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HomeMy WebLinkAboutConnell 91-05-16 IN THE MATTER OF AN ARBITRATION BETWEEN : ONTARIO COUNCIL OF REGENTS FOR THE COLLEGES OF APPLIED ARTS AND TECHNOLOGY (NORTHERN COLLEGE) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR ACADEMIC EMPLOYEES) - Grievance No. 90C935 (N. Connell) BOARD MARTIN TEPLITSKY, Q.C. Chairman Jon McManus Union Nominee Allen S. Merritt College Nominee APPEARANCES On behalf of the College: John W. Saunders, Counsel On behalf of the Union: David W. T. Matheson, Counsel Hearing held April 18. 1991 at Timmlns. AWARD Although the facts surrounding this grievance are not in dispute, a proper resolution is difficult to reach, principally because in approaching like problems, arbitrators have reached dramatically different results. Until February 26, 1990, the grievor had a sessional appointment and was not covered by the Collective Agreement. Thereafter, by operation of the Collective Agreement, her status changed to professor. She taught until the end of June. The employer, who had been paying her on the basis of 1/261 x the annual salary for each day taught then calculated on a pro-rated basis a vacation entitlement of 17 1/2 days and paid for these at the same rate. Ail professors at Northern College are paid in the same way. The grievor claims that she was entitled to be paid fully for the months of July and August. The employer's position is that for the past 10 years, at least, it has pro-rated vacation in like cases without a grievance from the union. The union asserts that it was unaware of the practice. Arbitrators have differed about whether under this Collective Agreement there is a paid vacation or there is not a 3 paid vacation. If there is a paid vacation, then each day of the year is worth 1/261. (I take it this is arrived at by deducting from 365 (# of days in the year) 104 weekends. If the vacation is unpaid, then the calculation is 1/215, 215 representing the teaching days in the academic year. I note that the employer's approach is consistent with a "paid" vacation, and, indeed, it paid vacation pay to the grievor. In any event, in my opinion, the employer was correct in pro-rating vacation pay. I do not accept Mr. Matheson's argument that the grievor's prior service when she was not a member of the bargaining unit, counted for purposes of calculating her vacation entitlement. No language in the Collective Agreement specifically requires this result. Moreover, the grievor received vacation pay as a sessional. In the absence of express language, one would not expect her to receive vacation pay twice. The Awards which were cited to me in support of this aspect of the grievor's case are based on different Collective Agreements and different factual situations. It remains to consider whether the grievor was entitled to be paid for the months of July and August on some basis other than vacation entitlement. In my opinion, the answer to this question is "yes" The assumption that the employer made was that if the grievor was only entitled to 17 1/2 days of vacation pay, that she did not have to be paid for the balance of the months of July and August. In my opinion, this assumption was not correct. The grievor was an annually-rated employee. She was, unless laid off or discharged, entitled to be paid and could be required to work. There was no lay-off and no discharge. Accordingly, she was entitled to be paid and could be required to work. This result follows whether the vacation is considered as paid or unpaid for those entitled to a vacation. However, as the issue of "paid" or "unpaid" was fully argued before us, I note that Articles 8.02(b) and 8.03 make it plain that the parties to this agreement consider the vacation as paid. I note that these Articles are not discussed in the most recent award considering this issue. Moreover, it is incongruous in this day and age to speak of an "unpaid vacation". "Unpaid vacation" means you have been fired or on an unpaid leave of absence. Otherwise, people receive holiday pay. In the circumstances of this case, bearing in mind that the grievor's claim was that she was entitled to vacation pay, and that she did not and likely would not have worked, if asked, I assess her damages inclusive of interest at $2,000.00 to be paid 5 within thirty (30) days of the issuance of this Award, failing which payment and interest shall run at the rate of 12% per annum. We will remain seized pending implementation of our Award. DATED the 16th day of May, 1991. MARTIN TEPLITS~ Q~C. Chairman ,/~ JON McMANUS Union Nominee ALLEN S. MERRITT College Nominee