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HomeMy WebLinkAboutVan Slack 01-04-05IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO COUNCIL OF REGENTS FOR COLLEGES OF APPLIED ARTS AND TECHNOLOGY in the FORM of SAULT COLLEGE (hereinafter called the "College") - and - ONTARIO PUBLIC SERVICE EMPLOYEES' UNION (for ACADEMIC EMPLOYEES) (hereinal:ter calleo the "Union") GRIEVANCE of Jason Van Slack OPSEU FILE NUMBER 00D322 BOARD OF ARBITRATION: Richard It. McLaren, C.Arb., Chair Sherril Murray, Union Nominee Merrick Bryson, College Nominee COUNSEL FOR THE COLLEGE: Victoria R. Chiappetta COUNSEL FOR THE UNION: Andrew Lewis A HEARING IN RELATION TO THIS MATTER WAS HELD AT SAULT ST. MARIE, ONTARIO, ON DECEMBER 5, 2000. AWARD Counsel for the parties agreed that there was no need to call any viva voce evidence. The facts are in effect agreed to by the process of filing documents at the arbitration hearing. The Grievor was hired as a full time professor in Parks & Outdoor Recreation in 1997. The issue in this proceeding is the appropriate initial starting position on the Salary grid. The initial placement on thc Faculty Salary Calculation Form was at step 2. Following complaints there was an adjustment to place him at a starting salary at Step 4 at $ 38,827. The relevant provision of the Collective Agreement reads as follows: I. APPOINTMENT FACTORS A) Experience: Relevant Teaching/Relevant Occupational Relevant occupational experience generally means full years of experience in a field of work related to the material to be taught or the job to be done, or to some allied aspect of it. In determining the number of years to be counted, the College hiring must avoid the extremes of counting either "years of time passed" or "years of entirely non-repetitive experience", and must make a fair assessment of an applicant's experience. For example, an applicant who had spent some years as a sales clerk before qualifying as an engineer should not expect that sales experience to count as relevant experience if the person is being hired to teach engineering. Part-time experience should be totalled only if it forms part of a regular program of development such as a co-operative educational progtmu. Double counting must be avoided. For example, if an applicant worked as a graduate assistant while pm-suing an advanced degree, the person shall not be given full credit for both experience and educational time. Page 2 of 8 gimilarly, relevant teaching experience means full years of teaching experience at a level comparable with the level required of the applicant. Again, double counting must be avoided for teaching experience as, for example, a graduate assistant while pursuing advanced qualifications. The values to be given for experience are: -First 5 years: 1 point per year -Next 9 years: 2/3 point per year -Next 12 years: lA point per year B) Relevant Formal Qualifications Formal qualifications are those which constitute the norm in institutions of post-secondary education in the Province of Ontario. Only full years of post-secondary education at successively higher levels, and leading to a diploma, professional accreditation or degree, are recognized. For example, a graduate of a three-year technology program in a College would be given 1 '/5 points for each of the three years, regardless of the length of time actually spent by the individual in obtaining the diploma. No credit is to be given for a year of study in which there was significant duplication of other studies. Therefore only the highest qualification will be used in computation unless the subject areas are from different disciplines and all relevant to the appointment. -CAAT Diploma or PosVSeeondary Certificate- per year (level completed: 1 tA points (Maximum of 4 years) -University Degree - per year (level completed: 1 1/2 points (Maximum 6 years) -Formal integrated work/study program such as P.Eng., C.A., C.G.A., C.M.A. (Formerly R.I.A), Certified Journeyman* - per year (level) completed: 1 th points (Maximum $ years) (Note that years included herein are not also to be included under Factor A) Page 3 of 8 * "Journeyman" to be replaced with appropriate term when the Trades Qualification and A??rentice~hip Act is amended. C) Computing Initial Placemem i) The minimum qualifications requirement is a count of 8 points based upon the appointment factors. Since this is the minimum requirement, a total of 8 points corresponds to the minimum rate. (This is not intended to preclude a College from hiring an individual whose qualifications and experience total less than 8 points. In such cases, however, the individual would be hired at a minimum of the scale.) ii) Computation of the initial salary is, therefore, A + B - 8. The product is romded to the next higher number, e.g. A = 8 points B: 4 IA pmnts A + B = 12 ~h points 12 IA-8 = 4 IA =5 The starting position is the corresponding step (Step 5) on the scale. iii) No individual will have a starting salary of less than the minimum on the salary scale. Nor will an individual's maximum starting salary exceed the specified maximum starting salary on the scale. Page 4 of 8 The relevant placement factors as they were agreed to by the College by the time of the hearing and argued by the Union at the hearing are represented in the following table. Relevant Placement Factors FACTOR C O L L E G E U N I O N A) EXPERIENCE 2.67 5 Teaching/Occupation B) FORMAL QUALIF. 7.5 9 SALARY CALCULATION 2.67 + 7.5 - 8 = 2.17 5 + 9 - 8 = 6 STEP 3 6 SALARY $ 37,697 $ AT ARBITRATION Step 4 $ 38,827 1. APPOINTMENT FACTORS A) Experience: Relevant Occupational The Union argues that all relevant work experience is to be included, which would include in the Grievor's case as a fa:st time entrant into the full time job market, summer jobs while in high school and during the post secondary years of education and afterwards until employment. This is how the difference arises between the College calculation of 2.67 points and the Union calculation of 5 points, The Grievor has one full year of related work experience between August of 1996 and July of 1997 completed just prior to his being hired. That experience is precisely within the language: Relevant occupational experience generally means fult yeara' of experience itt a ficM of work related to the material to be taught... The College granted more than this one year by including work atter gra~luation from University butbefore obtaining continuous work. Those partial months ofrelatedworkexperience run from May of 1994 after University graduation and the attainment of the formal qualification Page 5 of 8 for the job. The months of varioug employment ended in August of 1996 prior to starting the single year of continuous employment. The College counted these months up and granted an additional 1.67 years of employment for a total of 2.67. They counted the less than "full years" because of the language in Factor A: ...the College hiring must avoid the extremes of counting either "years of time passed" or "years of entirely non-repetitive experience ", and must make a fair assessment of an applicant's experience... The College submits that while it does not need to have counted any broken or less than "full years" it was prepared to do so here because of its obligation to carry out a "fair assessment of an applicant's experience". However, it would only do so with respect to post formal qualification for the job. The College argues the Greivor was in school obtaining formal qualification from 1988 to 1994. Therefore, the dispute involves the relevant occupational experience before 1988 and after 1994 up until thc hiring in 1997. The College argues there is only one full year but concedes a further 1.67 years in broken employment post graduation in 1994. The Classification Plan in the Collective Agreement is primarily based upon years of education and years of experience. The difficulty is that education school years are rarely full calendar years. Under factor B there is some bracketed language which indicates that: (Note that years included herein are not also to I>e mclucted under Factor A). When the language of Factor A refers to full years of experience it can and does mean less than full years where the experience is relevant as the College counted in this case. The Collective Agreement speaks of generally full years of experience and not exclusively to such years. However, Factor A language also indicates that there is to be no double counting. The example contemplates someone who is working while obtaining formal qualifications. Here, the Grievor is in a co-operative programme. The school years are counted in Factor B and the co-operative work is by the language to be included within the formal qualification factor and not the relevant occupational experience. The case of Cambrian College and OPSEU itl the grievance of Pepin in a decision of Chairman Samules dated June 20, 1986 is distinguishable. In that case, the Grievor was simultaneously working as a full time employee in elementary and secondary schools and obtaining credits towards a BA. The Board there allowed the formal qualification to count separately from the relevant work experience. In this case, the Grievor was in secondary education and as part of it there was a co-op work programme. That is all part of the formal qualification process and is not to be counted as relevant experience. It is different than the Cambrian College case supra. Therefore, the Board is not counting the co-operative work undertaken during the post secondary education programme nor the ~ummer work during the diploma l~rogrammes. Those years are counted in the formal education Factor B. Page 6 of 8 B) Relevant Formal Qualifications The Grievor argues that he had two relevant CAAT diplomas which would take 4 years to complete and a fora year university degree. These would add up to 8 years although he actually obtained all these qualifications in 6 years between 1988 and 1994. He was able to obtain these formal qualifications in less than the institutional designated time frame because after the first diploma the prior post secondary education began to shorten the time requiremems for subsequent educational qualifications. Factor B indicates that counting of formal qualifications is to be done: regardless of time actually spent by the individual in obtaining the diploma. That language is no doubt primarily directed at someone who takes longer than the formal years the institution counts as the qualifying period. For example, someone takes four years to obtain what the diploma grauting institution counts as a 3 year programme. The language must also work in the reverse circumstance when an individual works less than the time the diploma granting institution indicates is the standard for the programme. There could be many reasons for the individual student taking less time. The reason here is that some of the prior course work is given credit by another institution. Nevertheless, the individual has two diplomas. They count at 1.5 point l)er year for 4 years. Therefore, the Board would apply Factor B and count the two diplomas as 6 points and the University degree as 6 points. C) Computing Initial Placement Thc Board finds that the College calculation of Factor A at 2.67 is correct. The Board has found that the formal qualifications is to be calculated at 12 points. Therefore, the formula creates the following 2.67 + 12 - 8 = 6.67 points. Therefore the initial step should have been at 7 with a salary commensurate with that Step. For all of the foregoing reasons the grievance is upheld in part. It is ordered that the Grievor's starting salary be recalculated as being at step 7. This recalculation will in turn affect the salary calculation for the years subsequent to the initial year of 97/98. These recalculations are to be made for each of the subsequent years. So as to establish the correct current salary for the Grievor, the Board will remain seized of the issue of the calculations. If there is any dispute and counsel can not agree the matter can be referred back to this Board for a final resolution provided either party nntifies the Board in writing within 30 days of the date of this award that there is a dispute in the calculation which the parties cannot resolve. Rctroactivity In view of the foregoing order of the Board there is also an issue of the relevant date for the payment of a retroactive adjustment. Thc Union submits that it ought to be March 20, 2000 Page 7 of 8 which is the date of the initial complaint in thig matter. The College submits that the retroactive payment ought to be 20 days prior to the date of the grievance which is June 9, 2000. Tills matter had bccn under review at variou, fimeg throughout the employment of the Griever. By March 20, 2000 the issue was squarely before the Human Resources Department. When there was no amicable resolution then the grievance followed. In accordance with the Collective agreement the retroactive date ought to be 20 days prior to the grievance being filed. The College is ordered to make the retroactive pay adjustment in accordance with this award within one pay period after the date of the award. If there is any dispute as to the re,torative pay calculation. Either party may, following written notice within 30 days of the date of this award, ask the Board to reconvene for the purpose fo determining the appropriate retroactive payment to be made in accordance with this award. DATED AT LONDON, ONTARIO THIS 5th DAY of APRIL, 2001. Richard H. McLaren, C.Arb. Dissent) Merrick Bryson, College Sherril Murray, Union Page 8 of 8 IN THE MATTER OF AN ARBITRATION BETVVEEN: ONTARIO COUNCIL OF REGENTS FOR COLLEGES OF APPLIED ARTS AND TECHNOLOGY IN THE FORM OF @AULT COLLEGE -AND- ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR ACADEMIC EMPLOYEES) GREIVANCE OF JASON VAN SLACK DISSENT OF MERRICK S. BRYSON COLLEGE NOMINEE With all due respect to the majority of the board I must take exception to the methodology used to support the granting of full credit for all of Mr. Van Slack's post secondary academic achievements. Notwithstanding the reference on Page 7 of the Award which states that credit for formal qualifications is given "regardless of time actually spent by the individual in obtaining the diploma" one must consider all of the information in the collective agreement. The entire explanatory note found on Page 11 of the collective agreement must be taken into consideration and put into perspective. The following paragraph seems to have not been considered. "No credit is to be given for a year of study in which there was significant duplication of other studies. Therefore only the highest qualification will be used in computation unless the subject areas are from different disciplines and all relevant to the appointment". The College gave Mr. Van glaek full credit for his four year university degree and very generously granted him some credit for his college diplomas. The college was mindful of Mr. Van Slack's qualifications and gave appropriate credit when determining their relevance to his teaching responsibilities. To give Mr. Van glack full eredil far hath diploma's and the university degree is a blatant misinterpretation of the collective agreement and I submit disregards the actual intent of the translation of qualifications to credits concept. Thc collective agreement explicitly states "only the highest qualifications will be used in competition." Without elaborating in detail, evidence submitted at the hearing indicated Mr. Van Slack successfully negotiated credit for course work from one diploma to the next and two full years toward a four year d~gr~ at th~ University of Waterloo. This is proof that there was "significant duplication of other studies".