HomeMy WebLinkAboutTiede 98-02-231
IN THE MATTER OF AN ARBITRATION
BETWEEN:
SENECA COLLEGE
(THE EMPLOYER)
AND:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(THE UNION)
AND IN THE MATTER OF THE GRIEVANCE OF KATHERINE TIEDE;
OPSEU FILE NO. 97B557 (ACADEMIC)
BOARD OF ARBITRATION:
HOWARD D. BROWN, CHAIR
PAULINE SEVILLE, UNION NOMINEE
PETER HETZ, EMPLOYER NOMINEE
APPEARANCES FOR THE EMPLOYER:
E.C. CARLA ZABEK - COUNSEL
MEL FOGEL, DIR. E.R.
APPEARANCES FOR THE UNION:
GEORGE RICHARDS, SR. GRIEVANCE OFFICER
L. OLIVO, L.U., V.P.
K. TIEDE, GRIEVOR
A HEARING IN THIS MATTER WAS HELD AT TORONTO ON
NOVEMBER 26, 1997.
AWARD
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From June 5, 1995 to February 24 when the Grievor’s was given notice of
release, she was engaged to teach by sessional contracts. By letter dated
February 6, 1997, the Grievor was notified that under Appendix VIII(I) of the collective
agreement for academic employees, she was entitled to two weeks’ notice of release and
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that her sessional contract expired on February 24, 1997. On March 3, a grievance was
filed claiming that the Grievor had been improperly classified as a sessional and wrongly
terminated. The Grievor requested reclassification as a full-time regular employee
covered by the collective agreement.
The Grievor was employed in 1993 and worked for a period as a part-time,
partial- load teacher to April 28, 1995. Her sessional contracts commenced in June 1995.
Based on the total credits for her work as a partial-load teacher and sessional contracts,
the Union submits that the Grievor had completed the equivalent of twelve months of
full-time service prior to the notice of termination. By Article 26.04 B, a partial-load
teacher is entitled to credit for service of one-half month’s credit for each calendar month
in which she teaches 30 hours or more. The Union claims that on the basis of her service,
the Grievor should be converted to regular full-time status and be provided three months’
notice or alternatively conversion of her service to a full-time position.
The Employer’s position is that the Grievor is entitled to two weeks’ notice only.
The calculation of the Grievor’s Sessional employment does not equal twelve months.
The issue is whether her partial-load service can be used to add to her Sessional
appointments in the calculation of whether she was continued in employment more than a
twelve-month period. The Employer’s position is that the collective agreement does not
allow that additional service in that Partial-Load contracts are not included in a Sessional-
based employment. The credit for Partial-Load service is for the limited purpose of
movement on the grid. The Grievor’s employment involved only Sessional contracts up
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to and not in excess of twelve months and was thereby properly terminated with two
weeks’ notice.
The submission of the Union is that Partial-Load teachers who regularly work
over six but less than 12 hours in a week are covered by the recognition clause. By
Articles 2.02 and 2.03 A, the College agrees to give preference to the designation of full-
time positions as regular rather than partial-load and sessional positions. Article 2.03 B
provides:
“ 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.”
That effect was ignored by preventing the Grievor from claiming the type of payment and
work which would enable her to complete 12 months in a 24-month period contrary to
the underlying intent of the collective agreement. In Article 26.04 B, credits are
recognized for a partial load teacher with conversion to full-time service at one-half
month’s credit for each month of service which should count toward completion of the
probationary period set out in Articles 27.02 A and B which provides:
The probationary period 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 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
full month shall be considered to be completed.”
“Full Days Worked” refers to calendar days Monday to Friday and excluding holidays.
By Article 27.02 C as the Grievor has completed the required time, she is entitled to 90
calendar days written notice. In the Union’s calculation, the Grievor would have 1 ½
months full-time credit for work in Partial-Load contracts and 11 months of Sessional
contracts prior to January 1997 which total over 12 months since January 1995.
Reference was made to Re Seneca College and OPSEU (Samuels, February 10, 1998);
Sheraton College and OPSEU (Weatherill, May 17, 1982) to support its position that both
types of service can be used to calculate the time required for completion of the
probationary period set out in Section 3, Appendix VIII.
It is the submission for the Employer that the time spent by the Grievor in Partial-
Load contracts is not relevant with reference to the clear language of Appendix VIII. The
Grievor was not a full-time employee when she worked on Partial-Load contracts
involving teaching six to twelve hours in a week. While a Sessional is defined as a full-
time employee within the terms of Section 1, that language clearly excludes Partial-Load
service. The Employer relies on the more recent awards on the issue which set out the
opposite conclusion of the Union: Re Northern College and OPSEU (Swan, June 11,
1991); Re St. Lawrence College and OPSEU (Mitchnick, April 5, 1995).
It is the Employer’s position that service in Partial-Load contracts cannot be used
for seniority purposes which is upheld in the majority of the awards on this issue. As the
Grievor’s sessional service did not exceed 12 months in a 24-month period, the Grievor
was given proper notice of termination by the Employer on February 6, 1997.
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By Appendix VIII;
“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 period. Such sessional employee may be
released upon two weeks written notice and shall resign by
given two weeks written notice.
Reference was also made to the following articles:
26.04 A
For the purpose of determining the service
of a partial-load teacher under 27.06 (iv), (v), (vi), and
27.08 B and for the purpose of determining progression
through the grid ten months of on-the-job experience will
entitle the employee to one year of service and to progress
one step on the grid, except as noted in 26.04 B.
26.04 B
On-the-job experience will be calculated as
follows: A partial-load teacher will be entitled to credit for
service from September 1, 1971 (but not earlier) on the
basis of ½ month’s credit for each full month of service up
to January 1, 1977 and thereafter on the basis of ½ month’s
credit for each calendar month in which the employee
teaches 30 hours or more.”
Article 26.04(a) limits the applicati on of Partial-Load service to progression
through the grid with service credited as calculated under the terms of Article 26.04 B.
The majority of the previous awards on the issue of the use of Partial-Load service
support the Employer’s position that the Sheridan award has not been followed. After
such a review was made in Northern College, the Board stated at page 18:
“In our view, while we might have wished for clearer
language to interpret, the best conclusion to be drawn is
that the parties did not intend partial-load or part-time
service to be counted either toward the probationary period
once an employee has been given a full-time continuing
appointment or toward the seniority of that employee once
the probationary period has been completed in accordance
with clause 8.01---”
More recently in the St. Lawrence College award, it is made clear that the
involvement of Partial-Load employees while included in the bargaining unit is limited
in that they do not acquire seniority and service except for bumping purposes and this
credit does not count in the calculation of a probationary period. At page 13, the Board
stated:
“Partial-Load employees actually are included in the
bargaining unit but their involvement in the provisions of
the collective agreement is very limited. They do not
acquire true seniority and essentially are given
consideration under Article 27 (the seniority/lay off
section) only as potential targets in the bumping --- what
partial credit they do get is expressly limited to service -
26.04 B --- clearly from the above, the full year 1993-4 that
the Grievor spent as a partial load contract teacher would
not count toward the second year of the probationary period
---”
Article 14.02(b) purports only to deal with salaries for those teaching less than 13
hours per week. As well, there is a difference in the present contract language than that
referred to in the Sheridan award as 26.04 A refers to the purpose of “determining the
service of a partial-load teacher - and for the purpose of determining progression through
the grid” with reference to Article 27 dealing with layoff and placement or displacement.
For that purpose, service is calculated according to Article 26.04 B which we find is
restrictive in application unlike the finding in the Sheridan award. The later awards
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referred to above, in our view, properly set out and determine this issue which is accepted
by this Board.
Accordingly, we find that the Grievor’s service as a partial-load employee cannot
be counted in the calculation to establish a full-time employee status and cannot be added
to the Grievor’s service under sessional contracts for that purpose. We are not persuaded
on the evidence that the Employer has violated the meaning and intent of Article 2.03 B
wherein it is agreed that the College “will not abuse the usage of sessional appointments”
to circumvent the completion of the 12 in 24-months requirement. There is no evidence
of bad faith in the Employer’s hiring of the Grievor and assignment of work to her during
the period of her employment as a Partial-Load or Sessional employee. There is no basis
on these facts on which the Board could conclude that there was a violation of
Article 2.03 B by the Employer.
For these reasons, the Board finds that the Union did not establish that the Grievor
had completed on a Sessional basis more than 12 months of continuous service in a 24-
calendar month period but fell within the terms of Section 1 of Appendix VIII of working
up to 12 months of continuous service between June 1995 and December 1997 which
totals 10 months. The Grievor’s Sessional contract service after that date even if taken
into account to the end of February does not constitute the required 24-month period in
which to assess sessional service with regard to the completion of a probationary period
under Section 3. The Grievor’s service prior to June 1995 was as a Partial-Load teacher
which time worked for the reasons stated above, cannot be used as an addition to her
Sessional contract service for the calculation of the probationary period.
The Board cannot conclude therefore, that the Grievor had completed the
equivalent of twelve months full-time service prior to her notice of termination in
February. Accordingly, we must find that the Employer acted in accordance with the
terms of Appendix VIII and had provided the Grievor with appropriate notice of release
from employment in its letter dated February 6, 1997.
For all of these reasons, we find that the Union did not establish that the Employer
had breached the terms of the collective agreement as alleged. It is our award that the
grievance is dismissed.
DATED AT OAKVILLE THIS 23RD DAY OF FEBRUARY, 1998.
HOWARD D. BROWN, CHAIR
PAULINE SEVILLE, UNION NOMINEE
PETER HETZ, EMPLOYER NOMINEE