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HomeMy WebLinkAboutBaduk 99-08-1198C192 IN THE MATTER OF AN ARBITRATION BETWEEN: COLLEGE O.P.S.E.U. Before: Susan Chair Murray, Union Nominee Jacqueline Employer Nominee Appearances: For the Union: Andrew Lokan, Counsel Michael Badyk, Grievor Robert Mills, Chief Steward For the Employer: Ross Dunsmore, Counsel Mile Komlen, Student-at-Law Hyacinth James, Senior Human Resources Consultant THIS MATTER WAS HEARD IN TORONTO ON NOVEMBER AND APRIL DECISION This grievance concerns the “seniority” granted to the Michael Badyk, in view of his prior service with the employer.The union contends that the seniority credit given contravened the collective agreement. The employer, also referred to as the “College”, seeks the of the grievance and, indeed, asserts that the was entitled to no seniority credit whatsoever. In fact, he initially received nine months’ credit, which was later reduced to eight months.There was no objection to our jurisdiction to hear and determine the grievance. The were agreed to by the parties.No witnesses were called; documentary material was on consent.The factual context in which this grievance is to be determined is next recounted. The format of the generally follows that agreed to by the parties, except where grouping of several points is convenient or better the chronology.The import of some of the references will not be clear until the parties’ submissions and the various collective agreement provisions are set out. FACTS The grievor was hired into a full-time continuing position with the College effective September 2. The appointment letter, dated July read, in part: “The normal two year probationary period has been adjusted to recognize the 9 months of sessional service that you have accumulated.As a result, your seniority date is 1985 12 01 and you will reach the end of your probation period on 1987 12 Prior to the of his full-time continuing appointment, the had worked at the College for various periods as follows: Sept 1981 May 1982 Full Tie Human Studies Sept 1982 1982 Fug Time 3 classes Human Studies, 2 Technology Jan 1983 May 1983 Part Tii (2 classes) Sept 1983 May 1984 Full Time 3 classes Human Studies, 2 Technology Sept 1984 Part Tii Technology (2 classes) Jan May 1985 Part Technology (2 classes) June August 1985 Part Time Summer Intake Human Studies (2 classes) Sept 1985 May 1986 Full Time Human Studies. [It should be noted that the union was only relying on the periods, not those worked on partial load, in calculating the seniority entitlement.The parties’ respective methods of calculating seniority entitlement are reflected Prior to April the grievor had initiated inquiries with the College as to his seniority entitlement. The employer, through Joanne Maguire (manager, hr. systems) had responded in writing on April recalculating his seniority entitlement.The result was to reduce his entitlement to eight months from nine. No grievance was at that time. Nor was a grievance filed regarding the calculation of the grievor’s seniority entitlement prior to the instant grievance dated December There was no agreement between the employer and the grievor that his probation would consist of “twenty-four months in forty-eight” [as detailed In a memorandum to Hyacinth James in human resources dated February 17.1997, the grievor noted an earlier request that his academic seniority be reviewed in light of past service. The memo recounted that, as a result, his seniority was reduced by one month.He formally requested that the status of his seniority be reviewed. It was agreed that, following the February memo, Maguii verbally advised the grievor that the recalculation of seniority entitlement as per the April memo was correct. On November the sent an complaint to James, outlining his prior service and asserting a higher seniority entitlement than that he had been accorded.The employer responded in a memorandum dated December indicating, inter alia, that his seniority was calculated in a manner consistent with the College’s practice. The collective agreement in force at the time the grievor was hired into a full-time continuing position contained wordii similar to that in the current collective agreement.Excerpts the agreements of 1989-91 and the collective agreement under which this grievance arises were tendered in evidence and will be dealt with further below. SUBMISSIONS The submissions of the parties are next set out in highly abbreviated form. Union counsel asserted a common sense proposition that the length of the prior relationship between the employee and the College should be recognized, subject to the precise wording of the collective agreement.It was contended that any ambiguity should be interpreted in favour of this common sense view of seniority.Counsel reviewed the and the various provisions in the collective agreements in some detail. Counsel noted that the issue was the calculation of the grievor’s prior service for those periods when he was employed on a full-time basii, in accordance with article 27.02 B. It was argued that those periods were not unless and until the grievor received a appointment.At that point, the grievor became entitled to count that prior service, to the extent permitted by provisions in the collective agreement.Counsel submitted that the concepts of seniority and the probationary period were closely linked.Essentially, counsel argued that the collective agreement, including the relevant Appendices, created a “rolling window” of a eight month period prior to the date of the grievor’s full-time continuing appointment during which the grievor was entitled to have his prior full-time service credited toward the probationary period. When the “rolling window” was applied to the grievor’s circumstances, he was entitled to sixteen months’ credit for that prior service, leaving eight months to be served as probation. Counsel contended that no other provisions ln the collective agreement negated the union’s approach to calculating prior service.Specifically, Appendii VIII was not relevant herein as that provision addressed circumstances where the individual was retained too long a period and at too concentrated a teaching load, in the provision mandated an automatic conversion to a till-time continuing appointment. With respect to the College’s intial calculation months and then reduction of the credit to eight months, it was submitted that the College could not rely on its original calculation as “bindii” on the grievor with regard to his prior service entitlement and then resile that “deal” to reduce the entitlement. Cases referred to included: St. Lawrence November (Brent); (unreported, February Employer counsel, as well, reviewed the various provisions of the collective agreeements in 4 support of his assertion that the was entitled to no credit for his prior service or, in the alternative, to eight months’ credit or, in the alternative, to nine months’ credit.Counsel also contended that the operation of article 27.03 C, which was not in the collective agreements prior to 1989 and, thus, was not considered by the College at the time of the full-time continuing appointment, would limit the prior service credit to a maximum of twelve months. Counsel distiihed those cases referred to by the union, in part on the basii that the language of the current collective agreement had changed, in particular, article Employer counsel argued that the various provisions of the collective agreement, when read together, grounded a conclusion that the was not given a full-time continuing appointment under an arrangement wherein the probationary period was to be “twenty-four months in eight” on an absolute or “rolling window” basis. Consequently, the was required to serve a twenty-four month probationary period since he did not fall into a special category in article 27.02 A 2. To hold otherwise, counsel contended, would create undue particularly in connection with the performance review schedule in article 27.02 C. Counsel argued that shortening the probationary period was counterintuitive, in that the parties expected time to evaluate an individual’s performance.Further, in counsel’s view, the phrase “on that basis” in Appendix VII, Part I, 1 (i) should be read, in the context, to warrant zero prior service entitlement since the “basii” on which the received a continuing appointment, as noted in his appointment letter, was not a probationary period of “twenty-four months in forty-eight”. In the alternative, the credit for prior service should be limited to the eight months, as corrected by the College in its communication with the when he asked that his credit be reviewed. In the further alternative, the credit should be limited to the nine months which was initially credited and on which basis the accepted his full-time continuing appointment in 1986. Cited were:Seneca (unreported, February (Brent); College June 11,199 1) (Swan); Fansbawe (unreported, (Brent). In reply, union counsel distinguished those cases cited by employer counsel.It was contended that the calculation of the “rolling window” was not diiult. Further, counsel rejected the interpretation asserted with respect to Appendix VII, Part I, I(i), specifically the phrase “‘on that basis”. regard to article 27.03 C, counsel argued that the provision was applicable only to “new” employees, not those with prior service as a sessional. Moreover, to restrict the grievor’s prior service would to give the current collective agreement a retrospective application and would effectively lengthen the grievor’s probationary period to twenty-eight months.In the alternative, if article 27.03 C was applicable, the was entitled to twelve months’ credit for his prior service, rather than sixteen. DECISION It is useful to first set out the relevant provisions of the current collective agreement which we must interpret. For our purposes, except as specifically noted, there are no in the language of the current collective agreement those in the periods and 1989-91, although the relevant provisions appear in diirent places in those various agreements. Article 27 JOB SECURITY On successful completion probationary period, a employee shall then be appointed to regular status and be credited with seniority equal to the probationary period served. Probationary Period A full-time employee will be on probation until the completion of the probationary period. This shall be two years’ continuous employment except amended in this Article. 27.02 A 2 The probationary period for the following will be one year’s continuous employment: (i) a employee who has completed a probationary period at the same, or another Ontario College of Applied Arts and Technology, and is hired by the College in the same which the employee held during the previous probationary period. (ii) a teacher who holds one of the following professional and who has one year or more of full-time teacbing experience in Gntarlo: valid Ontario Teacher’s Certificate; Bachelor of Education Degree; of Education Degree. a full-time who holds one. of the following professional and who has one year or more of experience in an educational in valid Ontario Guidance Specialist’s Degree in or Guidance. (iv) a Ml-time librarian who holds a Bachelor’s Degree in Science or a Master’s Degree in Library Science and who has one year or more of full-time experience as a professional ill 27.02 B The probationary period shall also consist of 24 full months of non-continuous employment (in periods of at least one month each) in a 48 month period.For the purposes of 27.02 B, a calendar month in which the employee completes IS or more days worked shall be considered a “full month”. If an employee completes less than 15 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 month shall be considered to be completed. During the probationary period an employee will be informed in writing of the employee’s progress at intervals of four months continuous employment or full months of accumulated non-continuous employment and a copy given to the employee. it is understood that an employee may be released during the five months of continuous or non- continuous accumulated employment following the commencement date of the employee’s employment upon at least 30 calendar days’ written notice and during the remainder of the If requested by employee’s probationary period upon at least 90 calendar days’ written notice. the employee, the reason for such release will be given in writing. seniority 27.03 A The calculation of seniority for full-time employees whose service includes some work performed during certain periods shall be governed by the provisions of VII. Notwithstandii anything in this Agreement, it is agreed that every new full-time employee in the bargaining unit, except those on leaves under Artiile 22. Parental leave, shall serve at least one year of active employment in the bargaining unit as a probationary period. APPENDIX VII SENIORITY CALCULATION AND PREDECESSOR INSTITUTIONS PART I SENIORITY CALCULATION The following provisions shall govern the calculation of seniority for employees whose service includes some work performed during certain periods, as follows: (i) effective September seniority shall include the period of 24 full months of non- continuous employment (m periods of at least one full month each) in a 48 calendar month period, for those who completed a probationary period on that since that date.For this purpose, only the period after September shall be considered and no prior employment or calendar period shall be taken into account or credited. VIII SESSIONAL EMPLOYEES A sessional employee is as a employee appointed on a sessional for up to 12 of or non-continuous accumulated employment in a 24 calendar If a sessional employee is continued in employment for more than the period set out in Appendix VIII, 1, such an employee shall be considered as having completed the first year of the two year probationary period and thereafter covered by the other provisions of the Agreement. The balance of such an employee’s probationary period shall be 12 full months of continuous or non-continuous accumulated employment during the immediately 24 calendar month period. The submissions of counsel have been considered.Further, the cases cited have been reviewed. We do not regard it as necessary to discuss those cases extensively; references are made to the decisions as appropriate. 8 We agree that the various provisions of the collective agreement must be read together and interpreted as a functional whole to the extent possible.Moreover, these are sophistiited operating in a complex academic environment.In our view, the concepts of seniority and probationary period are linked in the collective in that the parties have created a for considering the prior service of employees who subsequently receive appointments.That rejects some forms of prior servicealtogether and restricts other forms to a temporal context. noted in Northern Colleee, supra, prior service in form of partial load or part-time teaching the The union herein does not count toward the calculation of the probationary period and seniority. is not seeking to have such periods worked by the counted, rather, its claim is restricted Accordingly, the solely to the prior full-time periods, as set out in item 3 of the agreed reasoning in supra, is not of assistance in the issue before us. As well, we regard the decision in Seneca supra, as inapplicable to the instant grievance. In that case, the arbitration board determined that the individual’s resignation his full-time continuing teaching position resulted in a rupture of the employment relationship so when that, the individual was subsequently rehired to a continuing teaching position, he was not able to count his prior service towards his probationary period so that he had completed probationary period as of the date of his rehire.It was held that the individual was entitled to serve only a twelve-month probationary period because of other provisions in the collective agreement which recognized his prior service to a maximum of one year’s credit toward what We do not with the analysis would otherwise have been a twenty-four month probation. in Seneca supra, but the case is not helpful in resolving the question entitlement toward his probationary period this Finally, the decision in supra, was to by employer counsel in the context of passages therein which noted that the collective agreement governs the calculation of the probationary period.In that case, the arbitration board was satisfied that the individual’s i probationary period was properly calculated.We take no issue with that decision but, again it is not apposite to the instant circumstances. More is the reasoning in Lawrence supra, and in supra Neither case precisely on point but there are aspects of both decisions are applicable herein We are not satisfied that the cases are since, for the purposes the are relied on, the language in the relevant collective agreements does not We accept the proposition, enunciated in supra, that an individual who is given a time continuing appointment becomes entitled to all the rights enumerated in the collective agreement, including the counting of some forms of prior service toward the calculation of the probationary period.We likewise the finding that [now] Appendix 3 was intended as a protective device to provide for “automatic” conversion to a continuing appointment where a sessional is continued in employment a period in excess of that The issue in St. Lawrence supra, concerned the calculation of prior service toward the probationary period.The indiiual was with four months of such service and that figure was reflected in her appointment letter to the full-time position. Ultimately, the arbitration board determined that the calculation was incorrect and the individual was entitled to one additional month of credit.In reaching that conclusion, the arbitration board rejected the assertion by employer counsel that the individual had agreed to the month figure and could not challenge that number, particularly since no grievance had been at the time. The arbitration board held that the individual could not contract for lesser rights than those provided under the collective agreement.Accordiily, she had not waived, nor was she otherwise estopped, from challenging the calculation of her prior service. that conclusion, we agree. Our acceptance of proposition also disposes of the argument by employer counsel that the grievor should be restricted, in the alternative, to eight or nine credit prior service. We are not persuaded that, in accepting the appointment to a full-time position, the was bound by the College’s calculation of his prior service if such calculation was not in accordance with the collective agreement.Conversely, we do not that the College would be bound to the figure in the appointment letter iftbat was in error: see, The context in which such errors may be corrected may well an impact on the appropriate relief which should granted but cannot generally serve to “carve in stone” error which negatively affect the seniority rights of other employees. We have the various provisions of the collective agreement regarding the We conclude that Appendix VII, Part I, I(i) probationary period and the calculation of seniority. creates a ‘rolling window” of twenty-four months in forty-eight, as asserted by the union, which an individual’s prior may be examined purposes of seniority calculation, reject the argument of employer counsel that the phrase “on that in the provision be interpreted to mean that there must be a agreement in the appointment letter to that effect before an individual is entitled to benefit of the “rolling window”. We also agree with union counsel’s submission that the seniority in VII, Part I, 1 (i) is linked to the calculation of the period through article 27.02 B.In our view, the collective agreement language, when read together, creates a for calculating prior service and may reduce the probationary period from the usual twenty-four months.While we concur with employer counsel that the does not within exceptions in article 27.02 A 2, we are not persuaded that the not covered by article 27.02 B.On the face of that provision, the probationary is “also” as twenty-four months in eight. There is no dispute herein that the months in question are within the meaning of the article. In the instant case, that would result in the credit of months of prior service toward the probationary period.As noted, that conclusion is not the end of the matter. Employer counsel submitted, in part, that a probationary period was necessary to the capabilities of an employee. We agree with that general proposition the collective agreement, however, the parties have negotiated a limitation on the probationary period would otherwise apply. This arbitration board must respect that bargain. We also with employer counsel that the “‘rolling window” approach poses In our view, the collective agreement provides a “formula” for calculating prior service credit which is readii ascertained at the time the appointment to a f&time position is offered and accepted. Indeed, the appointment letter includes a calculation of such credit. The fact that the figure was erroneous in this case in that the collective agreement was improperly interpreted does not prove that the calculation is unworkable. Despite our initial comments about the union’s calculation of sixteen credit, we are of the view that, in the instant case, no more than twelve months’ credit may be granted. The current collective agreement the following provision article 27.03 C: ‘Wotwithstandii in this Agreement, it is agreed that every new employee in the bargaining unit, except those on leaves under Article 22, Parental leave, shall serve at least one year of active employment in the bargaining as a probationary period.” provision first appears in the current collective agreement. However, it is this agreement under which the grievance was tiled. Union counsel several not holding this article applicable in the case. We intend to deal briefly with each in While the grievor was not a ‘hew” employee in the sense that be had prior teaching service with the College, we are satisfied that he is a “new full-time employee the for purposes of the applicability of this article.Our conclusion is reinforced by the language of the article in that the provision applies anything in this Agreement” and covers “every” new full-time employee in the bargaining unit. We agree that, as a general principle, provisions are not given retrospective application.However, we derive our the instant collective agreement in consequence, are bound to give effect to the terms conditions in that agreement.It well be that, had the his grievance under a predecessor agreement, the result may have been But, we have determined that, the grievor is entitled to challenge the calculation of his prior at the point in time the instant was he must do so within the conks of the current collective agreement. While, one perspective, this reasoning may appear to impose a probationary period of twenty-eight months, the probationary the context of the collective agreement remains twenty-four months. It is simply that the priorservice is capped at twelve months because of the operation of this article. That is no conceptually, the “loss” of prior service as a result of the operation of the “rolling window”. For the foregoing reasons, we that the grievance is allowed to the extent that the grievor is entitled to twelve months’ credit toward seniority and the calculation of the probationary period as at the date of his appointment to a continuing position, effective September 1986. Obviously, the probationary period has long since passed.Having issued our declaration as to the grievor’s entitlement, we remain seized to deal with any out of the interpretation or implementation of this decision. DATED this August Chair concur” (with addendum) Murray, Union Nominee “I Jacqueline Campbell, Employer Nominee member reluctantly concurs with the decision of the Chair What is not so clear is the It is obvious that the probationary period of one year must be served. This member would argue that the use of the word relationship between probation and seniority. credits to apply to the calculation of seniority, severs the between calculation of seniority The calculation of those credits earned prior service does not interfere with and probation. credits to be calculated are applied the employee the mandatory one year of probation. has completed probation; the point at which the employee may actually use their The interpretation given the grievance by the Chair allows the grievor to apply more credits towards his seniority than calculations made by the employer and it is on that this member concurs. Murray