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HomeMy WebLinkAboutUnion 98-03-27IN THE MATTER OF AN ARBITRATION BETWEEN: GEORGE BROWN COLLEGE (Hereinafter referred to as the College) AND ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION (Hereinafter referred to as the Union) AND IN THE MATTER OF A UNION GRIEVANCE (OPSEU #98C058) BOARD OF ARBITRATION: Gail Brent Fred Cowell, College Nominee P. Munt-Madill, Union Nominee APPEARANCES: FOR THE COLLEGE: F. G. Hamilton, Counsel Maureen Callahan, Academic Vice-President Sally Roy, H. R. Vice-President FOR THE UNION: Robin Gordon, Grievance Officer Tom Tomassi, Chief Steward Local 556 Hearing held in Toronto, Ontario on March 27, 1998 DECISION The matter before us arises out of a grievance (Ex. 1) dated January 8, 1998 alleging that the College has violated various articles of the agreement and Appendix VIII in failing “to recall” and in failing “to award permanent status upon completion of 12 months of sessional assignment”. The parties agreed that the matter was arbitrable and that there were no objections concerning the jurisdiction of this board to hear and determine the matter. The parties elected to call no witnesses. The facts were not in dispute and were outlined for us by counsel. Set out below are the facts as we understand them. This situation arises in the context of lay-offs at the College. Article 27.09A(ii) requires the College to offer laid off employees sessional appointments. Those employees who take up these sessional appointments are then deemed to be new hires; however, their previous salary levels are maintained. A laid off employee who accepts such a sessional appointment is still deemed to be on lay-off and to retain his/her full rights of recall under Article 27.09B. Most of the lay-offs at the College were effective September 1996. Since then those employees who did not accept severance packages have been used on a sessional basis. The grievance deals with their status. The College’s position has been consistent throughout and is set out in a memorandum sent to the Union on June 9, 1997 (Ex. 2). The body of that document follows: At the College/Union Committee last week we discussed the apparent contradiction in the language of Article 27.09A(ii) and Appendix VIII with respect to laid off faculty who assume sessional teaching assignments. Attached is a list of all faculty who have maintained recall rights. Previous sessional assignments are shown where applicable. You will note an asterisk beside the names of the individuals who we are considering for additional sessional work in the next academic year. As Maureen stated at the meeting, there may be other faculty on the recall list who have the skills needed to fulfill a sessional appointment; these are the ones we are aware of at this point. The reasons for the assignments vary. They include the following: x replacing people who are on leaves - professional development leave, sick leave prepaid leaves, etc. x non-recurring projects such as LIAD [Learning Innovations and Academic Develop- ment] x additional unanticipated teaching which does not receive on-going funding x teaching which occurs in only one semester of the academic year reflecting imbalances in enrolment from semester to semester In the absence of clear language in the Collective Agreement, we are asking for your concurrence with our interpretation of Article 27.09A(ii) which suggests that an individual who new has been laid off will be deemed to be a hire each time they are hired on a sessional assignment. This would also mean that the individual’s employment would terminate at the end of the sessional assignment. Could you please clarify your position as soon as possible. NOTE: Portion in square brackets added. The Union did not agree with the College’s position, hence the grievance before us. By way of example, the College filed with us three letters of the type sent to laid off employees who were assuming sessional appointments (Exs. 3A, B, & C). These letters were submitted to indicate the sorts of non-recurring situations which have given rise to sessional appointments and include replacing an employee on a reduced workload, additional apprenticeship purchases by the government, and replacing an employee on P.D. leave. The crux of the dispute concerns what occurs when a laid-off employee has accumulated 12 months or more of sessional teaching in a 24 month period, given that Appendix VIII provides for a change in status for sessional employees who reach this plateau. The parties agreed that this situation has never been litigated by them before and that we are dealing with a new issue, even though some of the collective agreement language has been in existence for a while. They also agreed that it is possible that such a case can arise in the future or has already arisen. The Union’s position, briefly stated, is that the words “new hire” in Article 27.09A(ii) explicitly give laid off employees access to Appendix VIII rather than denying such access to them. It said that rather than start a laid off employee in a sessional appointment with 0 months each time he/she takes such an appointment, the purpose of the provision must be read as giving the same rights to a laid off  employee in a sessional appointment as those given to someone who comes to the College for the first time to assume such an appointment. It asserted that the phrase “new hire” was in Article 27.09A(ii) to clarify matters, and that within 24 months of the lay-off it should be possible for a laid off employee to both retain recall rights and to be a probationary employee. It submitted that the College’s position created two types of Appendix VIII employees, those who are new to the College and have the right to accumulate months toward permanent status, and those who are full-time employees on lay-off with recall rights. The Union contended that the College was denying laid off employees on sessional appointments access to the only right that sessional employees have under the collective agreement, thereby condemning them to a possible infinite number of sessional contracts without access to permanent status. It said that the College’s interpretation would also be contrary to the purpose of Article 2.03B, in that it leaves the door open for the College to avoid rolling over sessional positions. The Union contended that the more reasonable interpretation to be given to the collective agreement was to allow laid off employees on sessional employment to accumulate months of service towards permanent status just like any other sessional employee. The College’s position, in summary, is that the case is not about positions but about the treatment of individuals, and that the circumstances show that there are no new ongoing positions created which could give rise to full-time employment. Using the language in the previous collective agreement as a comparison, the College submitted that the reason Article 27.09A(ii) was put in place was to eliminate the possible mischievous result where a full-time employee on lay-off lost seniority or was terminated if he/she refused to take a sessional appointment. It said that the collective agreement gives laid off employees preference to sessional appointments without restriction on the number of sessional appointments such a person could be offered, and that there was no right of any  sort to accumulate months because the employment specifically terminated at the end of each appointment. The College said that Articles 27.03E and 27.09B were operative to protect all the rights of the laid off employee who accepts sessional work. It submitted that one person cannot have seniority rights under Appendix VIII and still have recall rights. The College argued that the whole purpose of the provision was to give laid off employees preference to sessional work without jeopardizing their seniority and recall rights. It also pointed out that if a person accumulated sufficient months under Appendix VIII to become a probationary employee, that employee could be released on probation and would have no right to a job unless the position continued. It also argued that if a permanent position did continue, such a position must be posted and filled in accordance with the collective agreement; therefore, it could not be said that someone falling under Appendix VIII would have greater rights than someone falling under Article 27.09A(ii). The College further argued that it was inconsistent with the collective agreement to have one person with two seniority dates. The parties referred us to several provisions in the collective agreement, which are set out below; in addition it should be noted that “teachers . . . employed on a . . . sessional basis” are excluded from the bargaining unit (Article 1.01(v)): 2.03A The College will give preference to the designation of full-time positions as regular continuing teaching positions rather than sessional teaching positions including, in particular, positions arising as a result of new post-secondary programs subject to such operational requirements as the quality of the programs, enrolment patterns and expectations, attainment of program objectives, the need for special qualifications and the market acceptability of the programs to employers, students, and the community. The College will not abuse sessional appointments by failing to fill ongoing positions as soon as possible subject to such operational requirements as the quality of the programs, attainment of program objectives, the need for special qualifications, and enrolment patterns and expectations. 2.03B The College will not abuse the usage of sessional appointments by combining sessional with partial-load service and thereby maintaining an employment relationship with the College in order to circumvent the completion of the minimum 12 months sessional employment in a 24 month period.  2.03C If the College continues a full-time position beyond one full academic year of staffing the position with sessional appointments, the College shall designate the position as a regular full-time bargaining unit position and shall fill the position with a member of the bargaining unit as soon as a person capable of performing the work is available for hiring on this basis. 27.03E Seniority shall be lost and employment deemed terminated if: . . . (ii) a person is laid off for more than 24 months; . . . (iv) a person on lay-off fails to return to the College’s employ in accordance with the notice of recall. A person on lay-off shall not lose seniority and shall not be deemed to be terminated where the person is unable to return to the College’s employ, on one occasion only during the lay-off, where a notice of recall is of one month’s duration or less. It is understood that in such circumstances, the College and the employee may mutually agree to adjust the period of the notice of recall where educational and operational objectives so require; . . . 27.09A To assist persons who are laid off, the College agrees to the following: . . . (ii) Before the College hires a sessional employee, a person who has been laid off under 27.06 within the last twenty-four months and has not elected severance under 27.10A shall be offered the sessional appointment provided that the former employee has the competence, skill, and experience to fulfil the requirements of the sessional position concerned. The applicable salary for the duration of the sessional appointment shall be at the current salary rate, at the step level in effect at the time of lay-off. For the purpose of Appendix VIII, the former employee will be deemed to be a new hire. This sessional employee will terminate employment at the end of the sessional appointment. For the purposes of 27.03E and 27.09B the former employee will be deemed to be still on lay-off during the sessional appointment. 27.09B Before hiring full-time employees, an individual who has been laid off under 27.06 will be recalled to that individual’s former or another full-time position, provided that the individual has the competence, skill, and experience to fulfill the requirements of the position concerned. Such recall entitlement shall apply during the period of two years from the date of lay-off.  APPENDIX VIII SESSIONAL EMPLOYEES 1 A sessional employee is defined as a full-time employee appointed on a sessional basis for up to 12 full months of continuous or non-continuous accumulated employment in a 24 month calendar month period. Such sessional employee may be released upon two weeks’ written notice and shall resign by giving two weeks’ written notice. . . . 3 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 following 24 calendar month period. 4 A person assigned to replace a full-time regular employee for up to 14 working days for unplanned absences in any month shall not have such period(s) considered as sessional employment for the purpose of the computation of the 12 months sessional employment. During such periods such a person shall be paid as if partial-load and within the range of partial-load hourly rates as set out in Article 14. . . . Canadian Labour Arbitration The parties also referred us to the following authorities: , Brown Re Tupperware Canada and United Food & Commercial Workers, Local 832 & Beatty §4:2100; Re Sealy (Western) Ltd. and Upholsterers’ International (1991), 19 L.A.C.(4th) 151 (Steel, Man.); Union, Local 34 Fanshawe College and Ontario (1985), 20 L.A.C.(3d) 45 (Wakeling, Alta); and Service Employees’ Union (Grievances 92G093 & 92G094) , (1993) unreported (H. D. Brown). In reaching our decision we have considered only the facts as outlined to us, the collective agreement, and the authorities cited. As the parties indicated, this is a case of first instance; therefore, the authorities cited to us provide only general guidance. We accept the general principles stated, particularly as they relate to the interpretation of collective agreements. We are mindful of the need to interpret the provisions placed before us in light of the collective agreement as a whole and to  interpret them in a way which does not lead to an absurd or inconsistent result. It is a most unusual thing to contemplate that one employee could possibly be both a seniority employee on lay-off and a probationary employee at the same time. While it can be said that the collective agreement does not specifically preclude such a situation, it would seem reasonable to expect some clear language to allow for such a dual-status employee. There is no dispute that sessional employees are excluded from the bargaining unit. Further, it is not disputed that full-time employees on lay-off have some collective agreement rights. Generally speaking, among other things, they retain their seniority for two years after being laid off, they have the right to be recalled to full-time employment, and they have the right to be hired for sessional work in preference to members of any other group. The crux of the disagreement between the parties concerns the second paragraph of Article 27.09A(ii). That is, if a laid-off employee accepts one or more sessional appointments of any type or duration does that person accumulate months toward gaining probationary employee status as contemplated in Appendix VIII, 3? Article 27.09A(ii) does not say that Appendix VIII does not apply to a laid off employee who accepts a sessional appointment. It does say, though, that such an employee will be “deemed to be a new hire” for the purposes of Appendix VIII and, for seniority and recall purposes, will be considered still to be on lay-off while holding the sessional appointment. Each time a sessional appointment is made to any particular laid off employee, it is made pursuant to Article 27.09A(ii). Therefore, it is reasonable to conclude that each time any particular laid off employee is appointed pursuant to that section he/she is being appointed as a “new hire” under Appendix VIII. It is reasonable to construe “new hire” as meaning someone who has never been hired before. Therefore, it would follow that the parties agreed that each laid off employee hired as a sessional employee  pursuant to Article 27.09A(ii) would be treated as if he/she had never worked for the College as a sessional before for the purposes of Appendix VIII. That would mean that Appendix VIII, 3 would not come into play because the employee would be treated as coming to sessional employment with no months of sessional employment in the previous 24. Such a result certainly creates two classes of sessional employees. Those who have no seniority rights and whose only hope of acquiring them is under Appendix VIII, and those who have seniority and recall rights and have no need to acquire Appendix VIII rights in order to assert their rights in relation to any permanent position that may become vacant or be created. However, given the fact that Article 27.09A(ii) specifically obliges that laid off employees be hired, and protects the rights of the laid off employee who accepts sessional work, the parties surely contemplated that there would be two such classes of sessional employees. We cannot see that treating the laid off employee doing sessional work as someone who can accumulate months toward gaining the status of a probationary employee is of any benefit to that employee. If there were sufficient work to retain someone in a new permanent full-time position, then surely the College would be obliged to post the job and/or recall laid off seniority employees before simply allowing a probationary employee to fill it. Hence, in all likelihood the probationary employee would have to be released and, being without seniority, would have no retained rights of any sort. Therefore, any advantage such an employee would have is, in our view, illusory. It is therefore our conclusion that the interpretation of the collective agreement which is the more reasonable and more consistent with the collective agreement as a whole is that which treats the laid off employee who is hired for a sessional appointment under Article 27.09A(ii) as a “new hire” without any previous months of sessional work each time that such an appointment is made under Article 27.09A(ii). Naturally, once someone who was a full-time seniority employee on lay-off has lost seniority rights either by resigning or being deemed terminated under Article 27.03E, then the College has no obligation to hire under Article 27.09A(ii). If such a person were hired into a sessional appointment, then Appendix VIII would be the only provision of the agreement which could apply. For all of the reasons set out above, we consider that the College’s interpretation is to be preferred. The grievance is dismissed. DATED AT LONDON, ONTARIO THIS DAY OF , 1998. ____________________________ Gail Brent I concur / dissent____________________________ Fred Cowell, College Nominee I concur / dissent____________________________ P. Munt-Madill, Union Nominee