HomeMy WebLinkAboutWaffle 99-12-24IN THE MATTER OF AN ARBITRATION
BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(the "Union")
AND -
GEORGE BROWN COLLEGE
(the "College")
- AND -
MARY GAZEL
(the "Incumbent")
AND IN THE MATTER OF THE GRIEVANCE OF G. WAFFLE
OPSEU FILE #96D737 (ACADEMIC)
BOARD OF ARBITRATION Robert D. Howe, Chair
Larry Robbins, Union Nominee
Rene St. Onge, College Nominee
APPEARA/~CES
For the Union Alick Ryder, Counsel
Georgea Waffle -
For the College Ann E. Burke, Counsel
Ann Lillepold
Michael Cooke
Fo? tho Incumbcnt Mar~ Ga~=l
Hearings in the above matter were held in Toronto, Ontario on
June 3 and December 19, 1997; January 6, 7,. and 13, July 23, ?
28, and 29, September 15, and October 2, 1998; and February 1,
September 16, and October 6 and 27, 1999.
AWARD
In his opening statement, counsel for the Union
described the grievance which has been referred to this Board
of Arbitration (the "Board") for determination in these
proceedings as having the following three components:
(1) an allegation that the grievor should not have been laid
off because there is a junior employee (Mary Gazel) performing
work which the grievor is fully qualified to perform;
(2) an allegation that the College's obligation to give
preference to continuation of full-time positions over
partial-load, part-time, or sessional positions (under Article
27.05 of the Collective Agreement) was not met with respect to
the staffing plan for the 1996-97 academic year; and
(3) an allegation of an anticipatory breach of the grievor's
recall rights, in violation of Article 27.09, based upon her
being told that if she were to be recalled she would be
recalled on a sessional basis.
After hearing the submissions of counsel regarding
the arbitrability of those three components (and Union
counsel's request for an order directing production of
on June 3, 1997:
Having duly considered the submissions of counsel, we
have reached the following conclusions:
1. The "anticipatory breach" issue referred to by
Union counsel as issue %3 is not within the scope of
the grievance and will not be heard by this Board of
Arbitration. If such a breach occurs, a grievance can
be filed in respect of it and duly dealt with in
1
accordance with the provisions of the Collective
Agreement.
2. We have decided to reserve our ruling on the
arbitrability of issue #2 (i.e., the full-time position
preference issue), and to proceed to deal with issue ~1
(i.e., the lay-off issue). In making this decision, we
have taken into account the fact that if the Union is
successful on issue #1, the second issue might well be
moot. If the Union is unsuccessful on issue #1, we
will hear further submissions and, if necessary,
evidence, regarding the arbitrability of issue #2.
3. We hereby order the College to produce reasonably
in advance of the next hearing date all documents in
the College's possession which describe the duties
assigned to Mary Gazel during the 1996-97 academic
year.
During the course of these protracted proceedings,
the Board heard detailed testimony from three witnesses:
Georgea Waffle, the grievor; Helen Brown, the coordinator of
the portion of the College's Personal Support Worker Program
("PSWP") fully funded by the Ministry of Health, who was
previously a coordinator of the College's Home Support Worker
Program ("HSWP"); and Georgia Quartaro, a Chair in the
College's Faculty of Community Services, who at the time of
the grievance was responsible for a total of twelve programs,
including the PSWP (and its predecessors, the Health Care Aide
Program ("HCAP") and the HSWP), and whose responsibilities as
Chair included assigning teaching loads and preparing SWF's.
In addition to the testimony of those three
witnesses, the Board has before it twenty exhibits which were
entered during the course of the proceedings. In making the
findings and reaching the conclusions set forth is this award,
the Board has duly considered all of that oral and documentary
evidence, as well as the submissions of counsel. The Board
2
has also assessed what is most probable in the circumstances
of the case, and considered the inferences which may
reasonably be drawn from the totality of the evidence.
The incumbent, Mary Gazel, was duly notified of these
proceedings and was given full opportunity to participate in
them. Although she elected not to testify, a considerable
amount of 'evidence was adduced through other witnesses
concerning her background, qualifications, and experience, as
well as concerning her duties and responsibilities at the
College. Ms. Brown, for example, provided the Board with the
following summary in that regard:
Mary Gazel is a nurse. She taught for many years in
the HCAP. She coordinated the part-time HCAP. She
arranged or supervised the field service for a large
portion of the HCAP. She developed the beginning
modules for our Level III program when that was
developed. She was involved in many committees that
brought her in contact with other agencies and
government people like the Metro Home Care Program and
the Ontario Community Support Association. She worked
with the Alzheimers Society in developing our
cognitively impaired program. She has taken training
to be a trainer in HIV-Aids programing, and also to be
a trainer in an experimental program called "Through
Other Eyes". She served as a resource to our teaching
group on many of those issues.
Level III of the HSWP began as a single course called
"Caring for the Cognitively Impaired". Ms. Gazel developed
.............. t~hat-~ourse--i~---z~p-o~-e--t-o--~-~qU--~--I~6~--f~-~m~nit~'--t-~at ........
home support workers be trained to work with clients with
dementia. She subsequently developed three additional courses
in response to community requests for more specialized skills.
Dr. Quartaro told the Board that she selected Ms. Gazel to
develop those Home Support Level III courses "because she had
3
the knowledge of the HSWP as it was then being delivered, and
had contacts with the community and a good sense of what the
further training the community agencies were asking for would
consist of."
Ms. Gazel was also instrumental in developing the
HSWP's Home Support for Health Care Aides stream, which was
designed to address the needs of health care aides who wanted
to expand their qualifications to include those of home
support workers. During the 1994-95 academic year, she and
Ms. Brown developed a program for Villa Charities (the
"Columbus Centre Project") designed to train young people to
be culturally sensitive Home Support Workers for the Italian
community.
The incumbent's Standard Workload Form ("SWF") for
the period from September 3, 1996 to December 31, 1996 was
entered as an exhibit at the behest of the Union, over
objection by College counsel who contended it was of no
evidentiary value since it did not reflect the duties and
responsibilities actually performed by the incumbent during
that period. That SWF was signed by Dr. Quartaro on May 6,
1996, and was signed by the incumbent two days later. The
th~cc cou-~es---ii~b~d'-u~ it a~--CAK~-5~'CAR~ 5024, and CARE
5026. The complementary functions which it lists are
"Departmental or Divisional Meetings", "Promotional Meetings",
and "Co-ordination Of Home Support". SWF's covering the -'
periods from January ~, 1997 to March 7, 1997 and from March
10, 1997 to July 4, 1997 were also entered as exhibits.
4
However, they were not prepared until 1997.
At the request of Union counsel (who was proceeding
on the assumption that College Counsel would argue that the
Board should find the incumbent's position to be comprised of
all of the duties and responsibilities which the incumbent
actually performed during the 1996-97 academic year,
regardless of when they were assigned to her), a list of the
duties which the incumbent actually performed in 1996-97 was
prepared by the College and entered as an exhibit in these
proceedings. It includes the following information regarding
the incumbent's actual duties and responsibilities during the
period from the start of September to the end of December of
1996:
Sept. - Nov.
-CARE 9008 x 2 Level II for Health Care Aides
"Health & Illness',
-CARE 5026 x 2 Level III for Health Care Aides
"Caring for Persons who
are Cognitively Impaired"
-CA_RE 5026 x 2 Level III for Home Support
Workers
-CA_RE 5020 x 1 Level III for Health Care Aides
"Conzmunication &
Personal Work Skills"
Workers
Nov. - Dec.
-C~E 5013 x 1 Level II for Home Support
Workers
Other duties:
1. Coordination, Planning and Teaching in a
project with Scarborough Support Services for
5
training Private Home Day Care for the
Elderly. Aug. 96 - March 97
2. Planning and Student Selection for project
with Villa Charities for training youth as
culturally-sensitive Home Support Workers.
Sept. 96 - Feb 97
3. Assisting in coordination of the basic
programs: Home Support Levels II & III and
Home Support for Health Care Aides.
e.g., tracking student attendance,
attending meetings at Home Care Program.
4. Beginning Nov. 96, negotiations began for 2nd
Personal Support Worker Pilot Project
In explaining why some of the work actually performed
by Ms. Gazel during the fall semester of the 1996-97 academic
year differed from the work listed in the SWF, Dr. Quartaro
testified that it was always difficult to predict in May what
faculty members would be doing in September, except in a
general way based on what was probable. It was also her
evidence that at the time she issued that SWF, she did not
know whether or not a second PSWP pilot project would be
operating during the 1996-97 academic year. She further
testified that timetabling for the HSWP was particularly
complex because the courses ran for a variety of different
time periods rather than for a semesterized sixteen-week
period, and because many different cohorts of students went
through the program simultaneously. Students in that program
were generally employed in the field and came to the College
two days per week or in other varying patterns. There would
be about 200 students in the program at any given time, with
an annual total of approximately 800 to 900 students
comprising a total of between 30 and 40 cohorts. However,
6
this varied from year to year. Dr. Quartaro also told the
Board: "To represent the teaching loads accurately on the SWF,
we would need to have issued a new SWF every week or at least
every two or three weeks. I could have done so, but it was
not our practice. Our practice was to issue SWF's in advance
of the semester indicating probable teaching loads, even
though we knew that the exact configuration of courses and
duties would probably be somewhat different."
Ms. Brown also testified that SWF's were not often
accurate in relation to the HSWP because the program changed
rapidly. She testified that "in the spring when we did the
SWF's we didn't know what courses we were offering in the
fall, so we made a ~uess." She further testified that if the
SWF's were to be kept accurate, they would have to have been
redone "about every two weeks"
The PSWP was an initiative which had been discussed
for a number of years prior to its implementation. After the
Ministry of Health (Long-Term Care Division), the Ministry of
Education, and the Ontario Community Support Association
decided to jointly develop new provincial training standards
and a model curriculum for workers providing personal care and
--suppor~--~c~iccs~-pc~op~e--l~vin~ in ~u~-t~£ttt car~'Ta-c'i~t~e-S ...........
and in their homes, a group called the Training Resource Group
was established with representation from clients/consumers,
workers, employers, unions, educators, and related
professions. The Training Resource Group began meeting in
January of 1993, produced a number of draft documents that
7
were reviewed by external reviewers (including Ms. Brown and
Dr. Quartaro), and produced a detailed draft report in July of
1994.
The PSWP is a single training program that
consolidates and replaces the HCAP, which was established in
the late 1970's to train health care aides who provide basic
health care and other support services to clients in long term
care facilities such as nursing homes, and the HSWP, which was
established in the 1980's (as a successor to the Homemakers
Program) to train home support workers who provide basic
health care and other support services in clients' homes. In
describing the purpose of the initiative which ultimately led
to the establishment of that cOnsolidated program, Ms. Brown
stated:
There was feeling in the community that too many people
were entering people's homes to do different tasks. It
would be easier for the client if one person could do
more tasks. It would be cheaper for the government to
make more use of an unregulated worker, and there was
already a lot of cross-over between health care aides
and home support workers so it made sense to bring
those two together.
Personal Support Workers are trained to provide basic
health care and support services in long term care facilities
and in clients' homes. The range of services they provide
depends upon the individual needs of each person they support
and can include home management (such as shopping, house
cleaning, and meal preparation), personal care (such as
dressing, personal hygiene, mobility, and other routine
activities of living), family responsibilities (such as
routine care giving to children), and social and recreational
8
activities.
After the Training Resource Group produced the
aforementioned draft report, Personal Support Worker pilot
projects were run at seven institutions, including George
Brown College, to further explore the feasibility of
introducing that consolidated program. When Dr. Quartaro
became aware in the late fall of 1995 that the College had
been selected as one of the locations at which a PSWP pilot
project was to be run, she assigned Ms. Gazel to coordinate
the pilot project and to be the lead teacher in it. She
listed Ms. Gazel's duties and responsibilities regarding the
pilot project as follows during the course of her testimony:
- to organize the delivery of the pilot
- to be involved in student recruitment
- to come up with a plan for the delivery with herself
and other teachers; I expected her to be the lead
teacher, but I didn't expect her to teach all of it.
- to find a practicum location so the students could do
their institutional placement and to negotiate with
the institution which was a delicate matter; for
example, how many students would come, the day that
they would come, what work they would do, what the
College was expecting the students would learn while
they were there, what support and supervision we
would expect from the agency, and how the students
would be evaluated.
She also needed to maintain involvement with the people
administering the pilot project, and primarily would
need to be involved in the evaluation of the pilot at
thc cnd. That mcar~ -notin9 l~e~ uwn ubse~vat~ons and
also capturing the feedback from other teachers and
from students so that we could be as helpful to the
evaluator as possible.
She also gave the following testimony when asked why
she selected Ms. Gazel to perform those duties and
responsibilities:
Because Mary Gazel had a singularly appropriate
9
background for this. She had experience teaching the
HCAP and knew that program well, and through her work
coordinating the continuing education sector of that
program she had current knowledge of the field and the
agencies. She also had experience in the HSWP. She
had experience designing and developing curriculum.
She developed the Level III HSWP curriculum and had
also been instrumental in developing the Home Support
for Health Care Aides stream in the HSWP. That was
really the first piece of cross-over training that we'd
done in a formal way, and it was clear that if a PSWP
came into being we would be doing a lot of cross-over
training of that sort. Mary Gazel is also a diplomatic
person, and I thought she would be able to work well
with the agencies sending students and with the staff
where students did their placement, who might be very
apprehensive about these new students. The pilot
required a lot of expertise but it also required
something of a sales job - some ability to get people
on board about something new that was unsettling.
The first pilot project ran from December of 1995 to
March of 1996. With the assistance of the model curriculum
outline which accompanied the aforementioned draft report, Ms.
Gazel prepared the course outlines and other materials used to
teach that pilot project. Although other teachers delivered
parts of the program, she taught much of it herself, and also
carried out the other duties and responsibilities described
above.
Dr. Quartaro chose the faculty for the first pilot
project. The grievor was teaching in the HSWP at the time of
the first pilot project, but was not chosen to part~cip~t~ ~
that project. Dr. Quartaro provided the Board with the
following explanation of why she did not choose the grievor:
Because she was relatively new to the department and
still becoming accustomed to delivering the HSW
content, and I wanted people who were very comfortable
and experienced in delivering that content. She also
had very little community experience and that was the
key in the Home Support Worker Program. I wanted a
group of people who could work together well and
10
flexibly, so we could deliver the pilot project well
and also develop good feedback.
In November of 1996 the College was selected as the
sole site at which a second Home Support Worker pilot project
was to be run, commencing in February of 1997. Since she was
very pleased with the manner in which Ms. Gazel had
successfully run the first pilot project, Dr. Quartaro
assigned her to play a similar key role regarding the second
pilot project. She also gave her that assignment because she
anticipated that the PSWP would come into existence, and
wanted to draw upon her expertise and advice concerning how
best to move from having two quite different programs to
having a single program with three distinctly different
delivery models (i.e., one for full-time fees paying students,
another for continuing education students who would take the
courses on a part-time basis over a longer period of time, and
a third for persons employed in the community who would take
the courses in varying patterns, such as two days per week).
Late in the summer of 1997, the College was notified
that the HCAP and PSWP would be cancelled as of September 1,
1997, and that they would be replaced by the PSWP.
When Dr. Quartaro decided to give the grievor notice
of lay-off in February of 1996, she anticipated that the PSWP
would probably be introduced at some point in the future, but
she did not know when. During cross-examination, she
acknowledged that she wanted to be sure to retain Ms. Gazel
because she was the best person to be involved in implementing
the PSWP when it was approved. However, she also gave the
11
following testimony regarding that decision:
Q. As the Chair, you see your role as Selecting the
best for the College in terms of staff?
A. Certainly I see my role as selecting the best staff
for the College when we're in a hiring position.
That's not the position we were in. We were in a
bumping position. I was looking at the
qualifications of the people we had.
Q. But your decision enabled you to retain the best?
A. Yes it did.
Q. That is your objective as a Chair, to whenever
possible retain the best?
A. My objective as a Chair is to deliver high quality
programs. That includes having qualified staff.
During re-examination on that matter, Dr. Quartaro testified
that in bumping situations "the question is not whether the
person is the best person for the job, but whether they are
qualified for the job". She further testified that her
decision to lay off the grievor and retain Ms. Gazel was based
upon her conclusion that the grievor was not qualified to do
Ms. Gazel's job. That view was also shared by Ms. Brown.
The grievor received her initial health care training
during 1965-66 in the Nursing Assistant Program at Scarborough
General Hospital, from which she received a Nursing Assistant
Certificate. She then wrote provincial examinat~on~ ~o become
a Registered Nursing Assistant ("R.N.A."), and worked in that
capacity in the Hospital's paediatric unit from July 1966 to
February of 1970. From February of 1970 to March of 1972, Ms.
Waffle worked as an R.N.A. at a residence operated by the
Metropolitan Toronto Association for the Mentally Retarded,
where she obtained a Certificate in Residential Training,
12
developed knowledge and understanding of the needs of
developmentally delayed persons through work experience and
classroom training, and became involved in fund-raising and
activities related to the Special Olympics. During the period
from April of 1972 to May of 1978, she gained additional
paediatric nursing experience as well as adult nursing
experience by working as an R.N.A. at the Hospital for Sick
Children, Sunnybrook Health Science Centre, and Princess
Margaret Hospital. She became a Registered Nurse ("R.N.") in
1978, after completing the Diploma Nursing Program at George
Brown College. She engaged in full-time and part-time general
duty nursing on a variety of units at the Hospital for Sick
Children from July of 1978 to April of 1990. While working
there, she also began to take courses at York University
(Atkinson College) as a part-time student majoring in health
studies, and graduated with a Bachelor of Arts in the spring
of 1995 (through courses taken at York and Ryerson). She then
enrolled in a Master of Education program at Brock University,
and by the spring of 1996 had completed the first two courses
in that program.
From March of 1988 to June of 1990, the grievor was
cm~l-sycd as a part-time"teat-hei-~at the Re~iun~l Suhool for ......
Nursing Assistants operated by the Ministry of Colleges and
Universities. Although that position primarily involved
facilitating students' clinical training in long term care
facilities and acute care hospitals, it also involved some
classroom teaching of nursing theory when the grievor was
13
called upon to replace an absent teacher. During the
fall/winter semester of 1989-90, the grievor was a part-time
lead clinical teacher in Seneca College's Diploma Nursing
Program, providing students (who were in the fourth semester
of that six-semester program) with clinical learning
experiences in the paediatric units of York-Finch Hospital.
In September of 1990, the grievor commenced
employment at George Brown College as a full-time professor.
She was hired to teach in the Nursing Assistant Program
(currently known as the Practical Nursing Program). Students
entering that program must have graduated from Grade 12,
unless they are accepted into the program as mature students.
During the 1990-91 and 1991-92 academic years, she served as a
clinical teacher for students throughout that nine-month
program, and also taught classes in growth and development,
and in human behaviour. She developed and supervised a
preceptorship program, by liaising with nine hospital and
community health care facilities for the provision of diverse
pre-graduation experiences for students through preceptors
(i.e., staff members serving as ~uides to students performing
work at those hospitals and other facilities). She also
.......... l-iaiscd--w~th rep~es~L~Live~Uf~r~e-lve ~h-i£~-care agencies to
organize early childhood observational experiences for first
semester students. She participated in the development of a
combined nursing/nursing assistant entry level semester, and
served first as a member and then as the chair of the
committee responsible for developing the curriculum for that
14
combined semester. When that combined semester was
implemented in the fall of 1993, she was the only faculty
member from the Nursing Assistant Program assigned to teach in
the combined program.
The grievor taught at Centennial College during the
1994-95 academic year, after being laid off by George Brown
College and grieving that lay-off. (That grievance was
resolved by means of an exchange arrangement under which the
grievor was temporarily transferred to Centennial, where she
taught as a sessional while retaining her full-time status at
George Brown College.) While at Centennial College, she
taught in the first semester combined nursing program, and
also in the "flex program" upgrading R.N.A.'s to R.N.'s. In
addition to teaching an introductory communication course in a
classroom setting, she provided students with a variety of
clinical learning experiences. She was also involved in
curriculum development, interviewing stake-holders within
community agencies and incorporating their needs assessments
into a more versatile and community-oriented nursing program.
In June of 1994, Ms. Gazel was the successful
applicant for a posted position of professor in the HSWP.
her way to Centennial College (as a result of the first
lay-off notice and grievance referred to above).
After receiving another lay-off notice from George
Brown College in the spring of 1995, the grievor was
reassigned to the HSWP in the Faculty of Community Services, ~
15
where she taught Health and Personal Care - Level II (focusing
upon aging, chronic illness, and communicable diseases, as
well as hands-on personal care skills necessary for providing
support care in the home)); Advanced Personal Care - Level III
(which incorporated a review of the Level II content, and
further educated students in the methods necessary for
providing optimum care in the home); and The Client with
Cognitive Impairment - Level III (which facilitated the
development of student understanding of the challenges facing
Alzheimer clients and their families). Since many of the
students in the HSWP program were previously untrained,
non-professional health care providers whose first language
was not English and who came from diverse cultural
backgrounds, the grievor developed improved preparation and
organization skills, improved strategies in conflict
resolution, and adjusted teaching strategies and methods of
presentation to facilitate the students' learning and their
development of positive attitudes in caring for clients.
Teaching "The Client with Cognitive Impairment" also
necessitated research and additional preparation for teaching
course content with which the grievor was unfamiliar prior to
teaching at the Columbus Centre, where she found it necessary
to further adjust her teaching strategies, testing methods,
and evaluation for the particularly challenging group of
students she encountered there, with very weak English skills
and extremely limited knowledge and experience in Canadian
16
health care and culture.
By letter dated February 27, 1996, the College
(through Michael Cooke, the Academic Dean of the Faculty of
Community Services) gave the grievor formal notice that,
effective May 27, 1996, she was going to be laid off from the
College as a result of her position as a full-time professor
becoming redundant due to budget restraints. On March 14,
1996, Ms. Waffle filed the grievance which ultimately gave
rise to these proceedings.
In February of 1996 when the grievor received that
lay-off notice, Ms. Gazel was heavily involved in the first
PSW pilot project, performing the duties described above. She
was also the HCAP continuing education sector coordinator,
which was a role that she had been performing for several
years. She was also assisting in the coordination of the Home
Support for Health Care Aides stream of the HSWP, and
assisting Ms. Brown in coordinating other aspects of the HSWP
(because Ms. Brown was being treated for a serious illness
which necessitated a substantial reduction in her teaching
hours, and in the stress and time involved in performing her
duties as a coordinator). There was no formalized division of
__ du%i~_ili~th~ lattmr rol~, and~--M.~-~zct did-to-assist
Ms. Brown changed from time to time depending on what there
was to be done and upon how ill Ms. Brown was at various
times. Ms. Gazel did most of the external committee work and
also handled day to day problem solving regarding student
issues and agency issues when Ms. Brown was not at the
17
College. Unlike students in many of the College's other
programs who enrolled themselves in a program and paid tuition
fees for it, students in the HSWP were employed by community
agencies through funding provided by the government, which
also provided the students with a daily living allowance. The
coordinator's duties for that program involved liaising with
the community in various ways including representing the
College on community committees; discussing student selection,
student progress, and other student issues with community
agencies; and acting as a resource person for community
agencies. Those duties also included meeting with the
Ministry of Health's liaison person from time to time.
Ms. Gazel also vetted the health care aide
certificates held by HCA's who wished to upgrade to HSW's
through the Home Support for Health Care Aides stream of the
HSWP. This vetting had been performed by Ms. Gazel for a
number of years, and was necessary to determine whether the
pro,rams which they had completed at other institutions
(including many located in other parts of the world) were
equivalent to the College's HCAP. Although Ms. Brown did some
of that vetting, even before her illness necessitated her
-sccki-ng-add~lional- as~i~L~nu~ £~S. Gazel in cO~rdih~in9
the HSWP she often took questionable HCA certificates to Ms.
Gazel for vetting because Ms. Gazel had more experience with
that than she did. -
Article 27.06 of the Collective Agreement provides,
in part, as follows:
18
When the College decides to lay off or to reduce
the number of full-time employees who have completed
the probationary period or transfer involuntarily
full-time employees who have completed the probationary
period to another position from that previously held as
a result of such lay-off or reduction of employees, the
following placement and displacement provisions shall
apply to full-time employees so affected. Where an
employee has the competence, skill and experience to
fulfill the requirements of the full-time position
concerned, seniority shall apply consistent with the
following:
(i) An employee will be reassigned 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.
(ii) Failing placement under 27.06 (i), such
employee shall be reassigned to displace
another full-time employee in the same
classification provided that:
(a) the displacing employee has the
competence, skill and experience to
fulfill the requirements of the position
concerned;
(b) the employee being displaced has lesser
seniority with the College.
One of the primary matters in dispute between the
parties is the issue of what constitutes the incumbent's
"position" for the purpose of determining whether the grievor
has the "competence, skill and experience to fulfill the
requirements of the position concerned", as required by
Article 27.06(ii) (a). In his submissions addressing that
issue, Union counsel contended that to determine the position
to be displaced, the Board should consider the duties and
responsibilities assigned to the incumbent as of the date the
grievor's .lay-off became effective (i.e., May 27, 1996), and
19
should exclude from consideration any work which was assigned
to the incumbent after that date. (As indicated below, he
also contended that the incumbent's continuing education
coordinator duties should be excluded from consideration.) He
further submitted that the SWF issued to the incumbent in
early May of 1996 for the fall semester of 1996 is the best
evidence of the duties and responsibilities which had been
assigned to the incumbent as of that time.
Although Union counsel anticipated that counsel for
the College would argue that the Board should consider all of
the duties which the incumbent actually performed during the
1996-97 academic year regardless of when they were assigned to
her, the argument which she actually advanced was that the
Board should follow the approach adopted by arbitrator Carter
in St. Clair College and OPSEU, (grievance of K. Barei, OPSEU
File No. 88C427 - preliminary award dated May 15, 1989
(reported in 6 L.A.C. (4th) 442); (unreported) final award
dated October 17, 1989), and determine the core pattern of
duties and responsibilities performed by the incumbent during
the course of her employment. She also referred the Board to
a number of subsequent awards and submitted that arbitrator
Carte-r-~-s-~pp£~ac~=~1~ ~~red by many other
arbitrators without disagreement concerning his description of
the position to be analysed.
In replying to that argument, Union counsel submitted
that the approach adopted by arbitrator Carter has been
rejected in a number of subsequent cases and is no longer the
20
law. He contended that the .caselaw says that the position to
be considered for displacement purposes is the position as of
the date the lay-off becomes effective, and reiterated that
the aforementioned SWF is the closest evidence of assignments
for that purpose.
In the two aforementioned St. Clair College awards, a
board chaired by arbitrator Carter was called upon to
interpret what was then Article 8.05, the material portion of
which was substantially similar to Article 27.06(ii), as
quoted above. In order to expedite the hearing of that
matter, it was decided that the board should issue a
preliminary award setting out their understanding of the
intent and meaning of that provision, and then proceed to deal
with the merits of the grievance to determine if there had
been a breach. The board's unanimous preliminary award (dated
May 15, 1989) includes the following observations (at pages
6-7) regarding what constitutes "the position" for the
purposes of that provision:
... As we read this language [Article 8.05] it
expresses an intention that the competence, skill, and
experience of the displacing employee be measured
against the benchmark of the content of the position
being claimed. The problem, however, is to define the
content of that position in an objective manner so as
to-"~C~ih ~nb~h~--I~6~f~-u~o~ a balance between
respect for seniority and recognition that an employer
is not required to re-organize its work assignments to
accormmodate the particular qualifications of a more
senior employee. In situations where job content is
not well defined, as in this case, this task can pose
considerable difficulties.
In the board's view, what one must do in this kind
of case is to determine the core pattern of duties and
responsibilities performed by an incumbent teacher
during the course of her employment. It is this core
21
pattern of duties that forms the content, of the
position against which the competence, skill, and
experience of a displacing employee must be measured.
If it can be established that a displacing employee is
capable of performing the core pattern of duties and
responsibilities being performed by an incumbent with
less seniority, then under the terms of article 8.05
this incumbent would be displaced.·
In determining this core pattern of duties and
responsibilities, however, it is not sufficient to take
a snapshot of the duties and responsibilities of the
incumbent at just one point in time. Not only may some
of the duties change from semester to semester, but
some may also be peripheral to the central core of
duties. Rather, what we must do is examine the actual
work assignments given to an incumbent over an extended
period of time to identify the basic pattern of duties
and responsibilities performed by that incumbent. It
is this core pattern of duties that make up the
"position" and provides an objective standard against
which to measure the competence, skill, and experience
of the displacing employee.
In the final award (dated October 17, 1989),
arbitrator Carter summarized the conclusions reached in the
preliminary award as follows, at page 3:
In an earlier award we reached the conclusion that
this provision, which had been amended in the last
round of negotiations, no longer contemplates a
competition between the displacing employee and the
person presently holding the position. Rather than
comparing the competence, skill, and experience of
these two employees, it is now necessary that the
qualifications of the displacing employee be measured
against the content of the position being claimed.
This exercise, however, is by no means easy since the
content of the job must now be determined in an
objective manner and not simply by reference to the
qu_al~f~c~t~ons~ _khe--~cu__~_. What.m~e--donc,
therefore, is to identify the core pattern of duties
and responsibilities performed by an incumbent teacher
during the course of her employment.
Later in that award, arbitrator Carter added the
following refinement to that approach (at page 4):
In identifying this pattern, the more appropriate
approach, in our view, is to confine our consideration
to those courses that had been assigned to the
22
incumbent prior to the lay-off of the grievor. It is
at the point of lay-off that the collective agreement
requires the employer to put its mind to whether a
displacing employee has the competence, skill, and
experience to fulfill the requirements of the position.
At this time, absent any precise job description, past
assignments are the only concrete evidence of the
responsibilities that define the position. While the
College may have contemplated other assignments in the
future, such future intentions are hardly an objective
measure of what constitutes the position. Rather what
must be looked to is the past pattern of assignments in
order to establish an objective benchmark against which
to measure the grievor's qualifications.
The propriety of excluding from consideration future
assignments which are made after the date of lay-off has been
confirmed in a number of subsequent cases. See, for example,
Niagara Colleqe and OPSEU (grievance of K.W. Martin, OPSEU
File No. 88C730, award dated October 31, 1989) in which
arbitrator H.D. Brown wrote, in part, as follows (at page 6):
The question then is what meaning is to be given
to "position" for the purposes of the application of
Article 8.05(b). As the time for determination of the
grievor's skill is as of the date of lay-off, it is the
position held by the employee whom the grievor seeks to
displace which is at issue. His position at that time
is made up of a number of courses of teaching for which
he is responsible and for which he has been assigned by
the College as indicated in the SWF's. Courses of
instruction which he may be subsequently required to
teach are not then part of the position, although it is
expected that as a full time Teaching Master, he will
be required to teach for the full academic year.
Nonetheless, his position for the purposes of the
lay-off provisions is, we find, that which covers his
.tcaching-assignments ~ of t~[~--'~'f-'-I~y-o~.
After quoting from pages 6 and 7 of the arbitrator Carter's
preliminary award in St. Clair College, and describing the
reference which counsel for St. Clair College had made in that
case to it being possible "to determine the content of the
position based upon past experience, the award continued as
23
follows (at pages 7-8):
That reference and the conclusion reached by the Board
in that matter is significant in that it indicates that
what is to be determined is the job content of the
incumbent as at the date of lay-off together with the
consideration of what had been the past requirements of
the position.
The Carter award did not define the position in
terms of future teaching assignments which would not be
set by the College at that time for the entire academic
year. If that was to be the criteria, it would be
possible to defeat the seniority rights of the laid-off
employee by structuring future courses in a manner
which would effectively prevent that employee from
exercising the displacement rights under Article
8.05 (b) .... We conclude that this Article requires
the grievor to have the requisite competence, skill and
experience as at the time of lay-off. The "position"
at that time is that which the incumbent fills with his
responsibilities for teaching assignments at that
time ....
In that case, the board was only called upon to determine
whether the grievor had to show that he had the ability to
teach the incumbent's courses for both the fall and winter
terms of the 1988-89 academic year, or for merely the fall
term, as the College did not take the position that the
position also included courses taught by the incumbent in the
past.
In Niagara College and 0PSEU (~rievance of William
Mymryk, OPSEU File Nos. 88B943, 88B871, 88C149 & 88C152, award
---dat-ed--N~=mbcr--2~-, t989~at--pa~cs--3~-,~rbiL~L~-D~vlin
expressed agreement with the approach set forth by arbitrator
Carter in the aforementioned preliminary award,, subject to the
exclusion of future teaching assignments (which, as noted
above, is a limitation which was articulated by arbitrator
Carter himself in the final award dated October 17, 1989):
24
... In this case, the evidence indicates that when the
College made its decision to lay off the Grievor, the
teaching assignments for the winter term beginning in
January of 1989 had not been made. This was also true
when the Grievor received his notice of layoff on July
25, 1988 and when he subsequently filed his grievance
in early August ....
If this Board were now to consider [the
incumbent's] position with reference to his teachin9
assignments during the winter term of 1989, we would,
in effect be altering the nature of the position
considered both by the College in making its layoff
decision and by the Grievor at the time of the filing
of his grievance. This, in our view, could not have
been the intention of the parties and, for this reason,
we are not prepared to consider the courses taught by
[the incumbent] in the winter term of 1989 as relevant
to the position sought by the Grievor.
In St. Clair College and Ontario Public Service
Employees Union, May 15, 1988 (Carter (unreported)),
the Board was called upon to consider the meaning of
the term "position" in Article 8.05. The board
concluded that a "position" consists of. the core duties
and responsibilities of the incumbent over a
representative period of his employment. Subject to
the qualification that this cannot extend to future
teaching assignments for the reasons set out above, we
agree that this is an appropriate standard against
which to measure the skill, competence and experience
of the Grievor.
In this case, although the College introduced
SWF's for [the incumbent] dating back to the fall of
1984, the evidence and argument of both parties were
directed to the courses taught by [the incumbent] in
the fall of 1988. In the absence of any submission to
the contrary, we find that these courses were
representative of the core duties and responsibilities
of his position.
other cases have also 'cOnfined their consideration to
the incumbent's duties and responsibilities in the academic
term in which the lay-off takes place. After reviewing the
cases referred to above, arbitrator Burkett came to following
conclusion in Fanshawe College and OPSEU (grievance of Leslie
Dobos, OPSEU File No. 96F846, award dated June 4, 1998), at
25
pages 30-31:
When reference is had to the foregoing
jurisprudence under this collective agreement we are
driven to the conclusion, for the same reasons
articulated by arbitrators Brown and Devlin, that the
"position" in respect of which a grievor must establish
his/her ability under article 27.06 is the position
occupied by the junior incumbent, comprised of the
courses being taught during the term that the layoff is
to be effective. This is not a surprising result given
the competing interests that are at stake; the
preference given to senior employees, for continued
active employment, on the one hand, and, on the other
hand, the College's need to have its course offerings
taught by qualified professors. In the face of these
competing interests it would make little sense to have
the senior employee lald off to the street if he/she is
capable of teaching the bundle of courses that the
College has assigned to a junior employee at the time
of the proposed layoff. Indeed, such a result, while
it would not advance the interest of the College in
having its course offering taught by qualified
individuals, would undermine seniority rights. We
reiterate that under this collective agreement,
seniority operates to permit the senior employee to
displace the junior employee in a layoff situation
where the senior employee can establish that he/she has
the "competence, skill and experience" to teach the
bundle of courses assigned to the junior employee
during the term that the layoff is to take effect.
In Canadore College and OPSEU (grievance of J.P.
Condon, OPSEU File No. 97D939, award dated November 26, 1998),
arbitrator Swan made the following observations at pages 9-10:~
There has been some debate in the jurisprudence as
to precisely which bundle of duties is to be used as
the template against which an employee wishing to
displace must be measured. In Re St. Clair Colleqe and
........ O~L~iu P--ul~lic Service ~ployees Unlon~-i~rei), 1989 6
L.A.C. (4th) 442 ('Carter), the template proposed was
"the core pattern of duties and responsibilities
performed by an incumbent teacher during the course of
her employment". In later cases, such as Re Fanshawe
College and Ontario Public Service Employees Union
(Dobos), unreported, June 4, 1998 (Burkett) and Re
George Brown College and Ontario Public Service
Employees UniOn (McAuley), unreported, July 24, 1998,
(Mitchnick), a much narrower "snap-shot" template is
proposed, the position of the incumbent as it is
comprised in the academic term in which the lay-off is
26
to take place.
Arbitrator Swan found it unnecessary to enter into
that debate, since the evidence in the Canadore case did not
disclose any significant difference between the incumbent's
anticipated assignment in the academic term in which the
grievor's lay-off was to take place, and the pattern of the
incumbent's assignments over the preceding four years during
which the program had been in operation. However, he did find
it "reasonable to exclude from consideration the special
start-up functions performed by [the incumbent]" (including
those pertaining to curriculum development and organization of
an advisory council), because "[t]hose functions were spent by
the time of the grievor's lay-off, and the only issue [was]
whether the grievor was qualified to be left in charge of the
maintenance of the structure already established."
In determining the bundle of duties to be used as the
template against which the grievor in the instant case is to
be measured, it is appropriate to bear in mind the manner in
which Article 27.06 operates. Displacement rights and
obligations under that provision are exercised following a
decision by the College to lay off but prior to receipt of
w~ttenno-~%ce~f ]~-y~-of-f-~-a-nd--an-y--c-~mpl~i-nt--with--rcspcct to
the exercise of those rights must be made within twenty days
of receipt of written notice of lay.off: see Fanshawe ColleGe
and OPSEU, (grievance of Shelly Masse, OPSEU File No. 96A080,
unreported award dated June 25, 1998), in which arbitrator
Burkett reached those conclusions after carefully analyzing
27
the language and structure of Article 26.07. Article 27.08 A
of the Agreement requires the grieving employee to state in
the grievance the positions occupied by full-time and
non-full-time employees whom the employee claims entitlement
to displace. That has been construed to be a mandatory
substantive requirement, with failure by a grievor to comply
being fatal to the success of the grievance: see Seneca
College and OPSEU (grievance of Danny Vincent, unreported
award dated February 6, 1998, H.D. Brown). If the grievance
is referred to arbitration, Article 27.08 B requires that the
written referral to arbitration specify two full-time
positions (or positions occupied by two or more partial-load
or part-time employees whose duties in sum will form one
full-time position). However, the positions specified in the
referral to arbitration must be selected "from the positions
originally designated in 27.08 A". Thus, to comply with the
requirements mandated by those provisions, a grievor must
direct his or her mind at the time s/he receives notice of
lay-off to his or her competence, skill and experience to
fulfill the requirements of the position(s) held by the
incumbent(s) whom the grievor seeks to displace.
........................................ t-f- -at~--the'-t-ime'~Ch-a u-a~' ~mPlO-y~- -i-S-- ~i~- ~6'~'i'~'- ~ ......................
lay-off a SWF has been issued setting forth the duties and
responsibilities of the incumbent in the term that the lay-off
is to be effective, it will generally be of considerable
assistance to a grievor, and to an arbitration board, in
determining the duties and responsibilities of the position.
28
However, in the instant case the incumbent's SWF for the 1996
fall semester is of little assistance for two reasons.
Firstly, it did not come into existence until May of 1996,
more than two months after the grievor received her notice of
lay-off and filed her grievance. Thus, the grievor could not
have relied upon it in determining what position(s) to name in
her grievance. Secondly, it is clear from the totality of the
evidence that the frequently changing nature of the HSWP
program often rendered SWF's created in the spring inaccurate
in respect of what actually occurred in the fall, and that
keeping them accurate would have necessitated issuing new
SWF's every two or three weeks. Consequently, the SWF, even
if it had been available at the time that notice of lay-off
was given to the grievor, would have been of little assistance
in attempting to predict what the incumbent's duties and
responsibilities would be during the term in which the lay-off
was to be effective.
Having carefully considered the jurisprudence
summarized above, we have concluded that in a situation of
constant flux and great uncertainty in which job content is
not well defined, in which SWF's were unavailable at the time
grievance was filed, and in which the SWF subsequently
prepared would not be a reliable indicator of what the
incumbent's duties and responsibilities would likely be in the
semester in which the lay-off was to be effective due to the
frequently changing nature of the HSWP program, the approach
29
applied by arbitrator Carter is preferable to the more narrow
approach which has been adopted in some of the subsequent
cases, as it is likely to provide a more accurate prediction
of what the incumbent's duties and responsibilities will be in
the semester in which the lay-off is to be effective and,
accordingly, of what duties and responsibilities the grievor
will likely be called upon to perform in that semester if she
bumps the incumbent.
Consequently, we have concluded that for the purposes
of the instant case, the incumbent's position consists of the
core pattern of duties and responsibilities performed by the
incumbent during the course of her employment up to the time
at which the grievor received notice of lay-off, with
particular emphasis upon the duties and responsibilities that
she performed after June of 1994 (when, as noted above, Ms.
Gazel was the successful applicant for a posted position of
professor in the HSWP). That core pattern includes teaching a
variety of courses in the HSWP, including courses in the Home
Support for Health Care Aide stream of that program;
developing and implementing new courses and program streams,
as exemplified by Home Support for Health Care Aides, Home
teaching in external projects such as the Columbus Centre
Project; and performing various HSWP coordination functions.
It is well established in the arbitral jurisprudence
regarding Article 27.06 that a grievor seeking to displace an
incumbent must establish that s/he is immediately qualified to
30
perform the requirements of the position. See, for example,
Fanshawe Colleqe and OPSEU (grievance of Leslie Dobos), supra,
and Niagara College and OPSEU (grievance of K.W. Martin),
supra. Article 27.06 does not provide for a grievor to be
retrained or re-qualified before taking up the duties of the
position. However, a grievor need not establish that s/he has
previously taught each of the courses taught by the incumbent,
as it is open to a grievor who lacks that specific teaching
experience to nevertheless demonstrate her or his skill,
competence, and experience by establishing that s/he has
sufficient knowledge of the subject matter to fulfill the
requirements of the position: see Niagara College and OPSEU
(grievance of William Mymryk), supra, at pages 10-11.
Moreover, the fact that the incumbent is better qualified to
perform the position does not prevent a qualified senior
employee from bumping into the position pursuant to Article
27.06. As noted by arbitrator Swan in Canadore College and
OPSEU (grievance of J.P. Condon), supra, at page 10:
... it is not the ideal which the College would seek at
the hiring stage that is the test of competence, skill
and experience under clause 27.06, nor is it even the
standard set by a particularly able incumbent. The
test is whether the displaced employee can "fulfill the
requirements of the position concerned". No doubt,
....................... givcn-thc--juxtaposition-o~hc--wordingv--..-it--was-int~nded
that the displacing employee would fulfill those
requirements competently and skillfully, at a level of
quality which would reasonably permit the delivery of
the program. It would not be enough merely to be able
to go through the motions of performing the duties of
the position, but it is not required that those duties
be performed at a superior level established by a
particularly qualified incumbent.
31
The grievor is an experienced and dedicated teacher
who obviously has a deep interest in education. She has a
solid nursing background, having trained and worked at a
number of highly reputable hospitals and other institutions.
She has also availed herself of continuing education
opportunities by earning a Bachelor of Arts degree through
courses taken at York University and Ryerson, and by pursuing
graduate studies in education at Brock University. While some
of those courses (such as Psychology in the Workplace, and The
Child in Society: A History of Childhood and Child Welfare)
are at most tangentially relevant to the issue of her
competence to fulfill the requirements of Ms. Gazel's
position, others (such as Psychology of Aging and Human
Development) are more directly germane. Although much of the
grievor's teaching experience involves clinical education in a
nursing context, she has also taught classes in growth,
development, and human behaviour in that context. Her
teaching experience which is most directly relevant in the
instant case is that which occurred during the 1995-96
academic year, in which she taught the following courses in
the HSWP: Health and Personal Care - Level II (focusing upon
agi~g~-ch-roni-c--i-ll~css~ and-~commun-ieablc-disc~scs¥--as--wct~-as
hands-on personal care skills necessary for providing support
care in the home); Advanced Personal Care - Level III (which
incorporated a review of the Level II content, and further
educated students in the methods necessary for providing
optimum care in the~home); and The Client with Cognitive
32
Impairment - Level III (which facilitated the development of
student understanding of the challenges facing Alzheimer
clients and their families). As noted above, her workload
during that academic year also included teaching at the
Columbus Centre.
We are satisfied that the grievor's teaching
experience, in combination with her previous education and
professional experience, gave her the competence, skill, and
experience to perform part of the core pattern of duties and
responsibilities performed by the incumbent, in that it
enabled her to teach most if not all of the courses taught by
the incumbent in the HSWP. However, we are not persuaded that
the grievor had the competence, skill, and experience
necessary to perform other key components of that core
pattern, including the development and implementation of new
courses and program streams of the type exemplified by Home
Support for Health Care Aides, Home Support Level III, and the
PSWP pilot project, and responding on an ad hoc basis to
requests involving the planning and organization of external
training projects.
If the incumbent's involvement in such matters had
.................. ~._!imi~d.._t~__.an_isolated_ins.t~n~,..~,ch_as~_the._spec~.a! ......................
start-up functions performed by the incumbent in the Canadore
College case, we might well have been inclined to adopt the
approach applied by arbitrator Swan of excluding it from
consideration on the basis that it was spent by the time of
the grievor's lay-off. However, the evidence in the instant
33
case clearly establishes that the incumbent had a regular and
material involvement in such matters during the course of her
employment, and that her involvement therein was likely to
continue in the semester in which the grievor's lay-off became
effective. Although the grievor had previously been involved
in some curriculum and program development work (such as
participating in the development of a combined nursing/nursing
assistant entry level semester, and developing the
aforementioned preceptorship program), that work was performed
in the context of nursing education. Performing the new
course and program stream development and implentation work of
the type that the incumbent was regularly called upon to
perform (as exemplified by that involving Home Support for
Health Care Aides, Home Support Level III, and the PSWP pilot
project), and responding on an ad hoc basis to requests
involving the planning and organization of external training
projects (such as the Columbus Centre Project) required a
substantially greater depth of knowledge regarding the Health
Care Aide and Home Support Worker Programs than the grievor
possessed. It also required a broader range of contacts in
the community served by those programs, program streams, and
projects; 'a hi~he~-de~le~-o£ ~redibiIity-ih-'that"C~0~mmuh~t~ ................
and greater diplomatic skills. While we have no doubt that
Ms. Waffle's subjective, statements of competence are based
upon her sincerely held belief that she is qualified to
perform Ms. Gazel's position, they do not discharge the burden
of proof which lies upon the Union in these proceedings.
34
As noted above, counsel for the Union contended that
the incumbent's coordinator duties for the continuing
education sector of the HCAP should be excluded from
consideration by virtue of Article 27.16, which provides:
Extension and Continuing Education programs and courses
which are not included in the regular assignment of
full-time employees are excluded from the application
of this Article for all purposes.
In support of that contention, he referred the Board to
Fanshawe College and OPSEU (union grievance re Article 4,
unreported award dated June 28, 1996, H.D. Brown). College
counsel, on the other hand, contended that Article 27.16 deals
with the matter of whether a faculty member can acquire
seniority based on continuing education teaching, and was not
intended to exclude consideration of continuing education
courses and duties in displacement situations.
In the circumstances of the instant case we find it
unnecessary to decide that issue, since even if that aspect of
the incumbent's coordination duties is excluded from
consideration, it does not change the fact that the grievor
lacks the competence, skill and experience needed to perform
significant aspects of the core pattern of duties and
responsibilities performed by the incumbent, including the
other coordination functions described above.
For the foregoing reasons, we have concluded that the
grievance cannot succeed on the basis of the first component
described by counsel for the Union in his opening statement
(i.e., the allegation that the grievor should not have been
laid off because there is a junior employee performing work
35
which the grievor is qualified to perform). As indicated at
the co~Lencement of this award, the Board ruled on the first
day of hearing that the "anticipatory breach" issue referred
to by Union counsel as the third component of the grievance
was not within the scope of the grievance and would not be
heard by the Board. However, we reserved our ruling on the
arbitrability of issue #2 (i.e., the allegation that the
College's obligation to give preference to continuation of
full-time positions over partial-load, part-time, or sessional
positions (under Article 27.05 of the Collective Agreement)
was not met with respect to the staffing plan for the 1996-97
academic year), on the understanding that if the Union was
unsuccessful on issue #1, we would hear further submissions
and, if necessary, evidence, regarding the arbitrability of
issue #2. Accordingly, we shall remain seised of the
grievance for the purpose of dealing with that aspect of the
case in the event that the Union decides to pursue it.
DATED at Burlington, Ontario this 24th day of December, 1999.
Robert D. Howe
Ch a i r
I concur.
"Rene St. Onge"
College Nominee
36
IN THE MATTER OF AN ARBITRATION BETWEEN:
GEORGE BROWN COLLEGE
and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
Grievance of Georges Waffle (~96D737)
DISSENT
I have reviewed the majority Award ir, this matter and regrettably must dissent from it. Thc
Award does however fitirly summarize the detailed evidence which we heard over 11 days of
hearings, (There were three further days devoted, to preliminary submissions and final argument.)
My disagreement is with the legal test the majority have used in determining what in lhct the
incumbent's position consisted of, and in the ultimate conclusions as to the grievor's
qualifications.
The Board was called upon to consider thc jurisprudence m~d rule over ',,,'hat exactly the ,
incumbent's position properly consisted of. For the purposes of this particular ease, the
Chairperson has preferred the approach ol'Arbitrator Carter in St. Clair College 0May/89)
{A¢.gr~, namely that one should consider the core pattern of duties and responsibilities performed
by the incumbent teacher during the course of her employment.
With thc greatest of respect, I disagree with that approach and prefer the approach of Arbitrators
Bro_w. rt, [levlMand.Jtnrkett-(-Niag?ra-Cotleoe(OetJg9);-NiagaraC~'fllege(-Now./~9)m~d Fanshawe .......................
(;ollege(June/98)). In all three cases, the test they applied in determining the appropriate position
was to consider the bundle or courses that the College had assigned to the junior employee at the
time of the proposed layoff.
As noted in the majority Awm'd however, all ofthe above awards appear to agTee that it is not
appropriate for a Board to base its decision on what the incumbent actually did after the fact,
Page 2
after the grievor was laid offand w~ r~quired to select the appropriate position for displacemont.
Arbitrator Brown sets out why looking at what happens after the fact can lead to an un{air result:
"The Carter award did not define thc position in terms oi'iilture teaching
assignments which would not bc set by the College at that time for the entire
academic year. If that was to be the criteria, it would be possible to defeat the
seniority rights of tbs laid-offemployee by struct-aring future courses in a manner
which would cftbctively prevent that employee from ~xercising the displacement
rights under Article 8.05(b)."
Applying this principle to our case, we must remember that the grlevor doesn't have the luxury.
of wai'dag to see what happena after the fact. She must pick her position for bumping purposes
within 20 days of receipt of notice of layoff. It would be manifestly unfidr if a position which she
knew she could per£orm at the time were ~ansformexl into a position which was out of her reach
whether by conscious manipulation by the Employer or even by the passage of intc~'ening
events. For this reason, the fact that the 2"a Pilot Project actually took place during the 96/97
academic year should not be of any ~sistance to the College.
The other point about the Carter Award which should be stressed is that he found that one should
look at the core duties perfomaed by the incumbent, and not sweep in every dut3' the incumbent
has performed in the past or else we run the risk of turning the test into a competition between
the grievor and the incumbent.
The Burkett Award (supra) is in my view the most relevant to our case bee, au.se in that ca.~ the
Employer was in fact relying on the Carter approach, and pr~opo~sin~g t~o_ br~g in the who!e__pas_t ....................
history, of the incumbent's employment. The positions of the Panics were there/i.~re similar to
those before us in this ease.
Arbitrator Burkett concluded as follows:
"When reference is had to the foregoing jurisprudence under this collective
agreement we are driven to the conclusion, for the same reasons articulaed b2
Page 3
arbitrators Brown and Dcvlim that thc "~sition" in respect of which a g~icvor
must establish his/her ability under article 27.06 is the position occupied by the
junior incumbent, comprised of'the courses being taught during thc term that thc
layoff.is to be effective. This is not a surprising result given the competing
interests that are at stake; the preference given to senior employees for continued
active employment on the one hand, and, on the other hand, the College's need to
have its course offerings taught by qualified professors. In thc face of these
competing interest~ it would make little sense to have the senior employee laid off'
to the street if he/she is capable of teaching thc bundle of courses that the College
has assigned to a junior professor at the time of the proposed layoff. Indeed such a
result, while it would not advance the interest of the College in having its course
offering taught by qualified individuals, would undermine seniority rights. We
reiterate that under this collective agreement, seniorit7 operates to permit the
senior employee to displace the junior employee in a layoff situation where the
senior employee can establish that be/she has thc "competence, skill and
experience" to teach the bundle of courses assigned to the junior employee during
the term that the layoff is to take effect."
I would have reached a similar conclusion in figs case. The College laid offMs. Waffle, and she
asserted a right at that time to btmlp the incumb¢llt effective thc fall/96 term. It is at thai point
that she is clai~nlng that she can carry out the duties o£the incumbent. It is not necessary that she
be able to perform all the duties carried out by the incumbent in the past over several' years of
employment.
Indeed in this case the incumbent had been in more than one position and had succ~ss£ully
applied for a teaching position in thc HSW Program only in 1994. Moreover, most of thc course
development and program dev~lopment duties referred to had already been complctext prior to
the spring of 1996. It is true that during that term (Spring/96), Ms. G~elle was coordinating and
teaching in th~ !". pSW_ pilot proj~ b_ut..that too_ w~as_, completedby thc time o£the ~icvor's ............
layoff:
At the time of'the layoff', nobody kn~v if or when there would bca 2~ Pilot Project. As of May,
1996, based on the Minutes of the Home Support Advisory Committee, it was clear that there
was no information on the future status of the PSW Program.
Page 4
The college's best assessment of what the incumbent would be doing in the fall of 1996 was thc
SWF which is described in full by the chairperson at Page 4 of thc Award, and which largely
consists of courses which Ms. Waffle herself hud taught during the 1995/96 academic year.
Chairperson rejects the approach of relying on the SWF tbr two reasons. First, he points out that
the SWF itself was only dated and signed after the grievance was fried (but still betbre the
grievor was actually laid off).
Ia my view, this distinction should be of little importance. Although this document may not have
been put to paper and signed as of February/96 ii is still the best evidence of what the
incumbent's intended position was going to be. There was for example no earlier documenl that
either pm'fy pointed to which conflicted with the above SWF.
Secondly the Chair rejects the use of the SWF because of the changing nature of the program ~md
the ['act that SWF's often turned out to be inaccurate. But, based on the evidence, even in this
program, the SWF's were still a useful h~dicator. Ms. Quartaro testified that they were the
College's prediction of what was generally probable. She agreed that it would have been more
proper of the College to issue new SWF's to r~flect changes. But I don't agree that the c 'hanges
were so &amstic ss to make the SWF's of no use.
In my view, this decision, even though tl~ chai~rson restricts it to the circumstances of this
ca.~, puts the griever in a ceD, difficult position. She still must elect the appropriate position tbr
bumping within 20 days ofrecei~t o£notice of layoff. She would normally do so based on Mr
best assessment of the incumbent's courses in the following term. It is unlikely that she will also
............. -~ ........ ; ............................... .- ............... · .................................................................
exmnme thc incumbent's past history, let alone determine which tasks constitute the core duties,
even over a two or three year period, Moreover how is the grievor ~o know if this is an
appropriate case for the Rrowu/Devlin/B~rkett approach, which is the normal approach, or if
she must also meet the requirements of the Carter approach?
I also am troubled by the maimer in which the ~ approach l~as been applied in this case. One
must be very carci'ul ir~ assessing what in fa~t the cote duties of the incurabent consist of. In this
ease, the Chairporson appears to sweep in most of the dttties the incumbent performed in the pas(
into her core duties. In my view., the core duties of Ms. Gazelle more properly consisted of
teaehi)~g courses in tho HSW Program, with some complementary and administrative functions.
Had the 2"~ Pilot Project not taken place when it did, she may have in fact had very little in [he
way of program development type functions during [he 1996/97 academic year. In ~ct, thc
May/96 SWF makes no reference to any program development work.
Finally on the chairperson's conclusions as to the grievor's qualification to perform the work of
the incumbent, 1 would agree that she was qualified to perform the teaching functions. I would
also have found however that she was qualified to carry out the administrative and proka'am and
curricu)um development functions as well. As the chair has set out, she had performed such
functions over the course of her employment at G~rge Brova~ Coll~ge and had even been thc
chairperson of the curriculum committee with respect to the combined nursing/nursing assistant
entry level semester. The evidence was that it is normal lbr faculty membe,~ to be involved in.
curriculum development functions, and the grievor was no exception.
In my view, the grievor was qualified to carry out such functions in the IISW Program based on
her years of teaching experience generally and including her recent experience in the very same
department. She may not have been able to perform these functions as well as thc incumbent, but
of course that is not the test.
In my view she had the competence, skill' and experience to fulfil the requirements of the position
concerned, and I would have allowed the grievance on this aspect of the case on that basis.
Page 6
DA~I~ AT TORONTO, this 24r" day of'December, 1999.
Larry Robbins, ~D~nion Nomin'~-.---.~ -