HomeMy WebLinkAboutRobson 88-09-09 GRIEVANCE AWARD
HEADNOTE 88B720
OPSEU FILE : 88B720
OPSEU LOCAL : 110
ROBSON, M v. Fanshawe College
Award dated May 25, 1989 (Devlin)
Time limits - arbitrability - the grievor alleges College
improperly combined sessional and partial load appointments to
circumvent the completion of the grievor's probationary period.
Employer raised two preliminary objections: 1) grievor was not
continuously employed by the College for four months immediately
preceding the filing of her grievance and therefore, pursuant to
Article 11.01, was not entitled to the benefits of the grievance
procedure set out in Article 11.02 to 11.05; and 2) the
grievance was beyond the twenty-day period for making a
complaint.
Grievance dismissed: in respect of the employer's first
objection, Board held that the employer could not take the
position that the grievor was not entitled to grieve in view of
its previous position in respect of the Union grievance in an
identical matter. In respect of the second objection, Board
determined that the time began to run on the last date on which
the grievor could have completed her probationary period. Since
the grievance was filed more than twenty days after that date,
the Board determined that it was untimely.
Peter J. Lukasiewicz
Z.--//0
IN THE MATTER OF AN ARBITRATION
BETWEEN:
FANSHAWE COLLEGE '
(the "College")
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(the "Union")
RE RELEASE IN RESPECT OF MARCIA ROBSON
BOARD OF ARBITRATION: Pamela C. Picher - Chairperson
Rene St. Onge - Employer Nominee
3ohn McManus - Union Nominee
APPEARING FOR THE
COLLEGE: Pamela Chapman - Counsel
APPEARING FOR THE
UNION: Brenda Bowlby - Counsel
Hearings in this matter were held in London on May 19 and 3une 27, 1988.
AWARD
The Union maintains that the College failed to give the grievor, Ms. Marcia
Robson, notice of release from employment that was in compliance with the terms of
the collective agreement. It is the position of the Union that the grievor, a full-time
probationary employee at the time of her release, was entitled to at least ninety days
written notice of release pursuant to the combined operation of article l(c) of Appendix
III (Sessional Employees) to the collective agreement and article g.Ol(c) of the
agreement. Those and other relevant provisions are set out below:
APPENDIX III
SESSIONAL EMPLOYEES
l(a) A sessional employee is defined as a fuU-time '~mployee
appointed on a sessional basis for up to twelve (12) full months
of continuous or non-continuous accumulated employment in a
twenty-four (21.) calendar month period. Such sessional
employee may be released upon two (2) weeks~ ~ritten notice
and shall resign by giving two (2) weeks' written notice.
(c) H a sessional employee is continued in employment for
more than the period set out in paragraph (a) above, such an
employee shall be considered as having complete! the first year
of the two (2) year probationary period and thereafter covered
by the other provisions of the Agreement. The balance of such
an employee's probationary period shall be twelve (12) full
months of continuous or non-continuous accumulated
employment during the immediately foUowing twenty-four (2q)
calendar month periocL
Article 1
RECOGNITION
1.01 The Union is recognized as the exclusive collective
bargaining agency for all academic employees of the Colleges
engaged as teachers (including teachers of Physical Education),
counsellors and librarians, all as more particularly set out in
Appendix I hereto save and except Chairmen, DepaE[H~nt Heads
and Directors, persons above the rank of Chairman, Department
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Head or Director, persons covered by the Memorandum of
Agreement with the Ontario Public Service Employees Union in
the support staff bargaining unit, and other persons excluded
by the legislation and teachers, counsellors and librarians
employed on a part-time or sessional basis.
NOTE A: "Part-time in this context shall include persons who
teach six hours per week or less."
NOTE B: "Sessional in this context shall mean an appointment
of not more than twelve months duration in any twenty-four
month period."
Article lg
SENIORITY
8.01 (a)(i) A full-time employee will be on probation
until the completion of the probationary period which shall be
two (2) years' continuous employment.
(ii) A full-time employee hired after September 1,
1981, who has completed a probationary period at another
Ontario College of Applied Arts and Technology or who holds a
valid Ontario Teacher's Certificate and who has one year or
more of teaching experience in Ontario will be on probation
until the completion of the probationary period which shall be
one year's continuous employment.
(b) Effective September 1, 1976, the probationary
period shall also consist of twenty-four (2#) full months of
non-continuous employment (in periods of at least one (1) full
month each) in a forty-eight (#8) calendar month period. For
this purpose, only the period after September 1, 1975, shall be
considered and no prior employment or calendar period shall be
taken into account or credited. However, an employee's
continuous service acquired in accordance with the provisions
of the previous agreement dated the 17th day of September
1975, as at August 31, 1976, for the period back to September
1, 1975, shall count as continuous employment or months of
non-continuous accumulated employment for the purpose of this
Section.
For the purpose of this paragraph, effective
September 1, 1976, a calendar month in which the employee
completes fifteen (15) or more days worked shall be considered
a "full month".
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(c) During the probationary period an employee will
be informed in writing of the employee's progress at intervals
of four (4) months continuous employment or four (#) full
months of accumulated non-continuous employment and a copy
given to the employee. Also, it is understood that an employee
may be released during the first five (5) months of continuous
or non-continuous accumulated employment foUowing the
commencement date of the employee's employment upon at least
thirty (30) calendar days' written notice and during the
remainder of the employee's probationary period upon at least
ninety (90) calendar days' written notice. If requested by the
employee, the reason for such release will be given in writing.
(d) Upon the completion of the employee's
probationary period, a full-time employee shall be credited with
two (2) years' seniority if treated under 8.01(a)(i) or one (1)
year's seniority if treated under 8.01(a)(ii). An employee who
commenced full-time employment with the College directly from
the College's predecessor educational institutions shall be
credited for the purpose of this Article with seniority equal to
the employee's continuous service in such predecessor
institution. The list of predecessor educational institutions
referred to herein is attached as Appendix VIII of the
Collective Agreement.
emphasis added ]
The grievor has been employed by the College through a series of partial load or
full-time sessional appointments since 1979. By March of 1979 she had completed
"twelve (12) full months of continuous or non-continuous accumulated employment in a
twenty-four (2#) calendar month period" within the meaning of article l(a) of Appendix
III, set out above. Ms. Robson was then continued in employment for a further period,
the period in dispute which gives rise to this arbitration.
By a letter dated April 9, 1986, Ms. Robson was offered "temporary" employment
as a full-time probationary teacher for a definite term extending from April 1#, 1986 to
May 16, 1986. The letter further stipulated that her employment with the College would
cease on May 16, 1986. Ms. Robson was thus provided with approximately 37 days
notice of release through the same letter that offered her a term contract of
employment of approximately 32 days. The letter dated April 9, 1986 reads as follows:
Dear Ms. Robson:
As a followup to your recent conversation with Mr. M. Black~
we are pleased to be able to confirm an offer of temporary
employment as a 'Full-Time Probationary' teacher in the
Preparatory Studies Division of the College, for the period 1986
0t~ lq to 1986 05 16 inclusive. The teaching assignment has
been established with you and will only be altered if necessary,
after discussion with you.
Unless you are advised otherwise in writing, your employment
with the College will cease on 1986 05 16 without further
written notice.
The terms and conditions of this employment are in accordance
with the Collective Agreement for Academic Employees. Please
contact Human Resources should you require a copy of that
document. Your pay will be based on a rate of $28,377.00 per
annum, and you will be paid on or about the 2qth of each
month, into a bank account designated by you. The above-
quoted rate includes vacation pay. Deductions such as Income
Tax~ Canada Pension, Unemployment Insurance and OHIP will
be made as applicable.
Please sign and return a copy of this letter to our Human
Resources Department (Room B1056) to indicate your
understanding of and acceptance of this offer of temporary
employment. Would you also please phone Human Resources
(~52-4246) to arrange for an interview for the purpose of
completing any necessary documentation. Note that your pay
will be initiated only upon completion of both of the above
actions.
Any queries regarding your teaching assignment should be
directed to your department head.
Yours sincerely,
"Harry Rawson"
President
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It is undisputed that for the period of employment under review Ms. Robson was
no longer a sessional employee~ excluded from the bargaining unit. Instead she had
attained the status of a full-time probationary teacher within the bargaining unit. She
no longer Was paid an hourly wage but was paid on the basis of an annual salary with
benefits and deductions. Ms. Robson testified that when she read the terms of the
April 9th letter offering her a limited term appointment of approximately 32 days she
was concerned that she was not being provided with proper notification of her release
from that appointment and thus consulted the Union. As requested~ Ms. Robson
signed the contract and letter from President Rawson but submitted at the same time
the following letter of explanation and position:
1986 04 10
Dear Mr. Rawson:
Please find enclosed a copy of my 'Full-Time Probationary'
contract for the period 1986 04 14 to 1986 05 16 inclusive.
Assuming that this contract is in accordance with the
Collective Agreement~ I accept the conditions of this
agreement.
Sincerely~
"Marcia Robson"
On or about May 29, 1986, Ms. Robson filed a grievance alleging that she had received
inappropriate notice of release.
On 3une 12, 1986, Ms. Robson sent the College a memo indicating that she would
be unavailable for employment from June 30, 1986 to August 15, 1987 and further stating
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that upon her return she wanted to resume her relationship with the College. Ms.
Robson utilized the period for personal professional development. It is common ground
that when she became unavailable she was not currently employed by the College and
thus was not given "permission" to leave. She did not take a "leave of absence" as that
term is commonly understood in the employment context. When Ms. Robson developed
the intention to become unavailable to work for the College from 3une 30, 1986 to
August 15, 1987 and whether she communicated that intention to the College prior to
her memorandum dated 3une 12, 1986 was not revealed in evidence.
The Union argues that article 8.01(c) entitled the grievor to at least 90 days
written notice of release. The Union submits that at the point of her April-May 1986
appointment the grievor was in the second year of her two year probationary period,
and thus was well beyond the first five months of her probationary period during which
only 30 days notice of release would be required. To place the grievor in the second
year of the two year probationary period where she would be entitled to 90 days notice
of release, the Union relies on article l(c) of the collective agreement which provides
that a sessional employee who has completed 12 months of continuous or non-continuous
accumulated employment in a 2# calendar month period "shall be considered as having
completed the first year of the two (2) year probationary period and thereafter covered
by the other provisions of the Agreement".
It is the position of the Union that proper notice of release is a mandatory
condition precedent to the effectiveness of the release and that in the absence of due
notice the release is void ab initk~ In support of this position, counsel relies on the
decision in Re CIP Containers Ltd. and International Chemical Workers, Local 22~ (1973),
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2 L.A.C. (2d) 308 (H.D. Brown). Accordingly, counsel maintains that the grievor is still
employed and that effective release would now require 90 days notice.
The College has a different view of the grievor's rights. First,. counsel for the
College argues that the grievor was not "released" within the meaning of article 8.01(c)
of the agreement because her definite term of employment from April 14, 1986 to May
16, 1986 just came to its natural end. Counsel maintains that a teacher is "released"
for the purposes of article 8.0l(c) if the College seeks to terminate the teacher during
an indefinite appointment or if it seeks to end ahead of its scheduled end a definite
term appointment such as the grievor's. The College maintains that since it did not try
to prematurely end the grievor's 30 day definite term appointment, the notice provisions
in article 8.01(c) were not triggered.
The second and alternative position of the College is that i~ the notice
provisions apply to a termination at the expiration of a definite term appointment then
the grievor would only be entitled to 30 days notice because she was within the first 5
months of her period of employment with the College as an employee within the
bargaining unit. Counsel argues that the five months referred to in article 8.01(c) must
speak to the period of the grievor's employment as a full-time probationary employee
within the bargaining unit and cannot reach back to a point when she was a sessional
employee and not included in the bargaining unit.
As a further alternative position, counsel for the College maintains that even if
the notice provisions apply to the natural expiration of a definite term appointment and
even if the grievor was entitled to 90 days notice of release, the failure to give due
notice does not void the release. In support of this position the College relies on the
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decision in Board of Governors of Sheridan CoUege of Applied Arts and Technology and
O.P.S.E.U. (grievance of Ronald Brackenridge) unreported decision of 3. Brunner dated
May 6, 1985. Counsel maintains that at most the College would be obligated to
compensate the grievor for the shortfall in the notice that was actually given.
Moreover, counsel maintains that the grievor should not be compensated for any
portion of the 90 days that would extend beyond :June 30, 1986 since she, by her own
volition, became unavailable for work at that point.
After carefully considering the submissions of the parties the Board concludes
that the plain meaning of articles l(a) of Appendix III and article g.01(c) is that once
a sessional employee has completed 12 full months of accumulated employment in a 24
month period (as had the grievor by March of 1986), that employee, at the
commencement of a period of subsequent employment, (at least within the immediately
following 24-month period), becomes a full-time probationary employee within the
bargaining unit having completed the first year of the two-year probationary period.
Crediting an employee within the bargaining unit with probationary service through work
performed outside the bargaining unit is not an alien concept in collective agreements
and, we conclude, is expressly provided for in Appendix III of this collective agreement.
The clear wording of article 8.01(c) indicates that the 30-day notice period
which operates during "the first five (5) months of continuous or non-continuous
accumulated employment following the commencement date of the employee's
employment" refers to the first 5 months of the probation period and is not restricted
to the first five months of employment in the bargaining unit. This interpretation
flows directly from a full reading of the clause which expressly provides for a 90-day
notice period "during the remainder of the employee's probationary period ...". The use
of the word, "remainder" in this part of the clause makes it clear that the prior
reference to the "first five (5) months" means the first five months of the probationary
period.
The Board concludes then that when the grievor performed her work from April
14 to May 16, 1956 she did so as a full-time probationary employee who through the
operation of article l(a) of Appendix III had been credited with one year of
probationary service and thus was standing at the commencement of her second year of
probation. She thus had completed well more than 5 months of accumulated employment
and was entitled to at least 90 days written notice of release. We observe that this
conclusion does not prevent the College from giving a teacher in the grievor's position
a term of employment of less than 90 days. Rather it requires th_e_ .notice of release to
be 90 days.
The Board does not accept the assertion of the Union that the College's release
was void ab initio by virtue of its failure 'to give due notice. The release was
effective but it was done in violation of the collective agreement. Accordingly, the
grievor should be compensated for the breach by being placed in the position she would
have been in had there been no violation of the collective agreement.
It was on April 9, 1986 that the College gave its notice of the release to be
effective on May 16, 1986. It thus provided approximately 37 days notice of release
and the grievor was entitled to another 53 days notice. The evidence before the Board
does not establish that the grievor would not have been available to work throughout
that 90 day period. Her notice to the College of her unavailability from 3une 30, 1986
to August 15, 1987 was dated 3une 12, 1986 and thus followed her actual release. Once
the failure to give adequate notice has been established, the burden rests with the
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College to establish a proper basis for circumscribing the grievor's entitlement to
compensation for the shortfall in the notice. That burden has not been met in this
instance. It may well be that if the grievor had been asked to work through the 90
day period instead of being released prematurely she would not have become unavailable
for work on June 30th. The date of her stated unavailability was formally
communicated by a letter dated June 12th, a date after her release. The College has
not established that the grievor would not have been available to work through the 90
day period if she had been asked in a timely manner.
Accordingly, the Board concludes that the appropriate remedy for the College's
breach of the collective agreement is to compensate the grievor for 53 days wages in
lieu of the notice she should have received. . .
For the reasons set out above the Board finds that the College breached the
collective agreement through its failure to provide the grievor with 90 days notice of
release. The College is directed to fully compensate the grievor for her losses on the
basis of 53 days wages in lieu of notice. The Board remains seized in the event that a
dispute arises over the implementation of this Award.
DATED at Toronto this 9th day of Sep~ ~
Pamela C. Picher
Chair
"Rene St. Onge"
I CONCUR. Employer Nominee
I CONCUR. "John McManus"
Union Nominee