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HomeMy WebLinkAboutWylie 89-03-31 IN THE MATTER OF AN ARBITRATION BETWEEN: NIAGARA COLLEGE OF APPLIED ARTS AND TECHNOLOGY - and- ONTARIO PUBLIC SERVICE EMPLOYEES UNION Grievance 0f'A6ne,.iWQi{~ BOARD OF ARBITRATION: IJANE H. DEVLIN CHAIRMAN RENE ST. ONGE COLLEGE NOMINEE SANDRA NICHOLSON UNION NOMINEE Appearances for the College Nancy A. Eber Glenn Pevere Appearances'for the union Mary Anne Kuntz Anne Wylie John Birnie Joan Hastings In her grievance which is dated March 1, 1988, Anne Wylie claims that she was incorrectly placed at Step 2 rather than at Step 5 of the salary grid when she commenced her employment as a Teaching Master with the College in September of 1986. In ~articular, the Grievor says that the College failed to give her appropriate credit for both her occupational experience and her educational qualifications. The Grievor also claims that the College failed to make the proper salary adjustment when she completed the courses necessary for a Masters of Business Administration ("M.B.A.") in December of 1987. In July of 1986, the Grievor was employed on a 16-week contract with the Greater Niagara General Hospital when she responded to an advertisement for a teaching position in the Applied Management Division at the College's Welland campus. The Grievor forwarded her resume to the College and was subsequently interviewed for the position by a panel consisting of the Chairman of the Division, Andy Ferguson, and two Teaching Masters, John Birnie and Barry Sharpe. The Grievor and Mr. Birnie testified that at the interview, the Grievor was questioned about her previous employment and the panel expressed particular interest in her work at the Greater Niagara General Hospital. There the Grievor worked as a Staffing Assistant in the Human Resources Department. In this capacity, the Grievor was involved in recruitment, hiring staff, orientation of new staff and an employment equity project as well as other duties relating to the human resources function. Following her interview, the Grievor testified that she spoke with Mr. Ferguson in his office and that he produced a copy of the salary grid and indicated that, in all likelihood, she would receive a salary of approximately $31,500. In the summer of 1986, such a salary was somewhere between Step 5 and Step 6 of the grid.. As a result of her conversation with Mr. Ferguson, the Grievor also understood that she would be given credit for 17 of a total of 20 courses which she had completed toward her M.B.A. The Grievor.conceded, however, that Mr. Ferguson made no firm commitment with regard to salary as he indicated that the decision rested with the Personnel Department. The Grievor testified that on the day following her interview, she received a call from Mr. Ferguson who offered her the position in the Applied Management Division which she accepted. According to the Grievor, there was no discussion of salary at that time. On the following day, however, the Grievor was again asked to attend at the College by Mr. Ferguson and she testified that she was then advised that she would be placed at Step 2 of the grid with the result that she would receive a salary of $26,673. (This was increased to $27,473 effective September 1, 1986.) Mr. Ferguson also informed the Grievor that for purposes of placement on the grid, she had not been given credit for the courses which she had completed toward her M.B.A. As well, the Grievor understood that she had received credit only for full years of prior work experience. The Grievor advised Mr. Ferguson that she was concerned about this turn of events as she had just declined an offer of permanent employment from the Greater Niagara General Hospital for a position as Staffing Co- ordinator at an annual salary of $31,500. Nevertheless, having accepted the position at the College, the Grievor testified that she felt obliged to honour her commitment. The Grievor began work in September of 1986 and testified that she was not advised at that time or, in fact, at any time prior to the filing of the grievance, of the basis for the College's decision to place her at Step 2 of the salary grid. Although the Grievor was unhappy about her placement on the grid in the fall of 1986, she testified that she discussed the matter with other faculty who cautioned her against grieving during her probationary period. For this reason, the Grievor took no immediate action. In December of 1987, when the Grievor completed the courses necessary for her M.B.A., she wrote to Mr. Ferguson requesting a salary adjustment. Mr. Ferguson forwarded the Grievor's letter to Glenn Pevere, the Director of Personnel, who responded by advising the Grievor that it was the practice of the College to make salary adjustments only when a degree had been conferred. In the Grievor's case, this did not actually occur until she attended convocation in May of 1988. In the meantime, the Grievor provided the College with confirmation from McMaster University that she had completed the courses for her M.B.A. and was "Clear to Graduate" at the spring convocation, subject to the approval of Graduate Council of the University and of the Senate. In March of 1988, Mrs. Wylie also filed the grievance before the Board. Article 3.02 of the Collective Agreement provides that the determination of starting salaries and progression within the salary scales shall be in accordance with the College's Classification Plans, the relevant portions of which are as fol lows: SECTION 1 CLASSIFICATION PLAN FOR TEACHING MASTERS AND COUNSELLORS FAC TO RS 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 to some allied aspect of it. In determining the number of years to be counted, the College hiring must avoid the 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 his sales experience to count as relevant experience if he is being hired to teach engineering. Part-time experience should be totalled only if it forms part of a regular programme of development such as a co-operative educational programme. Double counting must be avoided. For example, if an applicant worked as a graduate assistant while pursuing an advanced degree, he 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 with the level required by the applicant. Again, double counting must be avoided for teaching experience as, for example, a graduate assistant while pursuing advanced qualifications. 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: 1/2 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 would be given 1 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 was significant duplication of other studies. Therefore only the highest qualification will be used in computation unless the subject areas are from different discipliaes and are relevant to the appointment. . C.A.A.T. Diploma or Post-Secondary Certificate - per yea~ (level) 1 1/2 points completed: (Maximum of 4 years) · University Degree: per year (level) completed: 1 1/2 points (Maximum of 6 years) · Formal integrated work/study program such as P.Eng., R.I.A., C.A., C.G.A., Certified Journeyman - per year (level) completed: 1 1/2 points (Maximum of 5 years) (Note that years included herein are not also to be included under Factor A) COMPUTING INITIAL PLACEMENT i) The minimum qualifications requirement is a count of 8 points based upon the appointment factors. Since this is the minimum requirement, a total of 8 points corresponds to the minimum rate. (This is not intended to preclude a college from hiring an individual whose qualifications and experience total less than 8 points. In such cases, however, the individual would be hired at the minimum of the scale.) ii) Computation of the initial salary is, therefore, A + B - 8. The product is rounded to the next higher number, e.g. A = 5 points B.=_4.!~.pqints A + B = 9 1/2 points 9 1/2 - 8 = 1 1/2 = 2 The starting position is the corresponding step (Step 2) on the scale. iii) No individual will have a starting salary of less than the minimum on the salary scale. Nor will an individual's maximum starting salary exceed the specified maximum starting salary on the scale. 2. Progression Factors (Annual increments to the appropriate mid-point of the salary scale are based upon experience. Beyond that point, performance constitutes the basis of progression.) Step Value A) Experience - to mid- point 1 step per year B) Performance - above mid-point, where perfor- mance satisfactory: 1 step per year C) Further Formal Educa- tion - where prior approval given by the college 1 step for each completed year at the post-secondary level - on the basis of the explanatory notes set out in Section B of the Appointment Factors on page 2. Note: No credit will be given where to do so would reduce total progression time to the.appropriate maximum to less than 4 years. Special Note to Raters If a given individual's qualifications and experience are such that the College concerned considers him to be particularly important to its program but the salary as established by the plan is inadequate, the College may grant up to three additional steps on appointment provided the resultant rate does not place the individual above the maximum starting rate for his level of formal education. The salary grid for Teaching Masters which is referred to in the Classification Plans is a 16-step scale on which salary maxima are based upon the Teaching Master's educational qualifications. Also specified are the mid-point and maximum starting salaries for each step on the grid. For example, the maximum salary for a Teaching Master with a 3-year C.A.A.T. Diploma or General Pass University Degree or certified Journeyman holding equivalent qualifications is Step 15. The mid-point for Step 15 is Step 8 and the maximum starting salary for Step 15 qualifications is Step 11. The task of determining a Teaching Master's starting salary as well as progression on the grid is performed in the Personnel Department by Mr. Pevere and, in the event that he is not available, by Jennie Balasak, the Personnel Officer. In this case, the assessment of the Grievor's experience and qualifications was actually made by Ms. Balasak. As to the general procedure which is followed by the College, Ms. Balasak testified that when there is a vacancy or a new position, the Personnel Department prepares the posting or advertisement for the newspaper. Applications for the position are then forwarded directly to the Personnel Department where they are collected and forwarded to the Chairman of the Department involved. The Chairman conducts interviews for the position and when the successful applicant has been selected, the individual's application is forwarded to the Personnel Department for the calculation of salary. For this purpose, the resume of the succesSful applicant is reviewed and if any aspect of the resume is unclear, the Chairman of the Department may be contacted for'particulars which he may have obtained during the interview process. Once the calculation of salary has been made, the Chairman of the Department is informed so that he will be in a position to advise the successful applicant of the starting salary being offered by the College. If the Chairman disagrees with the assessment of experience and qualifications made by the Personnel Department, Ms. Balasak testified that there may be some discussion at that point. She also explained that the College has the discretion to grant up to 3 additional steps on the salary grid but that this is a matter between the Chairman of the Department and the President of the College. In any event, once starting salary is established, the Chairman of the Department. contacts the successful applicant and subsequently advises the Personnel Department as to whether the College's offer has been accepted. After the Teaching Master has been hired, an Academic Appointment form is completed which specifies the manner by which salary has been calculated and indicates the credits given to the employee for his or her experience and qualifications. The form is signed by various members of management but is not provided to the employee. Ms. Balasak testified that she had no particular recollection of her assessment of the Grievor's experience and qualifications but gave evidence of the considerations which would have played a part in her decision to place the Grievor at Step 2. In respect of occupational experience, Ms. Balasak reviewed the Grievor's resume and testified that she was interested in permanent full-time employment which was relevant to the teaching process or to the area in which the Grievor was to teach. 10 Under the heading "EMPLOYMENT" on the Grievor's resume, a number of full-time positions were listed, including 3 in which the Grievor worked for 1 year or more. The Grievor was given- credit for each of these positions for the period of employment and, in addition, credit was given for 5 months of employment as Activity Director at the Brookhaven and Callander Nursing Homes from May to October of 1979. MS. Balasak explained that although the Grievor was employed for less than a year, the position was, nevertheless, a full-time one and the duties were relevant to the teaching position the Grievor was to occupy. In respect of her prior full-time employment, therefore, the Grievor was given credit for a total of 5 years' experience for which she received 5 points in accordance with the formula set out in the Classification Plans. Also under the heading "EMPLOYMENT" on the Grievor's resume appeared the following: Part-time positions have included: Supply Teacher of High School Mathematics (Niagara South Board of Education, and Niagara College, Welland Campus), Employee Benefits Clerk (International Harvester, Hamilton, Ont.), Department Store Cashier/Department Head (Zellers Ltd., Niagara Falls, Ont.), Day Camp Counsellor (Sudbury), and Clerk-Typist (Ministry of Transportation and Communications, Sudbury, Ontario). Ms. Balasak testified that she did not give credit to the Grievor for any of the positions set out above as part-time experience is not to be considered under the Classification Plans unless it forms part of a regular programme of development such as a co- operative educational programme which the Grievor's employment did not. Ms. Balasak also expressed the view that part-time positions are generally narrower is scope and entail less responsibility than permanent full-time employment. Although the Grievor's resume made no reference to her employment at the Greater Niagara General Hospital, the covering letter which was forwarded to the College with her resume indicated that at the time of her application, the Grievor was employed on a 16-week contract with the Hospital and the letter contained a brief description of her job duties. Once again, however, no credit was given for this employment which Ms. Balasak considered as Dart-time. Ms. Balasak suggested that the Grievor would'not have had the opportunity' to appreciate the impact of her work on the organization as a whole. Finally, under the heading, "Other Activities," the Grievor's resume contained the following: "1976-1979: a member of 'the Wingham Kinette Club -- served as Bulletin Editor and Treasurer and helped write a history book commemorating Wingham's Centennial." Ms. Balasak also gave the Grievor no credit for this experience. In respect of the Grievor's educational qualifications, Ms. Balasak credited the Grievor with 1 1/2 points for each of the 3 years leading to a Bachelor of Arts degree which the Grievor obtained in 1974. The Grievor was given no credit for the courses completed toward her M.B.A. as Ms. Balasak testified that it is not the policy of the College to give credit for such courses Until the degree is conferred. There is no disDute that having taken 17 of a total of 20 courses, the Grievor had comDleted more than 1 year of a 2-year M.B.A. program. After assessing the Grievor's occupational experience and educatioaal qualifications, Ms. Balasak applied the formula set out in the Classification Plans. This involved totalling the 5 points computed for occupational experience and the 4 1/2 points for the Grievor's educational qualifications for a total of 9 1/2 Doints which was rounded to 10. By subtracting 8 as provided in the formula, the result was 2 which was the Step at which the Grievor was placed on the salary grid. In January of 1988, Ms. Balasak agreed that a request was made by the Grievor for a salary adjustment based upon the fact that she had completed the courses for her M.B.A. Ms. Balasak also confirmed that this request was denied as she testified that it is the policy of the College to give credit in the form of 1 step on the salary grid only when a degree is actually conferred. If, however, a Teaching Master is less than 4 steps from the maximum salary, no credit is given. As indicated previously, the Grievor testified that it was not until after she had filed her grievance that she was informed of the calculation which resulted in her being placed at Step 2 of the salary grid. At that time, the Grievor submitted to the College a document entitled "Employment History" which sets out the employment for which she claimed credit for purposes of placement on the grid. Apart from the full-time positions about which there is no dispute, the Grievor also claimed credit for her work as an Employee Benefits Clerk at International Harvester from April to August of. 1974 and for employment of 3 months as a Quality of Life Co-ordinator at the Port Dover Nursing Home in 1980. The Grievor explained that as she occupied this latter position for such a short time, she did not include it on the resume which she forwarded to the College in July of 1986. The Grievor also testified that although both positions were referred to on her resume as "part-time", they did not involve work for a portion of the day or for less than 5 days a week. Instead, each job involved full-time hours but, because the Grievor's husband was transferred frequently in the course of his employment, the Grievor held a number of full-time positions for only short periods of time. The Grievor also sought credit for supply teaching and for her work in adult retraining in 1974 and 1975 as well as for her work at the Niagara General Hospital. Further, on the document entitled "Employment History," the Grievor described her work with the Wingham Kinette Club which appeared on her resume under the heading "Other Activities" as 1 1/2 years of self employment in which she planned, organized, marketed, co-authored and distributed a book for a service organization in Wingham. The Grievor took the position that, on the basis of the employment listed, she ought to have been given credit for 8 years rather than 5 years of occupational experience. Finally, in October of 1988, in response to a posting for a Co-ordinator position, the Grievor submitted to the Personnel Department, a document entitled "Partial Resume" which sets out her prior work experience in some detail. Although Ms. Kuntz, on behalf of the Union, took the Position that this document was also relevant to our consideration of the Grievor's occupational experience, it was the position of Ms. Eber, on behalf of the College, that neither this document nor the document entitled "Employment History" ought to be considered by the Board as they were both provided to the College subsequent to the filing of the grievance and were not taken into account by Ms. Balasak when she made her assessment in the summer of 1986. In respect of the merits of Mrs. Wylie's grievance, it was the submission of Ms. Kuntz that all of the Grievor's employment prior to joining the faculty of the College is relevant to the teaching posit%on for which she was hired. In refusing to consider periods of short term employment, Ms. Kuntz suggested that the College failed to make a fair assessment of the Grievor's experience and Ms. Kuntz conteaded that the College should not to have relied entirely on the resume submitted by the Grievor. Instead, the College ought to have consulted the Grievor in order that she could provide the College with all information pertinent to its assessment. In respect of the Grievor's educational qualifications, it was contended that the College was also in breach of its obligation under the Classification Plans. Ms. Kuntz submitted that when the Grievor was hired, she should have been given credit for the year which she had completed toward her M.B.A. as the Classification Plans do not made credit contingent upon a degree being conferred. The Grievor should also have received a furthe~ salary increase in December of 1987 when she completed the courses for her M.B.A. In the result, Ms. Kuntz requested that we allow the grievance and that, where appropriate, we grant relief retroactive to the Grievor's date of hire with subsequent increases being adjusted accordingly. It was the submission of Ms. Eber that the College made a fair assessment of the Grievor's occupational experience based upon the resume which she forwarded to the College in the summer of 1986. Ms. Eber further contended that Ms. Balasak properly excluded from her assessment any periods of part-time employment and, for this purpose, it was submitted that "part-time" mployment involves work with less than full-time hours or employment for a fixed term or period of time. With regard to 16 the Grievor's educational qualifications, Ms. Eber submitted that the College was not obliged make any salary adjustment until such time as the Grievor's M.B.A. was actually conferred. O~ce thi~ took place, Ms. Eber conceded that the Classification Plans provide for a salary increment in the form of 1 step on the grid for each completed year at the post-secondary level. She submitted, however, that the evidence of Ms. Balasak makes it clear that it has been the consistent practice of the College to grant only 1 step for the degree, regardless of the number of year.s of the program. Given this practice, Ms. Eber requested that we apply the equitable doctrine of estoppel to deny the Grievor entitlement to relief. In the alternative, Ms. Eber requested that ~e confine any relief which we might award to the time of the filing of the grievance. As is evident, there are a number of issues raised in Ms. Wylie's grievance and we propose to begin by considering the Grievor's educational qualifications and, in particular, whether in computing her starting salary, the College was required to give the Grievor credit for the year which she had completed toward her M.B.A. In this respect, the Union relied upon the following statement contained in the Classification Plans in support of its position that credit is to be given for each year of study and is not dependent upon a degree being granted: "Only full years of post-secondary educatioa at successively higher levels, and leading to a diploma, professional accreditation or degree, are recognized." The College, on the other hand, relied upon the example which follows this statement which refers to a graduate of a 3-year technology program being credited with 1 1/2 points for each of the 3 years regardless of the length of time actually spent by the individual in obtaining the diploma. The College also relied upon the structure of the salary grid and the fact that salary maxima, mid-points and starting salaries are based upon "relevant formal education levels" which are described in terms of recognized diplomas, degrees or professional accreditation. The determination of this issue is not without difficulty and an argument could be made that the language of the Classification Plans is ambiguous. However, even if we were to reach such a conclusion, no extrinsic evidence was introduced to which the Board might have recourse as an aid to interpretation. Although the College has evidently given credit and made salary adjustments only when a degree has been conferred, there was nothing to indicate that the Union was aware of this practice. As a result, the practice of the College alone cannot be considered and the issue must be resolved on the basis of the language of the Classification Plans. The statement contained in the Plans which was relied upon by the Union does suggest that credit for the purpose of calculating starting salary or for making salary adjustments is to be given for each year of study and is not contingent upon a degree having been conferred. Tl~is statement, however, must be be viewed in the context of the Classification Plans as a whole. These Plans provide for an assessment of appointment factors, one of which is "relevant formal qualifications". Such qualifications are described as "those which constitute the norm in institutions of post-secondary education in the Province of Ontario". It is these qualifications which are to be assessed and for which credit is given on the basis of the number of years required to obtain the relevant diploma, degree or professional accreditation. The Classification Plans further provide that where there is duplication of studies, only the highest qualification is to be used in the computation. Once again, it is the qualification which is the foundation of the computation and not merely the additional year or years of study. Further, if one considers the example which follows the statement relied upon by the Union, it appears that the parties were seeking to make clear that only full years of study would be counted and were not addressing the basis for entitlement to credit. Finally and, in some respects most significantly, the Classification Plans were designed to provide the means by which starting salary and progression on the salary grid are to be determined. The salary grid is based upon formal educational qualifications and it is in these terms that starting salaries, mid-points and salary maxima are specified. It would, in our view, be somewhat anomalous for the the Classification Plans to provide for placement and progression on the grid on another basis; namely, completio~ of one or more years of post-secondary education without the necessity to obtain the recogaized educational qualification. On the Union's interpretation, of course, there would be no need to ever complete the course of study and obtain the diploma, degree or professional accreditation. Given the Classification Plans as a whole and the manner in which the salary grid is structured, we find that the College is correct and that credit for the purpose of calculating a Teaching Master's starting salary and for purposes of advancement on the grid is dependent upon the Teaching Master having obtained the diploma, degree or professional accreditation. In our view, therefore, completion of one or more years of study leading to a degree is not sufficient and it naturally follows that completion of the courses leading to a degree is also not sufficient. Credit is to be given only when the degree is conferred. In this case, the Grievor received her M.B.A. in the spring of 1988 and the College agrees that at that time, she was entitled to credit in the form of 1 step on the salary grid. The Classification Plans, on the other hand, provide for 1 step "for each completed year at the post-secondary level". The College's policy, therefore, of granting 1 step on the grid regardless of the number of years required to complete the degree is contrary to the wording of the Classification Plans. Although Ms. Eber submitted that we ought to aQply the the equitable doctrine of estoppel, the elements which are necessary to the application of this doctrine have not been established. Estoppel applies where one party has, by its words or conduct, made to the other a representation that its strict legal rights under the contract will not be enforced with the result that the party to whom the representation was made has relied upon that representation to its detriment. In this case, estoppel was raised for the first time in final argument and there was no evidence that the Union was even aware of the College's practice. There was, therefore, no representation on the part of the Union of an intention to forego its strict legal rights which would preclude the Union from now relying upon the wording of the Classification Plans. In these circumstances, we find that when Mrs. Wylie's M.B.A. was conferred, she was entitled to credit in the form ~of 2 steps on the salary grid. Turning then to the matter of occupational experience, the first issue to be addressed concerns the manner in which the College made its assessment. As indicated previously, the College relied solely on the informatioa contained in the Grievor's resume and took the position that the procedure which was followed was appropriate and that it is simply too late for the Grievor to come forward and attempt to describe her occupational experience in different terms. In this regard, the College relied upon the following submission which was advanced on behalf of Cambrian College and which was adopted by the majority of the board of arbitration in Cambrian College and The Ontario Public Service Employees' Union, September 6, 1988 (Palmer (unreported)): Both Ms. St.-Jean and Ms. Gagnier have attempted to introduce evidence, at the hearing, of allegedly relevant supply-teaching experience that was not provided to the College at the time of hiring. Quite apart from the question of whether or not any of this material is relevant (which we have already dealt with) it is submitted that it would be most improper to place any reliance on this sort of material even if it was relevant. In the end, what is at issue in this type of case is whether or not the grievor's "starting salary" was proper. The College must make an assessment of that starting salary based on an assessment of what the College is told are the person's work experience and educational qualifications. The College does not have a crystal ball - the applicant knows exactly what his or her work history and educational qualifications are; the College does not. The College must rely on what it is told at the time of hiring. Where the College does so, and arrives at an appropriate starting salary in its judgment, it wuld [sic] be most unfair, some years later, to require the College to' adjust the rate of pay based on some information that was not provided at the time of hiring. Quite apart from the general fairness of such a proposition, it will be evident that the College may make its hiring decision, at least in part, based on what it has calculated the starting salary (and ultimately future years' salaries) to be. It would be most unjust to alter the Parties' expectations some years later. In any event, such a result is, in our submission, dictated by the wording of the Plan itself, which requires a "computation" of the "starting salary". Such a computation can only be dose at the time of hiring. It can only be done on the basis of information provided at the time. Information provided la,er would have no relevance to such a computat ion. Like the majority of the board in the Cambrian College award, we agree with the general statements contained in the submission set out above. The College must calculate starting salary on the basis of information strictly within the knowledge of the prospective employee and the College should not be faced some years later with an attempt on the part of the employee to amplify upon the information previously provided. This, however, is subject to one qualification: at the time of hire, the prospective employee should be advised of the basis upon which starting salary is to be calculated and he or she should be given an opportunity to provide the College with all information pertinent to its assessment of the appointment factors set out in the Classification Plans. In this case, Mr. Ferguson who interviewed the Grievor and discussed with her the matter of starting salary was not called to give evidence. From the Grievor's evidence, it appears that she understood very little of the process involved. The Grievor was not made aware of the considerations which were to play a part in the College's assessment of her occupational experience, nor was she advised that in making its assessment, the College intended to rely solely on information contained in her resume. There was no suggestion that this document was prepared with a view to such an assessment and no request was made of the Grievor to submit additional or more complete details of her prior work experience for the purpose of calculating he~ starting salary. The Classification Plans provide that the College.is required to make a fair assessment of an applicant's expe~ience and, in our view, this applies not only to the actual assessment of occupational experience but also to the manner in which that assessment is performed. The process is not one, we believe, which should be shrouded in mystery and, for the reasons set out, we find that the College did not act fairly in the manner in which it assessed the Grievor's occupational expe~ience. In this case, it was not until after the grievance was filed that Mrs. Wylie was informed of the reason for the College's decision to place her initially at Step 2 of the grid and at that time she sought to provide the College with further information concerning her prior work experience. In the particular circumstances of this case, we are not prepared to disregard such evidence. .Had the College advised the Grievo~ ia the summer of 1986 of the basis upon which its assessment was to be made, the Grievor would undoubtedly have given to the College the information which she provided subsequently. In these circumstances, the College cannot now complain that it has been unfairly prejudiced by information not available to it previously. Turning then to the Grievor's occupational expe~ience, we do not find that the College was unfair in its assessment because no credit was given for the Grievor's work as a Clerkr typist or as a Cashier. Although these positions were initially disregarded because they were understood to involve part-time employment, nevertheless, they can be excluded as not relevant to the position for which the Grievor was hired. There are, however, a number of positions for which we find that the Grievor ought to have been given credit. These consist of the position of Employee Benefits Clerk at International Harvester which was not discounted by Ms. Balasak because of lack of relevance but rather because it was understood to involve part-time employment. In our view, the Grievor was also entitled to credit for her position as Quality of Life Co-ordinator in Port Dover as she received credit for a comparable position in Wingham and Brussels. Further, we find that the Grievor ought to have been given credit for her work at the Niagara General Hospital which was discounted by the College as being part-time. There can be no dispute about the relevance of this experience and although the position was for a fixed term, the G~ievor did work full-time hours. We see no difference between a contract position of this sort and a sessional appointment which has been treated as relevant experience for purposes of the Classification Plans. In Cambrian College and The Ontario Public Service Employees' Union (supra), the majority of the Board determined that supply teaching did not qualify as relevant experience according to the terms of the Classification Plans. As it can not be said that the conclusion reached by that Board is clearly wrung, it is one which should be followed, based as it was upon the Classifications Plans which are before this Board. In these circumstances, we find that Mrs. Wylie was not entitled to credit for her supply teaching with the Niagara South Board of Education in 1974 and 1975. Although, the Grievor was also involved in adult retraining during this period, there was insufficient evidence concerning the nature of the work she performed to substantiate her claim for credit. This leaves the Grievor's work with the Wingham Kinette Club and it is to be noted that there is a significant difference between the way in which this experience is described on the Grievor's resume and on the document entitled "Employment History". In any event, because of the nature of the calculation of starting salary, it is unnecessary to determine if this qualifies as relevant occupational experience. Even if the Gcievor were to be given some credit for this work, this would not affect the total number of points which the Grievor would have received and, therefore, would not have altered her initial placement on the salary grid. In the result, for the Griever's work at International Harvester, for her work as a Quality of Life Co-ordinator in Port Dover and for her work at the Niagara General Hospital, %he G~ievor should have been credited with 1 additional year of occupational experience. As the Grievo~ initially received 1 point for each year of the first 5 years of experience, she was entitled to 2/3 of a point for the additional year. She, therefore, ought to have received a total of 5 2/3 points and when this is combined with the 4 1/2 points she received for her educational qualifications, the total is 10.16. By subtracting 8 and rounding the sum to the next highest number, the result is 3, which is the Step at which the Griever should have been initially placed on the salary grid. The final issue concerns retroactivity and specifically whether the Griever is entitled to credit for the additional step on the grid from her date of hire. Having considered the evidence and the submissions of the parties, it is our view that such relief is not appropriate. Although the Griever was not apprised of the basis for the College's decision to place her at Step 2 until after the grievance was filed, she was unhappy about her placement on the grid in the fall of 1986 and at that time, she had some understanding that she had not been credited with her work towards her Masters degree and that she had been credited with only full years of prior work experience. The Griever was also aware of her right to grieve and although she may have been reluctant to do so during her probationary per[od, ~..e fact is that she did not challenge the College's assessment until March 1, 1988. In these circumstances, relief shall be confined to the period of 34 days prior to the filing of the grievance. As indicated previously, when Mrs. Wylie's M.B.A. was conferred in the spring of 1988, she was also entitled to an increment in the form of 2 steps on the grid and any other salary increases granted to the Grievor shall be adjusted accordingly. The Board shall remain seized for purposes of implementation of this award. mATED AT TORONTO, this 31st day of March, 1989. Chairman "Rene St. Onge" College Nominee See partial dissent attached Union Nominee IN THE MATTER OF AN ARBITRATION BETWEEN NIAGARA COLLEGE OF APPLIED ARTS AND TECHNOLOGY AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION IN THE MATTER OF THE GRIEVANCE OF ANNE WYLIE PARTIAL DISSENT I have read the Award and must dissent in part. With respect to the majority view of the salary scale educational criteria as described on page 17, 18 and 19 of the Award, I cannot agree that their fir~ir~ is correct, nor can I agree that it should be: found to be anomalous to the Union's interpretation of the Classification Plan. I prefer instead the statement made by the majority on page 17 as follows: "The statement contained in the Plans which was relied upon by the Union does suggest that credit for the purpose of calculating starting salary or for making salary adjustments is to be given for each year of study and is not contingent upon a degree having been conferred." and I do not believe anythir~3 in the rest of the Plan diminishes the meaning of that statement. - Page 2 - Under the Plan, it is clear that the ~ployer must make a fair assessment of the employee's experience (relevant teaching and/or occupational experience). The information made available to the Employer on Ms. Wylie's resum~ was not fairly assessed, as Ms. Balasak took it upon herself to discount any "part-time" work (even if it was full-time, but "short-term") despite the obvious relevance of the work. For example, the part year at Greater Niagara General Hospital (which was directly related to personal matters, and so, relevant), the year of supply teaching for the Niagara South Board of Education (relevant teaching experience) and the year and a half of self employment authoring and marketing a book for a service organization in Wingham, Ontario. Also, the College did not enquire beyond the resume, and so made no attempt to clarify anything on the resum~ in terms of precise dates or job duties. In my opinion, it is impossible to make a fair assessment based on a resum~ only. People draw up resumes as a short overview of their background in order ot secure interviews for various positions they might apply for; it is a very reasonable assumption to make that, once a person is successful in obtaining a job, the details of their work experience would be sought especially if the wage rate is to be calculated on such experience. - P~ge 3 - Therefore, I would have found that the College should make a re-consideration of Ms. Wylie's work experience, and that following such reconsideration, any increase in "starting level" on the salary scale which might flow from that should be paid back to the date of hire. Regarding educational credits, the Plan reads as follows: - Relevant formal qualifications - ..... Only full years of post secondary education at successively higher levels, and leading to a diplc~a, professional accreditation or degree, are reccgnized ..... · C.A.A.T. Diplcma or Post Secondary Certificate -per year (level) completed: 1 1/2 points (maximum of 4 years) · University Degree: per year 1 1/2 points (level) cc~pleted: (maximum of 6 years) My reading of the relevant formal qualifications is that a credit of 1 - 1/2 points will be given for each ccmpleted year of university degree - and in Ms. Wylie's case, the College gave her no credits for the time (about 1 - 2/3 years) completed towards her Masters degree at the time she was hired. Therefore, she should have been given 1 - 1/2 points for having completed the first year of the degree at the time she was hired. - Page 4 - The Award of the majority does eventually give her credit for each year ccmpleted, but not until her Masters is actually conferred upon her - which was scmetime in the Spring of 1988. In my opinion there is no magic in the date of convocation. The Union's argument was well founded in urging that the credit for the 1st year of the Masters degree should have been granted at the time of hire, and the credit for the second year of the Masters degree should have been granted at the ccmpletion of the remaining course credits, which occurred in Ms. Wylie's case in December of 1987. The financial penalty to ~s. Wylie for the College's breach of the intent of the Classification Plan has been significant since her hiring in 1986, and it has now been compounded by this Award despite its partial relief. I w~uld not have limited the retroactivity flowing from this Award to 34 days prior to the filing, nor· would I have withheld the credits for the Masters degree until the Spring of 1988. All of which is respectfully sukmitted. Dated at Toronto, Ontario on the 30th day of March, 1989. t J S~n~a Nicholson, Union Nc~inee