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Home My WebLink AboutUnion 02-02-06 IN THE MATTER Of AN ARBITRATION BETWEEN: FANSHAWE COLLEGE AND: ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND IN THE MATTER OF GRIEVANCE ~00C112 -ARTICLES: 2, 6.02, 10AND 27. O.B. SHIME, Q.C. CHAIRPERSON HUBERT NOMINEE FOR THE COLLEGE SULLIVAN NOMINEE FOR THE UNION APPEARANCES: MARGARET SZILASSY COUNSEL, and others for the College A.H. RYDER, Q.C. COUNSEL, and others for the Union A hearing was held in this matter at Lonaon, Ontario on June 12, 200'~ ÈÍ È×ÛÙÔÈÔ×ÙÍÇÊÙÛÉ ìÊÍÖ×ÉÉÍÊ ÔÛØÈÛÇÕÔÈûÉ Û ±¾ ?± È×ÛÙÔ×ÊÉ Musson that the position was not advertised, l>ecause there was a sho?t notice Ioe~iod between Professor Beattie leaving and Mr. Zajc was making changes in the area and needed time to review his needs, Ms. Musson testified that she was present at a meeting on December 8t", 1999, and the Union otaimed that there was a vacancy as a result of Professor Beattie leaving and requested that the College post tile position as soon as possible. Shelclaimed that the posUngs are usuatly at the college of origin and also at other colleges and that five days is required for posting. She maintained there was instant capability to post, since postings are online, Ms. Musson claimed, at that time, i~rt-time, partial load and sessional instructors would be in a position to accept employment by January, because they would be finishing up their contracts, ,She also maintained the Christmas period Is an ideal time, since some of the potential candidates for the job woulcl be less likely to leave, and would be in a position to accept a full-time position at the end of their temporary oontracts since they had been hired on a semester basis, Ms. Musson advised the College that if they required an extension they would have to obtain a tocal agreement from ~e Union, but was told the College didn't need'to request an extension from the Union. Based on the evidence, the Union submitted that posting procedures am goveFned by Article 27,11 o~' the Collective Agreement and could have been initiated electronically in early December 1999, so as to have reached bargaining uni~ employees and employees at other colleges. In particular, it would have reached the pool of pact-time, partial load and sessional employees, whose contracts were terminating atthe end of the Fall semester in December of 1999, and who could commence a full-time position in January 2000, The Union also submitted that in early December 1999, the College was in a 13osition to adve~ise the position gene~'ally, se as to ¾ ÌÎ ÉÇÈ¾×ÙÈ ØÓÌÐÍÏÛÌÊÍÕÊÛÏÉ ÚÃ ÓÖ ¾ÍÌ×ÊÛÈÓÍÎÛÓ Feb-O?-2002 04:44pm ;r;m-R~ Z]63dO9250 T-~82 P.OOe/020 -7- reason for ncr filling the vacancy, in Deceml~e? of 1999, was because time was short and any decision tc review the Division's teaching needs were made well after the staffing dec, ision was made. The Union further claimed that as of May 5", 2000, the College approved a budget for two additional part-time and partial toad teachers to continue for the year ending Match 31'~, 2001. As of May 5th, 2000, the impa~ of Mr, Smith's return and the alleged operational changes wou~d surely have been known to the Division and if these allegations were true, there would be no need to budget for the aciditional part-time and partial Icad appointments. The Union subm~ed that Article 2.02 requires the ColJege to give preferenc~ to the designation of full-time over partial Icad when meeting staffing requirements, and the College, in this case, used a partial Icad appointment to ~taff the Beattie vaoanw. We now turn to consider the evidence in tight of the argument. The relevant provisions of the Collective Agreement are as fellows: 2.02 The College will give preference to the des[gnation of fuel.time positions as regular rather than partial.load teaching positions subject to such operational requirements as the quality of the programs, attainment of the program ob~tives, the need for special qualifications and Ihs market acceptability of the programs to employers, students, and the community. 2.05 A The College will give preference to Ihs designation of full.time ~sitions as regular continuing teaching positions rather than sessional teaching positions including, in particular, positions arising as a result of new post-se0ondary programs subject to such operational requirements as the qualily of the programs, enrolment patterns a~d expectations, a~inment of program objectives, the need for special :lualiflc. a~ons and t~e market a~oeptab~ity of the programs t~ employeR, stud~ts, aha the community, The College will not abuse sessional appoin~ents by failing to fill ongoing positio~ as soon as possible subject to such operational requirements as the quality of the programs, attainment of pn;~ram objectives, the need for special qualifications, and enrolment patterns ~ expectations. 6.01 It is the exclusive function of the Colleges to: (iii) manege the College and, without restricting the generality of the ñ F~b-O?-2OOZ B4:46pm Fr~m-R~D 41E$40~250 T-~e2 P.011/020 F-~$6 -9- full-time positions as regular rather than partial load teaching positions. Such teaching positions are, of course, subjeot to operational requirements. The general Intent of Article 2.02 is to prefer fuji-time positions to partial load teaching positions and, in that respect, Article 2.02 reflects an obligation to designate full-time positions as regular rather than partial load teaching positions. In an email dated January 3, 2000, sent by Richard Hu[ley, the Human Resources Consultant, to Local 110 which states as follows: "Paddy, as an update to your pmvio~Js query regarding the Al Beattie replacement Ted has informed me that due to the late movement, he wi{I be using alternative staffing for this semester." And further, in a note ora conversation dated January 6, 2000, with Ted Smith, who was the acting chair, Ms. Musson indicated the following: "Ts "Alian's work still exists? 'Temporary hired." Also, in evidence is an email from Carl Zejo dated January 17, 2000 to Local 110, in which he ~tates that: ~the teaching that Al Beattie was assigned to do ..... is being covered by part-time and partial load teachers. It is my intention to review the teachb~g needs for the Mar~ufactudrrg ~iences Division prior to filling the fill-time complement position." Those smalls confirm that Mr. Beattie'$ teaching load existed and was available in Jar~uary 2000, and also refer to the teaching position as a full-time complement position. Also, Mr. Zajc confirmed that it was his intention to review the teaching needs, which we lr~fer as being at a future time. The email does not state that he had reviewed the teaching needs and had come to a decision that a full-time position was not required. That the matter had not been fully reviewed or finalEed as of January 10, 2000, when ~lasses began is also confirm~ by a memorandum from Joy Warkentin, Vice~President Academic Servioes, to Paddy Musson, dated February 7, 2000, in which she repeats that there was a short notice period and "therefore Carl replaced him [Al Beattie] with individuals who had taught the subject matter for him" and that "b) Carl is making changes in this area and needs time t~ review the needs.' The clear inference to be drawn from that memorandum is that Mr. Zajc was being expedient and replaced Professor Beattie w~h individuals whom he knew and who had taught the courses, and also Mr, Zajc had not come to any fl~rn conclusion about the requirements for the position at that time. AlSo, in his eviclence, Mr. Zajc stated that the hours the two persons hired had taught were equivalent to what Al Beattie had taught and it was equivalent t0 a full-time job. He confirmed that there might not be an ongoing position and he wanted to review the teaching requirements. Again, Mr. Zajc's testimony clearly [mpiied that as of January 10, 2000, there was a full-time teaching position availaDle, and a firm ~ecision had not been made about an ongoing position, but it was an issue that was to be reviewed at a future time, In cross-examination, Mr. Zajc further conceded the Base Budget, which he submitted in March of 2000, did not contemplate any changes to the program, The written budget submitted contains the following comment"(1 ) Replace vacant faculty position with PT and PL for current budget year only.*' That comment, in and of itself, suggests that there was a vacant pOSition extant as late as March of 2000 and no firm plan existed as to how the fill that position. û û Û ÏÇÙÔ èÔ× ùÍÐÐ×Õ×ÅÛÉ ÈÍ Ê×ÛÙÈ ÒÌÈ÷ÈÐÛÈÚÎÛÓ Ò ù¾ ÈÔ× ÈÍ ÈÔ× óÎ ÛÉ ÈÔ× ó óÈ ÈÔ× ÈÔ× ÈÔ× óÎ Û ÈÍ ÈÔ× ÖÍÊ Û ÈÔ× ÈÔ× Û ÈÔ× Û ÖÍÊ Û ÈÔ× Û ÓÖ ÖÚÊ ÈÔ× ÙÊÍÉÉÛÛÏÓÎÛÈÓÍÎ ÖÍÊÛ ÈÔ× ÖÍÊ ÖÍÊ ÈÔ× ÈÔ× ïÓ ÈÔ× ÈÔ× ÙÔÓ×Ö ÈÔ× ÖÍÊ Û ÈÍ ÈÔ× ÈÍ Û ÍÊ ÈÍ ïÊ ÈÔ× ÈÔ× ÈÔ× ÖÍÊ Û ÈÔ× ÈÍ ÈÍ ÖÍÊ ÙÔÓ×Ö ÈÔ× Û ÈÔ× ÈÍ ÈÔ× ÅÍÊÑ ÈÍ Û Û Û ÈÔ× ÈÔ× Û ÈÍ ÈÍÈÔ× ÈÍ ÖÍÊÈÔ× ÛÉ ÈÍ óÎ ÈÔ× ÖÍÊ ÈÔ× ÖÍÊ ó Û ÈÔ× ÈÔ× ÈÔ× ó ó ÈÔ× ÈÔ×ÅÍÊÑ Û Û ÈÍ ÈÍ ÔÛÉ ÈÍ ÈÍÈÔ× ÈÍ ÈÍ Û ÈÔ× Û ÓÈÉ×ÐÖ ó ÈÔ× Ê×Ö¾Ê×ÎÙ×ÈÍ ÈÍ ÙÍÇÊÙ×È ÍÊ Û ÈÍ ÈÔ× ÈÔ× Ô× ÓÈ Û Û ÈÔ× ÔÛÉÈÔ× ÈÔ× ÈÍ Û Û ÈÍ ÈÍ ÈÔ× ÛÉ Û ÖÍÊ ÈÔ×Ê× ÈÍÒÇÉÈÓ É Û ÖÍÊ ÈÔ× ÈÔ× ÓÈ ÈÍ ÈÍ Î×Å ÈÍ Û ÈÔ×Î ÈÍ Û Å× Û Û óÎ ÈÔ× ÈÔ× ÈÔ× ÈÔ× Û ÈÍ Û ÓÈ ûÈ ÈÔ× ÓÈ Û ÈÔ× ÛÉ ÓÈ ÈÍ ÓÎ Û ÛÎ ÈÔ× ÍÊ ó ÈÔ× ÈÔ× ÈÍ Û ÈÔ× ÙÔÓ×Ö ÈÍ ÖÍÊÈÔ× ÈÔ× ÅÛÉ ÖÍÊÈÔ× óÎ ÈÍ ÍÈÔ×Ê ÍÊ ÈÍ ÈÔ× ÈÔ× Û ÓÈ Ú× ÈÍ ÈÍ ÈÔ× ÛÌÛÊÈ ÈÍ Û ÖÍÊ ÎÍÊ ÓÉÓÈÛ óÎ ó Û û