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HomeMy WebLinkAboutMayer 16-01-07IN THE MATTER OF AN ARBITRATION BETWEEN: CONFEDERATION COLLEGE - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION GRIEVANCE OF RAYMOND MAYER JANE H. DEVLIN APPEARANCES FOR THE COLLEGE WALLACE KENNY JEANNINE VERDENIK DARLENE GIBA APPEARANCES FOR THE UNION NICOLE MIHAJLOVIC PETER KUZYK BERT DUBE RAYMOND MAYER SOLE ARBITRATOR The Grievor, Raymond Mayer, is a Professor of Engineering Technology in the College's School of Engineering Technology and Trades. The issue between the parties concerns his initial placement on the salary schedule when he became a full- time Professor at the College in August, 2011. In particular, the issue centres around the credit to which he was entitled in the factor of relevant formal qualifications. This is one of the Appointment Factors found in the Classification Plan for Professors, Counsellors and Librarians. In this regard, the Plan includes the following: 1. 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 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 program. Double counting must be avoided. For example, if an applicant worked as a graduate assistant while pursuing an advanced degree, the person shall not be given full credit for both experience and educational time. Similarly, relevant teaching experience means full years of teaching experience at a level comparable to the level required of the applicant. Again, double counting must be voided for teaching experience as, for example, a graduate assistant while pursing advanced qualifications. 2 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: '/ 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 will be given 1 %2 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 is 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 Post -Secondary Certificate - per year (level) completed: 1 %2 points (Maximum of 4 years) University Degree - per year (level) completed 1 %2 points (Maximum of 6 years) - Formal integrated work/study program such as P. Eng., CA, CGA, CMA (formerly RIA) Certified Journeyperson - Per year (level) completed 1% points (Maximum of 5 years) (Note that years included herein are not also to be included under Factor A) Reference was also made to Article 32.03 E of the collective agreement, which provides as follows: 32.03 E The arbitrator/arbitration board shall not be authorized to alter, modify or amend any part of the terms of this Agreement nor to make any decision inconsistent therewith; nor to deal with any matter that is not a proper matter for 3 grievance under this Agreement. Section 14(16) of the Colleges Collective Bargaining Act, 2008 shall not apply. Section 14(16) of the Colleges Collective Bargaining Act, which is referred to in Article 32.03 E, provides that except where a collective agreement states that the subsection does not apply, an Arbitrator or Arbitration Board may extend the time for taking any step in the grievance procedure under an agreement, despite the expiration of the time, where the Arbitrator or Arbitration Board is satisfied that there are reasonable grounds for the extension and that no party will be substantially prejudiced by the extension. The facts in this case are not in dispute. In 1990, the Grievor completed a three-year diploma program at the College in Engineering Technology and Computer Control with emphasis on industrial controls. He testified that this diploma qualified him to work as a Technologist. During the summer months, the Grievor took a number of transition courses at Lakehead University and with the completion of those courses and his College diploma, he was given advanced standing in the University's Bachelor of Engineering program. Accordingly, the Grievor was only required to complete two years of the four year program. He obtained his degree in 1992 and testified that the focus of the program was on digital signal processing, optical and microwave communications and satellite communications. He also testified that his degree qualified him to work with Engineers but that his work had to be certified by an Engineer. U The Grievor subsequently enrolled in a two year program to obtain his license as a Professional Engineer ("P.Eng."). Among other requirements, an applicant for this program must "hold an undergraduate engineering degree from a Canadian Engineering Accreditation Board (CEAB)-accredited program (or possess equivalent qualifications)." The Grievor obtained his P.Eng. designation in 1994 and testified that he was required to complete an integrated work/study program in which his work was overseen by an Engineer. He also testified that the program was quite different from the degree program in which the instruction was theoretical in nature. The Grievor was hired by the College on a part-time basis in 2008 and, as noted previously, he became a full-time Professor in August of 2011. At that time, he was placed at step 12 of the salary schedule based on his four year Bachelor of Engineering degree. The Grievor was evidently concerned about his placement and contacted the Human Resources Department as a result of which, he met with Darlene Giba who advised him that he had been properly placed at step 12. The Grievor testified that he did not file a grievance at the time because he accepted what Ms. Giba said. The Grievor also testified that he later learned that the College had made errors in the initial placement of some faculty members on the salary schedule. Accordingly, in January, 2015, he again contacted the Human Resources Department and at that time, Jeannine Verdenik, a Senior Manager in the Department, undertook a review of the Grievor's initial salary calculation. Based on that review, Ms. Verdenik 5 determined that under Factor B, the Grievor ought to have been given credit for his P.Eng. designation as the collective agreement specifies that only the highest qualification is to be used in the computation unless the subject areas are from different disciplines. On this basis, Ms. Verdenik concluded that the Grievor should have received credit for five years as that is the maximum number of years that can be counted for a P.Eng. designation. As a result, the College adjusted the Grievor's salary by one step retroactive to the date of his inquiry, which was January 22, 2015. In doing so, it appears that the College also deducted two years of experience under Factor A as the P.Eng. program had previously been taken into account under that Factor. The Grievor evidently requested a further review and when the College advised that no further adjustment was warranted, the Grievor filed the present grievance. Although the Grievor's salary was adjusted retroactive to January, 2015, Mr. Kenny, on behalf of the College, advised that he was not conceding that an issue relating to initial placement on the salary schedule involves a continuing grievance, rather than a discrete act for which there are ongoing consequences. However, he indicated that for purposes of this case, he was not advancing a preliminary objection based on timeliness. It was the submission of Ms. Mihajlovic, on behalf of the Union, that at the time the Grievor became a full-time Professor in 2011, he ought to have received three years' credit for his CAAT diploma, four years' credit for his Bachelor of Engineering degree and a further two years' credit for his P.Eng. designation. In support of this 2 submission, Ms. Mihajlovic contended that the fact that the Grievor was able to obtain these qualifications in less than nine years should not be held against him. Ms. Mihajlovic also contended that the language of Factor B should be given its usual and ordinary meaning and that this Factor refers to successively higher levels of post -secondary education. She also noted that Factor B refers to three categories of formal qualifications, namely a CAAT diploma, a university degree and an integrated work/study program and she contended that an employee can receive credit in each of these categories. Ms. Mihajlovic further submitted that the Grievor's qualifications are not the same. In this regard, she noted that with a CAAT diploma, an individual is qualified to work as a Technologist and that while some continue their studies and obtain a degree and a professional designation, others do not. Ms. Mihajlovic also contended that the professional designation involves an entirely separate work/study program. In the result, she submitted that each of the Grievor's educational qualifications is separate and distinct and each allows him to perform different functions. Ms. Mihajlovic also contended that in interpreting Factor B, effect must be given to all aspects of the provision. Accordingly, she submitted that on a plain reading of the language, the parties must have intended a university degree to be distinct from a professional designation. Were it otherwise, Ms. Mihajlovic contended that an individual with a Bachelors degree and a Masters degree, who would be entitled to six years' credit, would only receive five years' credit if he or she also had a professional designation. In these circumstances, Ms. Mihajlovic submitted that the College would benefit if an employee had a professional designation and the employee would be denied credit for the additional year. Ms. Mihajlovic submitted, as well, that the fact that a Bachelor of Engineering degree is a prerequisite for the P.Eng. program does not mean that a duplication of studies is involved. In this regard, she contended that the Grievor was not given advanced standing in the P. Eng. program based on courses he took to obtain his Bachelor of Engineering degree and that the P.Eng. designation is separate and distinct from both the Bachelor of Engineering degree and the CAAT diploma. In the result, Ms. Mihajlovic submitted that in 2011, the Grievor ought to have been placed at step 19 of the salary schedule and she asked that I direct the College to adjust his salary retroactively. It was contended that to do otherwise would allow the College to benefit from its mistake. It was the submission of Mr. Kenny, on behalf of the College, that the Appointment Factors set out in the Classification Plan attempt to ensure that credit is given for relevant experience and qualifications but restrict what can be counted and prohibit double counting. By way of example, he noted that under Factor A, only full years of relevant occupational experience are to be counted and such experience must be related to the material to be taught or the job to be done or some allied aspect of it. Factor A also provides that the College must avoid the extremes of counting either years of time passed or years of entirely non -repetitive experience and must fairly assess the applicant's experience. As well, restrictions are placed on the extent to which part-time experience can be counted and Factor A provides that double counting must be avoided. As to Factor B, Mr. Kenny submitted that a number of conditions are imposed and he contended that the collective agreement does not support the Union's claim that all of the Grievor's qualifications should be counted. Mr. Kenny also contended that in this case, the Grievor's diploma, degree and professional designation are not from different disciplines but from the same discipline, namely, the engineering discipline. He noted, as well, that on the basis of his CAAT diploma, the Grievor was only required to complete two years of the four year Bachelor of Engineering program and that four years is the norm for such programs in Ontario. Mr. Kenny further submitted that as the Grievor received advanced standing in the degree program based on his CAAT diploma, he was given credit for his degree in 2011 as it was the higher qualification and his P. Eng. designation was taken into account under Factor A. Mr. Kenny acknowledged, however, that the P.Eng. designation is recognized as a formal qualification under Factor B and that in this case, the Grievor's degree was in the same discipline and was a prerequisite for the P.Eng. program. Accordingly, when the matter was reviewed in 2015, the College determined that the Grievor was entitled to an additional step on the salary scheduled based on his P.Eng. designation. Mr. Kenny noted that a maximum of five years can be counted for such a W designation and that as the designation was previously counted under Factor A, two years of experience were deducted under that Factor. Mr. Kenny further submitted that the language of Factor B is clear and that only the highest qualification is to be used in the computation unless different disciplines are involved, which is not the case with the Grievor's qualifications. Mr. Kenny also contended that there was no evidence regarding the relevance of the Grievor's qualifications to the subjects he was teaching. Moreover, Mr. Kenny disputed the Union's claim that the Grievor was entitled to credit for years of post -secondary education that he did not actually complete. In the result, Mr. Kenny submitted that the College's revised calculation was accurate and that there is no basis for granting relief retroactive to 2011. In this regard, Mr. Kenny contended that the time limits for filing a grievance under the collective agreement are mandatory and that there is no discretion to grant an extension of time. Moreover, even if the Grievor's claim were considered to involve a continuing grievance, which was not conceded, it was submitted that relief is properly confined to the period within which the grievance was filed. Mr. Kenny also submitted that awarding relief retroactive to 2011 would engage another collective agreement over which I have no jurisdiction. Accordingly, he asked that the grievance be dismissed. By way of reply, Ms. Mihajlovic submitted that no duplication of studies was involved in this case and that the Grievor's CAAT diploma, degree and professional 10 designation qualified him to perform different types of work. Ms. Mihajlovic also noted that Factor B clearly provides a maximum of four years' credit for a CAAT diploma, a maximum of six years' credit for a university degree and a maximum of five years' credit for a professional designation and that these are different qualifications. She submitted, as well, that there is nothing to prohibit an employee from receiving credit for both a university degree and an integrated work/study program. Decision The issue in this case concerns the credit to which the Grievor was entitled under Factor B of the Classification Plan, which deals with relevant formal qualifications. As noted previously, the Grievor completed a three year CAAT diploma in Engineering Technology and Computer Control in 1990. Based on his diploma and the completion of a number of transition courses, the Grievor was given advanced standing in a four year Bachelor of Engineering program with the result that he only had to complete two years of the program. The Grievor obtained his degree in 1992 and then completed a two year work/study program and obtained his P.Eng designation in 1994. Although the College submitted that there was no evidence regarding the relevance of these qualifications to the material taught by the Grievor, the College initially placed the Grievor at step 12 of the salary schedule based on his four year Bachelor of Engineering degree. At that time, it appears that the Grievor received credit for his 11 P. Eng designation under Factor A, rather than Factor B. When the College reviewed the matter in 2015, it determined that the Grievor was entitled to an additional step on the salary schedule based on his P.Eng. designation as Factor B specified that only the highest qualification was to be used in the computation. Accordingly, it seems clear that the College recognized the relevance of the Grievor's qualifications. Factor B of the Classification Plan provides that formal qualifications are those which constitute the norm in institutions of post -secondary education in the Province of Ontario. The Factor also provides that only full years of post -secondary education at successively higher levels, and leading to a diploma, professional accreditation or degree are recognized. By way of example, a graduate of a three-year technology program in a College is to be given 1 %2 points for each year of the three year program, regardless of the length of time actually spent by the individual obtaining the diploma. Factor B then provides that no credit is to be given for a year of study in which there is significant duplication of other studies. Therefore, only the highest qualification is to be used in the computation unless the subject areas are from different disciplines and all are relevant to the appointment. The balance of Factor B then sets out the maximum number of points to be credited for each year completed leading to a diploma, degree or accreditation. Finally, Factor B provides that the years included under this Factor are not also to be included under Factor A. In the result, based on the provisions of Factor B, it is apparent that the parties have agreed that credit will not 12 be given for all years of post -secondary education: see Fanshawe College and Ontario Public Service Employees Union May 3, 1993 (P.C. Picher (unreported)) and Seneca College and Ontario Public Service Employees Union, Local 560 June 12, 2008 (Starkman (unreported)). Although the Union submitted that the Grievor ought to receive three years' credit for his CAAT diploma, four years' credit for his Bachelor of Engineering degree and two years' credit for his P. Eng. designation, I cannot accept this submission. In my view, it is clear from the initial paragraph of Factor B that an individual who spends more than three years obtaining a three year diploma is not to receive more than three years' credit. Equally, I find that there is no basis for recognizing years of post -secondary education not actually completed and, in this case, the Grievor obtained his qualifications in less than the nine years for which the Union claimed that he was entitled to credit. Accordingly, I disagree with the reasoning in Sault College and Ontario Public Service Employees' Union April 5, 2001 (McLaren (unreported)). In that case, the majority of the Board found that the grievor was entitled to four years' credit for two CAAT diplomas and four years' credit for his university degree although it did not take eight years to obtain these qualifications. It is necessary, then, to consider the second paragraph of Factor B and, as noted previously, the first sentence of the paragraph provides that no credit is to be given for a year of study in which there is a significant duplication of other studies. The 13 second sentence of the paragraph begins with the word "Therefore" and, in this respect, I find that it explains how credit is to be calculated where a significant duplication of studies is involved. The second sentence provides that in those circumstances, only the highest qualification is to be used in the computation unless the subject areas are from different disciplines and all are relevant to the appointment. In this case, there is no dispute that the Grievor's diploma and his degree involve the same discipline and he received advanced standing in the Bachelor of Engineering program based on his CAAT diploma and the completion of a number of transition courses. Advanced standing is generally granted because course work that has already been completed is considered comparable to a portion of the course work in the program to which the individual has applied. In this respect, a duplication of studies is involved and, accordingly, Factor B provides that only the highest qualification is to be counted. On this basis, the Grievor is entitled to credit for each year of his four year Bachelor of Engineering program and no credit is to be given for his CAAT diploma. The Grievor also completed a two year integrated work/study program to obtain his P.Eng designation. Although the College maintained that this designation should be counted as the Grievor's highest qualification based on the second paragraph of Factor B, I cannot accept that submission. In my view, the second sentence of the second paragraph of Factor B cannot be read in isolation. Instead, as noted previously, I find that this sentence explains how credit is to be calculated where 14 a year of study involves a significant duplication of other studies. In this case, the Grievor did not receive advanced standing in the P.Eng. program based on courses he had taken to obtain his Bachelor of Engineering degree. Instead, that degree was a prerequisite for the P.Eng program, which involved a two year work/study program. In these circumstances, it cannot be said that a duplication of studies was involved and I find that the second paragraph of Factor B has no application in the case of the Grievor's P. Eng. designation. Accordingly, the Grievor is entitled to credit for each year of the two year program in addition to four years' credit for his Bachelor of Engineering degree. In my view, this conclusion is consistent with the award of Arbitrator Palmer in Cambrian College and the Ontario Public Service Employees' Union May 16, 1988 (unreported). In that case, the grievor had a Bachelor of Arts degree and a Bachelor of Education degree and the College gave her credit under Factor B for the former degree and credit under Factor A for the latter degree. The union maintained that the grievor was entitled to credit under Factor B for her Bachelor of Education degree on the basis that it was a formal qualification. The union also contended that the restriction set out in the second paragraph of Factor B was inapplicable because a Bachelor of Education degree could only be taken after having obtained a Bachelor of Arts degree. In allowing the grievance, the Board adopted the reasoning of the Union . In this regard, the majority of the Board found that prima facie, all degrees fall within Factor B and that a Bachelor of Arts degree was a prerequisite for a Bachelor of Education degree and, in that sense, the latter degree was a higher degree. 15 In the result, the grievance is allowed to the extent that I find that the Grievor was entitled to credit for each year of his four year Bachelor of Engineering program and to two years' credit for the work/study program that he completed to obtain his P.Eng. designation. In my view, however, it is not appropriate to grant a remedy retroactive to August of 2011. Even if the Grievor's claim were regarded as a continuing grievance, which was not conceded by the College, in such cases, relief is generally confined to the period within which the grievance was filed: see Re St. Raphael's Nursing Homes Ltd. and London and District Service Workers' Union, Local 220 (1985), 18 L.A.C.(3d) 430 (Roberts) and Re Sifto Canada Corp. and Communications, Energy and Paperworkers Union, Local 16-0 (2010), 198 L.A.C.(4th) 325 (Surdykowski). In this case, the College initially adjusted the Grievor's salary to January 22, 2015, which was the date that he raised the matter with the Human Resources Department. If there is any dispute between the parties as to whether the additional adjustment should be retroactive to that date to the period within which the grievance could be filed, I shall remain seized to deal with that issue. I shall also remain seized for purposes of implementation or clarification of my award. rL DATED AT TORONTO, this day of January, 2016. Sole Arbitrator