HomeMy WebLinkAboutNaylor 99-08-20-and-
Oscar Naylor has been a member of the College's permanent academic staff
since 1985. Until January of 1989 he taught a full course load of eighteen hours a week.
Then he learned he had multiple sclerosis. He went on sick leave for some months and,
beginning in July 1989, began to get long-term disability benefits. These have continued
to the present In June of 1990 Naylor gave the College a letter from his doctor stating
that his medical condition allowed him to teach up to four hours a week. Since then and
to the present, under arrangements with me College, he has taught a selection of
courses, with hours totalling between two and six hours a week in most semesters.
At the beginning of each semester Naylor and the division chairman have dis-
cussed his physical capacity to work during that semester. Once a decision has been
made, the assignment has been confirmed in a letter from the chairman, a copy of
which Naylor has signed as his acceptance of the terms set out Each letter has said
mat Naylor was employed as a "Part-time professor" for a stated time period and num-
ber of hours per week at the rate of $88 per hour including vacation pay. The letter has
also contained the sentence, "This employment will be temporary and will not be COV-
ered by the collective agreement for academic employees."
On June ?th, 1997, Naylor formally grieved that 'the College has violated the col-
tective agreement, especially Article 14, when they paid [him] as a pan-time teacher
rather than according to me rates set out in Article 14.08." At the hearing the union said
that the situation was governed by arts. 14.02 C 1 and 14.02 C 2:
14.02 C 1 A full-time employee may request and, with the approval of the Col-
lege, may undertake a less than full-load assignment for a mutually agreed
period.
14.02 C 2 Such employee shall be paid on the basis of pro-rata salary rather
than on an hourly rate. Seniority shall accumulate on a pro-rata basis. The meth-
od of calculating pro-rata salary and benefits under this section shall be estab-
lished by mutual agreement between the employee and the College. The request
of the employee shall be In writing and a copy provided to the Union Local Presi-
dent.
The union argues that Naylor was entitled, as art. 14.02 C 2 says, to be "paid on the
basis of pro-rata salary rather than on an hourly rate." But, the union concedes, he
should get the pro-rated salary only from the date of the grievance. To exclude him from
art. 14.02 because he is on LTD due to his illness while allowing teachers who are well
to use the provisions would violate the Ontario Human Rights Code prohibition against
...¢~. ', discrimination on the ground of disability.
The College says that, since Naylor was doing part-time work not covered by the
collective agreement, art. 14.02 C 1 is not available to him. There is no discrimination
under the Human Rights Code because he gets the same compensation as any other
part-time teacher, in any event, because someone getting LTD benefits stops having a
full-time position, art. 14.02 C 1 cannot apply to that person.
Shortly after the hearing, the chairman on behalf of the board wrote to counsel
asking how the parties wanted us to proceed in the light of an outcome that seemed
plausible to us at that stage of our deliberations. We have now received written re-
sponses from both parties. We find that, in the circumstances, it will not be necessary
for us to comment on or determine the issues they raise.
As we read arts. 14.02 C 1 and C 2 in their context immediately following arts.
14.01 and 14.02 A and B, we are inclined to think that they are intended to apply only to (' ~
a teacher who has been carrying a full course load immediately before the request is
made under art. 14.02 C 1. On this reading, since a teacher who makes the request
while on LTD due to a disabling illness would not qualify, Naylor would be excluded. But
that reading violates the Ontario Human Rights Code and is therefore not admissible.
See Re OPSEU and Ontario, Pezuk grievance (1994), unreported (Grievance Settle-
ment Bd.). To satisfy the Code's bar against discrimination on the ground of a disability,
Naytor must be given the same coverage by arts. 14.02 C 1 and C2 as any employee
within the bargaining unit who requests a lighter assignment for a reason unconnected
to a disability.
As we understand the agreed facts, Naylor's discussions with the division chair-
man culminating in the appointment letters incorporated his "requests" and the College's
"approvals" for the purpose of art. 14.02 C 1. The requests were not, as far as we
know, in writing nor were copies provided to the union local president as required by the
last sentence of art. 14.02 C 2. However, since we sea these requirements as directory
and not mandatory, the claim is barred only if we find that the College was prejudiced by ~
.I
the failure here. Since there is no evidence of any such prejudice, the claim is not
barred.
After getting the approvals, Nayior always did the teaching for the hours agreed
on. Doing that, he was not simply performing part-time work not covered by the collec-
tive agreement, as the College would have it. He was instead teaching the "less than
full load" that art. 14.02 C 1 then contemplates. Articles 14.02 C 1 and C2 apply al-
though Nayior gets LTD benefits because, as we have said, the disabling illness bot-
toming the benefits invokes the Human Rights Code provisions barring discrimination
because of his disability.
At the end, Naylor was entitled to pay "on the basis of pro-rata salary rather than
on an hourly rate" under the first sentence of art. 14.02 C 2. But he and the College
have never "established...[t]he method of calculating pro-rata salaries and I~n~its...~
mutual agreement' under the third sentence of art. 14.02 C 2. That will have to be done
before there can be payout of salary and amounts for benefits into the future and any
additions covering the past.
We recognize that Nayior signed a series of appointment fetters from the chair-
man accepting that he was "a part-time professor" with "ternporary...employment...not
covered by the collective agreement...". But so denying his rights does not, under the
awards, create any estoppel against him now nor derogate from what the collective
agreement gives him. E.g., Re London & District Ass'n for the, Mentally Retardedand
OPSEU(1984), 16 L.A.C. (3d) 165, 169-71 (Saltman, chairman); Re Wiresmith Ltd. and
Stee/workers (1988), 34 L.A.C. (3d) 104, 112-14 (Brunner, arbitrator). He could not con-
tract himself himself out of his rights under the collective agreement. E.g., Re Maritime
Telegraph & Telephone Co. and IBEW(1983), 12 L.A.C. (3d) 90,.95 (Outhouse, arbit-
rator): Laskin, Collective Bargaining and Individual Rights (1963), 6 CAN. B. J. 278, 280-
81. Despite what he purported to accept by signing copies of the chairman's letters, he
held on to all those rights including the rights under arts.14.02 C 1 and C2.
The grievance is allowed. For Naylor'$ leas than full load assignments the Col-
lege shall pay him according to the direction of art. 14.02 C 2 retroactive to June 4,
1997. As the second sentence of the provision says, the method of calculating his pro-
:I i
rata salary and benefits shall be established by mutual agreement between the College
and him.
DATED at Toronto Ontario, this 29th day of June, 1999.
DISSENT OF
n
equivalent half a normal work load under Article 11
to almost
even for a full H are his pension contributions to be
semester?
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not be the last where a collective does not cover
agreement all
which can arise in an employment relationship. The Board's
matters