllth~q of continuous or
non-continuous accumulated employment during thc immediately following 24 calender ~llonth
period.
Dr. Back ~vas not continued in employment as a sessional employee for more. than the period set
out in Appendix VIII, 1, (up to 12 months of continuous or non-continuous accumulated
employment in a 24 calendar month period) a_nd therefore, he would not be covered by the
reduction in probationa~ time set out above for sessional employees.
In the result, Dr. Back is required to serve a twvo-year probationa~ period ~om the time he
enters the Bargaining Unit, which was August I, 1996, His probationa~ period is not,
therefore, concluded until July 3 1, 1998
Seniority Lists:
The Employer posted the Seniority Lists as of December 3 1st of the previous yea_r, according to
Article 27.04A of the Collective Agreement on Ja~nua~ 16, 1997 and Februa~ 4, 1998. Dr.
Back was listed on both as a probationa~ employee, in the first ~vith seniority of 152 days a~nd in
the second with seniority of 1 year a_nd 152 days. He testified that he did not seek out or read
the lists. Nothing, however, tums on this since a~n individual's seniority is determined according
to the Collective Agreement and is correctable both ~vithin or subsequent to the t~vo-week
assumption period set out in Article 27.04 B. (See Fertlcrbcr, supra)
Standard Work Form and Overtime:
The Union asks the Boa_rd to consider that Dr. Back was led to believe that he was no longer a
probationary employee due to the checking of ~not probational" on his S.W.F. , his
conversation with Ms. MacAulcy ~vhich he believed confirmed a non-probationau status a~nd
assignment of overtime, ~vhich was out of line ~vith the Collective Agreement. Article 11.01.J 3
sets out this restriction:
25
Conclusion:
Order of Proceeding
.
without however en
I concur,
of the contract raised by the