HomeMy WebLinkAboutHyland 97-09-29BETWEEN
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
("the Union")
- and -
FANSHAWE COLLEGE
("the College")
Re: GRIEVANCE OF THERESA HYLAND
(OPSEU #97D058 - Academic)
BOARD OF
ARBITRATION: Michel G. Picher -Chairperson
Ron Hubert - Employer Nominee
John McManus - Union Nominee
APPEARING FOR
THE EMPLOYER: Robert J. Atkinson - Employer Counsel
Gail Rozell - Manager Human Resources
APPEARING FOR ~
THE UNION: Ed Holmes - Union Counsel
Gary Fordyce -Chief Steward, Local 110
Tom Geldard - 1 st Vice-President Loc. 110
Theresa A. Hyland - Grievor
A hearing in this matter was held in London on May 5, 1997.
AWARD
This is the arbitration of a grievance against layoff. The grievor, Ms.
Theresa Hyland, alleges that the College wrongfully deprived her of access to a
position which was awarded to a junior employee, Ms. Denise Blay. The
position, which involves the duties and responsibilities of Co-ordinator and
Professor, Basic Business Program, at the Woodstock campus of the College,
requires the incumbent to teach computer courses. The Union alleges that the
grievor has sufficient skill and ability to perform the computer-teaching
responsibilities, while the College maintains that she does not, and by reason of
that shortcoming does not have the requisite skill and ability to fill the position.
The facts pertinent to the grievance are not in substantial dispute. The
grievor commenced her employment with the College in November of 1988,
eventually gaining a seniority date of June, 1989. The incumbent, Ms. Blay, has
seniority dating from October of 1989. Both employees received notice on April
1, 1996 of their effective layoff, scheduled for July 30, 1996. They were among
a group of some 55 academic staff so affected. Each was entitled to placement
in any vacant position for which they might be qualified, on the basis of seniority,
pursuant to article 27.06(i) of the collective agreement which reads as follows:
An employee will be re-assigned within the College to a vacant full-
time position in lieu of being laid off if the employee has the
competence, skill and experience to perform the requirements of a
vacant position.
The issue is whether the grievor has sufficient competence, skill and
experience to perform the requirements of the vacant position which was
established at the Woodstock campus of the College. The evidence before the
Board discloses that the satellite campus at Woodstock offers two post-
secondary programs, in addition to a non-post-secondary academic upgrading
program. The first post-secondary program consists of a two-year diploma
course in Environmental Engineering Technician (Waste Management). The
second, commencing in 1995-96, is a one-year Basic Business Program,
essentially a preparation year for a two-year business diploma program, with
courses in subjects such as accounting, finance, marketing and insurance. The
Board is advised that in the spring of 1996 the three programs at the Woodstock
campus involved some 100 to 125 students.
In the spring of 1996 it was decided to establish a full-time position at the
Woodstock campus. The person in the position would act as Co-ordinator for
the Basic Business Program and would teach courses in English and
Communications, as well as computer courses in the three programs offered by
the College. The evidence establishes that following the layoff notices of April 1,
1996 the newly-appointed principal of the Woodstock campus, Ms. Sherri Knott,
conducted telephone interviews of the employees being laid off, on the basis of
their descending order of seniority. If an employee was judged to have the basic
3
qualifications for the job, on the basis of. the telephone conversation, an
interview was scheduled. Based on her telephone conversation with the grievor,
Ms. Knott formed the opinion that, based on her lack of computer knowledge and
experience, she did not have the basic qualifications for the vacant position.
There is no dispute that Ms. Hyland has the necessary competence and
experience to teach the English and Communications courses. The grievance
essentially resolves itself into the question of whether the grievor does in fact
possess the basic qualifications and skills necessary to teach computers in the
programs in question. It is common ground that the vacant position requires the
professor to teach computer applications courses in the both the Engineering
Technician (Waste Management) Program and the Basic Business Program.
For example, the Waste Management Course, CMTR 290, is described as
follows in the student course information document:
This course is designed to develop an understanding of the use of
spreadsheet software for business and record keeping. There will
be a section of the course which incorporates both word
processing and spreadsheets.
The evidence of Ms. Knott establishes that the course involves some 45
teaching hours and requires a thorough knowledge and understanding of, as
well as some working experience with, spreadsheet applications and database
software, including Excel 5.0 and Access. She further indicated in her evidence
that the incumbent in the position must also have a thorough knowledge and
ability to teach other software packages applicable to both the Waste
4
Management and Business courses, including spreadsheet programs such as
Lotus and Excel. She also related that the Business Data Processing course,
which involves some 60 teaching hours, would require the professor to have a
substantial understanding of basic computer operating platforms, such as
Windows and DOS.
Ms. Knott testified that during the course of her telephone conversation
with the grievor, she learned that Ms. Hyland had no previous knowledge or
working experience in database and spreadsheet software packages such as
Lotus, Excel and Access. According to Ms. Knott, the grievor indicated that in
fact she had never heard of Access and Excel before. She also learned that the
grievor had no experience in teaching any computer courses, apart from having
taught some word processing as part of English and Communications courses.
Ms. Hyland holds an Honours B.A. degree in Social Sciences. She also
obtained a certificate in the teaching of English as a Foreign Language from the
Royal Society of Arts Examinations Board and a master's degree in Education
from the Ontario Institute of Education. Her earliest teaching experience was in
Japan and Singapore, where she taught English as a Second Language, as well
as middle school and "O" Level and "A" Level courses following the British
system. Her teaching at Fanshawe College has largely been in the area of
language and communication courses, as well as a development course in Prior
Learning Assessment.
6
Under cross-examination, Ms. Hyland conceded that her experience with
computer programs other than WordPerfect is extremely limited. She admitted
that she has never worked with Lotus and that her only experience with
spreadsheet applications is a workshop taken in Singapore some ten years ago.
She further indicated that following the filling of the job vacancy, and after the
grievance was filed, she did take one-day workshops in Access, Excel and DOS
3.1, in July and August of 1996. It appears that she took those workshops
following a second telephone conversation with Ms. Knott, which she estimated
to have been in mid-May. The grievor concedes that Ms. Knott gave her no
guarantee that taking those courses would change the merits of her candidacy
for the vacancy at the Woodstock campus.
Ms. Knott's evidence establishes that the courses for which the Co-
ordinator would be responsible do involve extensive teaching of computer
applications. She notes that CMTR 190 includes the teaching of WordPerfect
and Windows; CMTR 290 involves teaching spreadsheet applications, including
Excel, and CMTR 390 is devoted to the teaching of Access and PowerPoint. In
addition, she related that the business course CMPT 151 is entirely comprised of
teaching data processing through Lotus. The evidence of Ms. Knott is that the
College required a person fully capable of undertaking the teaching of these
courses from the time of assignment, and that the grievor was simply not
qualified to do the work.
5
Ms. Hyland testified that as part of her Social Sciences degree she
studied statistics. She feels that her background in statistics gives her a
fundamental grasp'of the systems which underlie computer platforms and
computer software applications such as Lotus, Access and Excel, although she
concedes that she had never heard of the latter two programs prior to her
telephone conversation with Ms. Knott. She further related that she taught
WordPerfect 5.1 as part of a number of courses, including English 286, 237 and
137 as well as Communications 101. According to her testimony the work in
question involved one hour out of three, on a weekly basis, spent in the
computer room. She further related that as part of her Honours B.A. program in
Social Sciences, she was involved in programming a mainframe computer.
Her formal training in computer applications includes a 30-hour course in
WordPerfect 5.1, taken in 1991, as well as a one-day course in Windows 3.0, in
1993. Included in her experience is a six-hour course in DOS which she
describes as a one-day refresher.
While the grievor's experience with database preparation is admittedly
limited, she relates that she did, as part of her involvement with the
administration of the Academic Challenge System in the College, prepare a
database for that process. She states that she prepared the Challenge
database using WordPerfect.
7
A second dimension of the position was the Co-ordinator's function. This,
she explained, required a person who had experience co-ordinating part-time
faculty and dealing with student concerns. A significant responsibility of the Co-
ordinator would involve maintaining ongoing communications with the main
campus, to ensure that the requirements of the Basic Business Program, the
responsibility of which resides with the main campus, were at all times being
met.
As Ms. Knott describes the Co-ordinator's position, it involves three
dimensions: the ability to teach a variety of computer applications, teaching
post-secondary English and performing the Co-ordinator's function. She
concluded that Ms. Hyland had neither the computer skills and experience
necessary for the job, nor the experience and knowledge necessary to undertake
the Co-ordinator's role. By contrast, she noted that Ms. Blay had extensive
experience as a co-ordinator, having been responsible for some 1500 students
and 13 professors in the areas of English and Psychology courses for some
three years in the School of Technology. She further notes that Ms. Blay's
practical experience includes extensive use of Lotus and Excel programs to
maintain records and course assignments, as well as Word and WordPerfect.
While neither the grievor nor the incumbent had previously taught spreadsheet
computer applications such as Lotus, Ms. Blay had extensive experience in the
use of both Lotus and Excel in a practical setting.
8
Counsel for the College submits that the approach to be taken in the
instant case, having regard to the application of article 27.06(i),is reflected in the
following passage of an award of the board of arbitration chaired by Arbitrator
H.D. Brown in Niagara College and OPSEU, dated October 31, 1989. At pp.9-
10 of the award the following comment appears:
The grievor must establish that he met the conditions of the Article
of the agreement under which he claims entitlement at that time so
that it must be found if his grievance is to succeed that he was fully
capable of stepping into the shoes of the incumbent as it were in
order to fulfill that position and therefore to displace the incumbent
on the basis'of his greater seniority. The principle has not, in our
opinion, changed from its application under the previous wording of
Article 8.05 which was confirmed in an award Re Conestoga
College and OPSEU (Samuels - December 1986) in which at
page 2 the Board stated:
"under Article 8.05 the grievor only has a right to
displace a less senior employee if he can walk right in
and do his job. This has been confirmed in all the cases
involving this provision - Conestoga College (grievance
of Bailey, unreported decision of Brent, September 6,
1983); Conestoga College (grievance of Keating,
unreported decision of Shime, January 16, 1985); and
St. Lawrence College (grievance of Brown, unreported
decision of Shime, September 11, 1986."
Counsel submits that the grievor fails to meet the test described in the
above passage, stressing that the burden of proof remains upon the Union in
this grievance. He maintains that the grievor simply does not have the
background or skills necessary to responsibly undertake the teaching of
spreadsheet applications and spreadsheet software in the various 'courses for
9
which she would be responsible. Stressing, for example, that the course
description for CMTR 290 requires the student to create and design
spreadsheets, as well as to use word processing software to blend the
spreadsheets into a document or report, counsel argues that Ms. Hyland lacks
the background to undertake such teaching.
Counsel stresses that the grievor's experience is not sufficient to bring
her within the requirements for teaching the courses at the Woodstock campus.
He challenges her suggestion that her involvement in statistics courses as an
undergraduate and graduate student many years ago are sufficient to qualify her
for teaching spreadsheet computer courses. Noting that her teaching
experience in computers was limited to word processing software in the context
of English or Communications courses, he argues that she is plainly lacking in
the requisite practical experience, quite apart from her dearth of theoretical
knowledge or training.
Alternatively, counsel submits that the grievor's experience as a Co-
ordinator is also insufficient for the requirements of the Co-ordinator's job. He
argues that Ms. Hyland's experience as a four-week substitute for the Co-
ordinator of the PLA Program does not represent sufficient relevant experience
for the purposes of the qualifications in question. By contrast, he submits that
Ms. Blay brings extensive experience in co-ordinating, having been a Course
Master and Co-ordinator for three years in the School of Technology at the
10
London campus. Additionally, although Ms. Blay has not previously taught
computer courses, she is well-versed in spreadsheet programs, having made
extensive use of database and spreadsheet software programs, including Lotus
and Excel, in her professional experience.
Counsel for the Union takes a different view. He stresses the fact that
neither Ms. Blay nor the grievor had any prior experience in teaching database
computer programs and spreadsheet applications. He argues that the College
gave insufficient weight to the fact that the grievor took a five-day course in
Lotus while living in Singapore, a fact which he concedes did not emerge in the
first telephone conversation between the grievor and Ms. Knott. He also notes
that Ms. Blay could not claim extensive knowledge of Access and appears to
have enrolled in a course in that software application subsequent to her
appointment to the vacancy. He notes the grievor's evidence that she followed
the same course.
Counsel also disputes the characterization of the grievor's co-ordinating
experience made by counsel for the College. He notes that in addition to having
been an acting Co-ordinator in the summer of 1995, over a seven-week period,
the grievor also acted as Assistant Co-ordinator in the PLA program during the
fall semester of 1995. He argues that the grievor has demonstrated that she had
both sufficient background in spreadsheets, having taken a course in Lotus, and
adequate experience as a Co-ordinator. He argues that she should have been
11
viewed as sufficiently skilled to be appointed to the vacancy, on the basis of her
greater seniority.
We turn to consider the merits of this grievance. Firstly, it should be
stressed that there is no issue before us of the quality of the grievor's prior work
experience, and her ability as a teacher of English, based on her prior work in
both English and Communications courses. Secondly, we are reluctant to give
extensive weight to the argument made at the hearing by the College with
respect to the lack of co-ordinating experience as revealed in Ms. Hyland's
background. There was little, if any, discussion of the co-ordinating dimension,
or of the grievor's co-ordinating experience, during the course of her initial
telephone conversation with Ms. Knott. Ms. Knott, whom we take to be a fair and
candid witness, made it clear that her decision not to pursue the grievor to the
point of an interview was based substantially on the fact that Ms. Hyland had
little or no background in spreadsheet applications, professing to have never
previously heard of Excel or Access.
It appears to the Board to be beyond discussion that the College is
responsible for assigning competent persons to teach the courses which it holds
out to students and the public as part of its curriculum. We are prepared to
accept that in a technical field such as computers, there may be some difficulty
in the uninitiated assessing the relative technical qualifications of individuals. In
the instant case, however, we do not have great difficulty in understanding the
reluctance of the College to assign to Ms. Hyland the responsibility of teaching
many students computer programs which she herself had never studied or
worked in. We appreciate that the grievor's experience in the theoretical
underpinnings of Statistics may have some bearing on her ability to eventually
grasp and work with certain database and spreadsheet programs in computers.
In fairness, however, neither the collective agreement nor common sense would -
suggest that, in an area of technical expertise, the College is or should be
compelled to assign a teaching vacancy on the basis of a candidate's potential
to learn the systems and materials which he or she is immediately charged with
teaching. We have substantial difficulty concluding that it was improper or out of
keeping with the prerogatives of the College under the terms of the collective
agreement to require that the person deemed qualified to teach courses in
Lotus, Excel, Access and PowerPoint have at minimum a practical working
knowledge of those programs, or at least of a majority of them.
The grievor had no background in any of those programs at the time the
College was required to make its decision to fill the vacancy at the Woodstock
campus. By contrast, Ms. Blay had extensive day-to-day experience in the use
of Lotus and Excel, having used spreadsheet applications extensively in her
previous work. When all of the evidence is considered, we are compelled to the
conclusion that the College acted in good faith and correctly in requiring a
degree of experience and actual 'working knowledge of database and
spreadsheet applications as a qualification for the position. Nor do we place
13
extensive weight on the fact that the incumbent, Ms. Blay, had not previously
taught computer courses. In the community college setting, it is not uncommon
to draw upon persons from the field, with extensive practical experience and
limited, if any, teaching experience, to handle courses with a substantial
technical or practical content. On the whole, and without commenting on the
separate issue of the grievor's co-ordinating experience, we are satisfied that the
College acted reasonably and within the ambit of the collective agreement in
coming to the decision, made initially by Ms. Knott at the time of her first
telephone conversation with the grievor, that Ms. Hyland did not have the
necessary qualifications for the position at the time the vacancy was filled.
For the foregoing reasons the grievance must be dismissed.
Dated at Toronto this 29th day of September, 1997
~chel G. Picher, Chairperson
"Ron Hubert"
Employer Nominee
Dissent Attached
John McManus, Union Nominee
I have had ~he opportunity ~o read and
~h~d be agplied ~o ~e College's ~~nt
a~ auch ~e Grie~r ohould not ~ d~i~ ~e op~~y ~ fill
In additi~n, I a~e wl~ ~ ~ollea~es
1. the "=h~re=~c~ ~de~~g~ of
S. us~ Wo~~e~; and,
all ~~e to ~vide ~r wl~ ~e ~~ ~~en~, skill
For ~e ~Ore~ r~eon~ I would ha~
~ M~us, Un,on Ko~ee