HomeMy WebLinkAboutMagill 01-12-31
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IN THE MATTER OF AN ARBITRATION
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BETWEEN:
LOYALIST COLLEGE
(Hereinafter referred to as the College)
AND
OPSEU
(Hereinafter referred to as the Union)
AND IN THE MATTER OF THE GRIEVANCES OF L. MAGILL
(OPSEU NUMBERS 99DO93, 99DO94, 99DO95, 99DO96 & 99DO97)
BOARD OF ARBITRATION: Gail Brent
Peter Hetz, College Nominee
Sherril Murray, Union Nominee
APPEARANCES:
FOR THE COLLEGE: D. K. Gray, counsel
D. Butler, Vice President Staff & Student
Services
G. Sinclair, Dean School of Health &
Community Services
D. Holland, Dean Business & Continuing
Education
FOR THE UNION: Donald K. Eady, counsel
Chris Staller, student-at-Iaw
Harry Plummer, Chief Steward Local 420
Linda Magill, Grievor
FOR THE INCUMBENT: Paul Kelley, Incumbent
Hearings held at Belleville, Ontario on November 20,21,22, & 23, December 18 & 19,2000,
October 1& 2, November 6, & 7, 2001.
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.. DECISION
There are five grievances before us (Ex. 1) which by agreement of the parties were all heard
together. No preliminary objections were raised concerning arbitrability or jurisdiction in connection
with any of the grievances. The grievances are set out below:
Grievance 99DO93 Dated July 5. 1999
Statement of Grievance
I grieve that the College has improperly laid me off, contrary to the provisions of the
Collective Agreement; and I further grieve that the college has acted in an arbitrary fashion
and in bad faith in their dealings with me concerning the existence a (sic) vacant position.
Settlement Required
The College will reassign me to the vacant full-time position teaching Communications in
the Law and Security Program or to any other vacant full-time position that may arise as a
consequence of planning for the Fall, 1999 semester; or
to a vacant position created by combining the subjects eannarked for part-time and partial-
load staff as described in the School of Business planning schedule or any similar
combination in any other school including, but not limited to, the position teaching computer
skills in the School of Health & Community Studies.
Grievance 99DO94 Dated July 5.1999
Statement of Grievance
I grieve that the college haS acted in bad faith by failing to apply the provisions of the college
policy regarding internal candidates for full-time academic positions.
Settlement Required
The college will appoint me to the position of Professor to fill the full-time teaching
communications in the School of Health & Community Services, Law & Security Program,
Grievance 99DO95 Dated July 5. 1999
Statement of Grievance
I grieve that the College by interfering in the progress of my retraining activities, has failed
to provide the full 90 days for retraining.
Settlement Required
The college will provide the full 90 days.
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.. Grievance 99D096 Dated August 20.1999
Statement of Grievance
Whereas on July 12, 1999, while actively engaged in a retraining activity during the period
of my notice of lay-off, I became temporarily disabled; and
whereas I requested that I be put on Short Term Disability benefit under 17.01 A in lieu of
being engaged in retraining activity; and
whereas I recovered and returned to the activity after August 6;
I grieve that the college has breached Article 17.01 A and Article 27.06 (viii) (c) by not
extending my lay-off notice period by a total of four weeks so as to accommodate my illness
and still provide the required 90 days clear for retraining.
Settlement Required
The College will pay me my regular salary plus an amount equal to the value of my benefits
for four additional weeks.
Grievance 99D097 Dated August 30. 1999
Statement of Grievance
I grieve that the College contravened Article 27.09B by hiring Paul Kelley into a full-time
position in the Law & Security Administration program before recalling me.
Settlement Required
The College will recall me to the position with full retroactive effect to the date the position
was filled - August 16, 1999.
The only position with which we are concerned is that of the full-time Professor teaching
Communications courses in the Law and Security Administration program (hereinafter referred to
as LASA) in the School of Health and Community Services, the position which is described in the
posting at Exhibit 2, Tab 11. That position is currently held by Paul Kelley. He was notified of his
rights to appear and to participate in these proceedings as a party. He testified on his own behalf on
November 7,2001 but made no submissions and did not otherwise participate.
The grievor began employment in the College as a Professor in the School of Business in
1993. Her réswné, which is found at Exhibit 2, Tab 1 and in other exhibits before us, sets out her
education and work history. Suffice it to say for the present that she received her BA from
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.. Laurentian University with majors in Psychology and Law and Justice, that she has taken courses
in Business and Communications at the University of Winnipeg, Carleton University and the
University of Windsor, and that she has an Advanced Certificate in Business Administration with
a major in Accounting from Red River Community College. During her years teaching at the
ColJege she taught a variety of courses which had significant Communications components (see
Ex. 2, Tab 22). On March 31, 1999 she was first made aware that her position was not being funded
for the next academic year. On May 3rd she received the following letter dated April 30, 1999 (Ex. 2,
Tab 3) from Maureen Piercy, the Acting President of the College.
Since March 31, 1999, the day that you were informed by your Dean, Dan Holland that your
position was not being funded in the 1999-2000 budget, the Academic Management Team
has been reviewing your updated credentials with a view to placing you in a full-time
position in the Academic Bargaining Unit. Unfortunately~ their attempts have been
unsuccessful.
Under these circumstances, it is my unpleasant responsibility to issue you this 90 calendar
day notice of lay offas outlined in article 27 of the Collective Agreement. Accordingly, you
are being released from all of the normally assigned duties for this period of notice, for the
purpose of engaging in retraining activities and your regular salary and benefits will continue
until the end of July 1999. Your vacation and any other money owing will be paid out at that
time.
Please be aware that we are willing to assist you in any way we can in your search for
alternate employment including appropriate letters of reference and support. I encourage you
to consult your union to obtain full details of your rights under the Collective Agreement in
these circumstances.
I share this information with you very regretfully, and I want to emphasize that this decision
is solely based on financial issues, and is no reflection of your performance. The College
appreciates and recognizes the contribution you have made.
Sometime around the end of March the grievor also became aware of the fact that a new
Communications position within LASA might be being created, and subsequently began expressing
her interest in being considered for it. Before dealing with those efforts, we will first deal with the
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'. evidence we heard concerning the genesis of that position.
Within the College there are a variety of program-specific Advisory Committees which
report to the Board of Governors through the President; those committees are made up of
representatives from the College (students, faculty and administration) and from the community of
potential employers of the program's graduates. LASA has an Advisory Committee which meets
twice a year. Minutes are kept of the LASA Advisory Committee meetings, and those minutes are
circulated to the faculty within the program. Subjects raised at the LASA Advisory Committee
meetings are also discussed at LASA faculty meetings.
There is no doubt that the external members of the LASA Advisory Committee had been
raising concerns about the English language skills of the LASA graduates for some time. The
concerns dealt with both the written and oral skills of the students. Those external members of the
committee, who were potential employers and who took student placements, were finding that the
students with whom they came into contact were deficient in communication skills and did not
appreciate the significance of those skills to potential employers.
Glennyce Sinclair became the Dean of the School of Health and Community Services in
1993; the LASA program is in that School. As Dean she sat on the Advisory Committee for LASA.
It would appear from her evidence that ever since 1993 the Committee had been voicing concerns
about the language skills of the students. The minutes for meetings in 1995, 1996, 1997 and 1998
(Exs. 22, 23, 25, & 26) show ongoing discussions of the problems and the sort of recommendations
that the Advisory Committee was making to the Board of Governors. Two external members of the
Advisory Committee, Robert Thomas and David Black, both confirmed that the view expressed by
the committee members drawn from the profession was that the students' English language skills
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, , were deplorable, and were adversely affecting their employability in law enforcement, security and
the related fields.
In summary, the Committee was hearing from the College representatives that the work in
the Communications classes was remedial in nature because the students coming into the program
from grade 12 could not spell, write sentences, punctuate, etc. The Committee expressed concerns
to the Board of Governors that the elementary and secondary schools had to improve the standard
of language skills in their students who were coming to the College so that the College would not
have to be so concerned with remedial Communications work. It also continued to be concerned
about the efforts the College was making to improve the language skills of its students. Sinclair said
that she had been approached by members of the Advisory Committee outside the meetings to ask
why the College was not hiring someone who was especially prepared to teach English language
skills.
The LASA program was not indifferent to these criticisms. Cecilia Reilly, a full-time
professor in LASA since 1990, testified that the students' language skills have always been an issue
in the program since she started teaching, and that various methods have been tried over the years
to improve those skills. Further, the evidence before us is that none of the faculty members on the
Advisory Committee ever disagreed with the assertions being made about the students' deficiencies
in Communications skills.
Sinclair said that various strategies had been employed over the years to deal with what was
an acknowledged problem in the students' language skills. She said that when the program was
transferred to her school, the faculty decided to integrate Communications into every course and to
set aside a portion of the marks for Communications skills. That was tried, but the faculty feedback
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, , showed that it was not working because the language skills of the students were so deficient. Then
one faculty member (Hazelton) volunteered to deal with language skills. He set up a room with
forty-five computers equipped with a particular computer program he had requested to deliver a
program in Communications. This did not achieve the desired results. It was then decided that four
different faculty members would teach Communications; that was not a success. Sinclair said that
as a result of that experience there was almost a revolt among the faculty and they asked that it not
be repeated. She said that the feedback she was getting from the faculty was that someone was
needed who was a specialist and had the expertise to teach Communications. As a result there was
an advertisement for a one year sessional position and someone was hired. That person was Paul
Kelley, who is the incumbent in this case.
It would also appear that around 1998 standardized testing of Communications skills began
in the LASA program. Sinclair said that before that standardized testing had been done on a hit and
miss basis. After 1998 standardized tests became part of the whole approach of assessing students'
Communications skills both on entering and leaving the program. The College wanted to continue
to build on the testing that had been done and to develop ne'Y testing as part of the protocol.
After the sessional appointment was in place, and with the perceived needs of the program
in mind, Sinclair began lobbying for the full-time position which is described in the posting (Ex. 2,
Tab 11). This lobbying was done among her colleagues on the Academic Management Team and
with the Vice President. She had to make a case in order to get funding approved for a full-time
position and she was ultimately successful. The position was given final approval by the Board of
Governors in late Mayor early June 1999 and was posted in June 1999. Before that, however, it was
known by the end of March that a full-time Communications position was likely to be created in the
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, , LASA program.
The position which was eventually approved is described in the posting (Ex. 2, Tab 11) as
follows:
Job Title: Professors (sic) (Full time)
Program: Law and Security Administration and Police Foundations
Subject: Communications
Reporting To: Dean, School of Health and Community Services
Salary: Start salaries are determined by qualifications and years of related
experience as detailed in current Collective Agreement for Academic
Employment.
Summary of Duties:
- prepare and teach Communication courses which meet program and employer
requirements,
- administer and interpret standard English assessment tests as a guide to instruction
and to assisting individual students,
- teach large groups of students in a classroom setting,
- guide and teach individual students focusing on particular areas for development,
- act as a resource to other program faculty in estaglishment of English language skills
for written and oral presentations,
- other duties within the Professor classification. . .,
- confer with coordinators and other program faculty as necessary regarding College
and Program Policies and Procedures.
Qualifications:
The successful candidate will posses:
- the minimum of a B.A. English with preference given to MA (or PhD) in English
Language Studies in Adult Literacy,
- several years of successful experience teaching English language and/or literacy to
your (sic) adults,
- knowledge of the College system, and programs preparatory to careers in fields of
justice services,
- excellent communication and teaching skills,
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" - able to work within a team environment.
Interviews: A Selection Committee will interview short listed applicants.
Interviews are tentatively scheduled for the last week of June.
Under Article 27.05 of the collective agreement the College must notify the Union and the
College Employment Stability Committee (hereinafter referred to as the CESC) of the "planned staff
reduction and the courses, programs or services affected". The CESC is made up of equal numbers
of Union and College representatives. Under Article 27.05 (iii) the CESC can meet to discuss,
among other things, "the availability of alternative assignments". Reilly was one of the two Union
members on the CESC at the relevant time. She first learned of the grievor's possible layoff in the
spring of 1999 at a CESC meeting. At that meeting there was some discussion about future open
positions, including the LASA position in question; however, there were no details at that time
concerning the LASA position. At a later CESC meeting the posting was available and was
discussed.
Reilly said that Sinclair explained to the CESC that there had been problems with
Communications in the LASAprogram which were being commented on by the Advisory
Committee and which were casting the program in a negative light. She said that Sinclair explained
that this was the rationale for the creation of the position. Reilly also testified that the CESC
discussed whether or not the grievor fit the position and, although she could not recall the details of
the discussion, her sense of it was that the grievor did not seem to fit. Reilly said that the two things
that struck her about the grievor's résumé was the lack of a degree in English or a related discipline
and the absence of any indication that she had the skills to design diagnostic tests. The end result
was that the CESC did not recommend the grievor for the position. In her evidence Reilly said that
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,. the CESC's view was that the grievor was not a clear fit and that she did not meet the requirements
of the posting. No recommendation is made by the CESC unless it is unanimous.
As well as being considered by the CESC, the grievor's résumé was also considered by the
Academic Management Team. This was alluded to in the notice of layoff that the grievor received
from the Acting President (see Ex. 2, Tab 2 reproduced above). At that time Sinclair was Acting
Vice President Academic and as such chaired the meetings. The Deans and Acting Deans from all
of the schools are part of the Academic Management Team, along with the Director of
Admissions/Registrar. Sinclair encouraged them to get updated résumés from all faculty members
designated for layoff. Those résumés were then circulated to all of the Deans, and she met with each
one individually to see if the person to be laid off had the skills and knowledge for a position in that
Dean's school. This was done with the grievor's résumé. The grievor's Dean would be available
to the Academic Management Team as a resource concerning the grievor's qualifications and
expenence.
As part of the process described above Sinclair considered the grievor's résumé in light of
the LASA position which had not yet been fmaIly approved. She noted that the grievor did not have
a degree in English and there was nothing in the résumé that indicated to her that the grievor had
expertise in teaching English as a subject, or in administering or interpreting diagnostic testing
related to English. It was her conclusion that the grievor did not meet the requirements of the job
which was in the process of being approved.
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The grievor elected not to try to bump. Rather, she determined that she had the requisite
knowledge and skill for the Communications position in LASA, and that is what we are to
detennine. However, in view of the other grievances with which are seized, it is also necessary to
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" examine the process by which the grievor's application was ultimately considered, as well as other
matters relevant to those grievances. However, we will first look at the evidence concerning the
grievor's "competence, skill and experience to fulfill the requirements of the full-time position
concerned" .
As already stated, the grievor's résumé is to be found at Exhibit 2, Tab 1, inter alia. Earlier
in the award we set out a brief statement of her academic credentials and her work experience outside
the College. The evidence before us concerning the courses that the grievor taught at the College
over her six years of employment reveals that there were significant Communications components
to several of them. She said that she was able to deal with the Communications components of her
courses without problems, and we have no basis for doubting that statement. According to her letters
of reference from her Dean and colleagues, she was a good teacher. The grievor had examined the
course outlines for the LAS A Communications courses, and it was her view that she could deliver
the courses without any problem.
The grievor said that she had never used the College Diagnostic Test. She said that she took
one course in Tests & Measurement at Laurentian which, based on her evidence, appeared to consist
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of a general theoretical overview of standardized testing. She also said that she had had training in
the administration of standardized testing and test interpretation, but she did not say in what context
or whether it was more specialized than the Laurentian course she mentioned.
The grievor testified that she was able to teach large classes and had been doing that in the
College, where one of her classes had over a hundred students. It was also her evidence that over
the years she has worked with her students on an individual basis focusing on their development, and
has worked with them to develop their written and oral skills both in class and on an individual basis.
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. She said that she would continually stress language skills in her classes, and was always willing to
act as a resource to other faculty when requested to do so. She said that she would often proofread
letters for people, and that faculty would habitually bounce presentation ideas off one another.
The grievor said that based on her experience she does not see the necessity for a BA or MA
in English in order to teach Communications. She said that a BA in English simply means that the
person has taken a certain number of English courses and that, recognizing that all learning does not
take place in the classroom, anyone with a good command of English and the courses she had could
teach Communications. The grievor indicated that she believed that she had excellent
communication and teaching skills and that the courses she taught at the College proved that she has
had years of successfully teaching English language and/or literacy skills to young adults.
It should also be noted that we heard evidence from the grievor about being hired as a
sessional employee by Durham College to teach Communications courses to students in a program
which is the equivalent to LASA. This evidence was heard over the objection of the College and
that objection will be dealt with later. Suffice it to say that the evidence showed that the grievor
taught courses in Communications in the period immediately following her layoff. The courses in
question appeared to be similar in content to the Communications courses offered at the College.
The grievor was able to teach them with just the normal sort of brushing up that would be expected
of anyone teaching a particular course for the first time. We have no evidence before us to indicate
that she was not able to teach those courses.
We also heard evidence from Reilly and Patricia Dockrill about the Communications courses
in LASA. Both of them have recently taught or were teaching those courses at the relevant time.
Neither of them has a degree in English. Dockrill was of the view that a degree in English was not
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. necessary because there were people without degrees teaching Communications. She also said that
the courses are very basic and that a good teacher would be able to plan and teach the courses based
on a good knowledge of English and the ability to read a textbook. She last taught Communications
in the winter of 1998. Reilly started teaching Communications around 1995 and was still teaching
it. She also said that to teach Communications a degree in English is not required. It was her
evidence that before she began to teach it she refreshed her knowledge of the subject matter by going
to the texts. She also has administered diagnostic testing but has never designed a test. Reilly said
that in her opinion, based on the grievor's résumé that the grievor could teach Communications
because she has a background in basic writing courses.
Reilly also indicated that she considered the posting to be for someone who would only teach
Communications rather than for someone like her who taught Communications along with other
subjects. She said that the tenn being used to describe the position was "specialist in
Communications" and that part of the function would be to design diagnostic tests.
Sinclair said that the position as posted set out the qualifications and experience as it did
because over a five year period the LASA program had been working to improve language skills in
accordance with the direction from the Advisory Committee and had been unsuccessful in doing so.
She said that it became clear that someone was needed who had specific expertise and background
in English, as well as extensive experience in teaching the language. Because it was necessary to
be assured that the students were achieving the desired level, someone was needed who also had
experience in developing, administering and interpreting tests. Sinclair said that the assumption and
expectation was that with that person's expertise the courses could be revised so that the students
could achieve the goals. It was Sinclair's evidence that the College was not sure that the courses
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.. they were offering in Communications in LAS A met the requirements. She said that someone was
needed who could review those courses and modify them if necessary in order to ensure that the
students were learning what was necessary. She also indicated that someone was needed who could
act as a resource to other faculty because there were people teaching Communications without
obtaining the desired results. It was the College's view that someone with the appropriate expertise
in teaching English was needed to work with the others who taught the course.
Paul Kelley, who testified on his own behalf, said that to do what is required by the position
someone should have a degree in English. He said that it is essential to know as much as possible
about what you are teaching and to have experience in writing in order to teach people how to write.
It was also his view that experience in teaching English was essential because it was necessary to
be familiar with the different ways people learn to help them get through the term with sufficient
knowledge and confidence. Kelley also indicated that experience with diagnostic tools was needed
because one had to know how to interpret the results in order to understand the needs of particular
students and how to address them.
Kelley confirmed that the Standard Diagnostic Tests are "off the shelf' tests. He said that
to interpret them it is necessary to understand how they are structured and that none of the LASA
Communications teachers understood this before. He said that the College did not have the answers
and interpretation guide for the tests, so he had to explain how to interpret them. It was his evidence
that it would be a relatively simple thing to use the guide but that it is difficult to devise the
strategies to overcome the problems uncovered by the test. He said that once you diagnose you must
then solve, and that if something has not worked the first time it is necessary to continue to devise
new strategies.
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.. So far the evidence summarized has dealt only with the posted requirements for the job and
the grievor's qualifications. In this case it is also necessary to consider what occurred both before
and after the job was posted in order to deal with all of the issues raised in the grievances.
On March 8th, before she had notice of the layoff, the grievor had applied to Dan Holland,
the Dean of the School of Business and Continuing Education, to acquire professional development
funding to obtain a certificate in Occupational Health and Safety from Ryerson University (Ex. 6).
At that time there had been rumors of layoffs circulating, but the grievor had heard nothing definite
about the fate of her position. On April 9th she wrote to Dave Butler, the Vice President Staff and
Student Services, also requesting specific funds for the Ryerson course (Ex. 7). The letter to Butler
requests that the funds be for retraining in the event that she was laid off, because at that time she
was aware that her position had not been funded and she had received no notice of assignment to
another position.
After she received her layoff notice on May 3rd she sent Butler a letter with the cost estimates
for her course at Ryerson (Ex. 14) on May 5th, and again on May 7th when she made some revisions
to the estimates (Ex. 15). The costs were eventually approved by the College and the grievor was
reimbursed for her tuition and expenses. That summer she completed six of the seven courses
needed for the certificate and was in residence at Ryerson while so doing. During the period that she
was at Ryerson communicating with her was not easy both because of her attendance at Ryerson and
some computer problems she was experiencing.
Carrying on with the chronicle of events, on May 7th the grievor also sent two written
complaints to Holland (Exs 8 & 9). Those complaints were that proper procedure had not been
followed in the matter of her layoff in that she had not been reassigned to a vacant full-time position
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" (Ex. 8), and that proper procedure has not been followed in the matter of her layoff in that she had
not been reassigned to displace a junior full-time employee. On May 8th she wrote to Sinclair
(Ex. 10) asking for a copy of any minutes of the Academic Management Team where there were
discussions about the financial basis for the decision to lay her off and about her as an individual
faculty member. In the letter she asked for a speedy reply because of time constraints involving any
possible grievances that she might file. On May 12th during a telephone conversation with the
griever Sinclair told her that no minutes were kept, and they discussed the process used by the
Academic Management Team. In that same conversation they discussed the proposed LASA
position. Sinclair told the grievor that the position was for a Communications specialist. There is
disagreement between the grievor and Sinclair about the level of education mentioned as being
required; however, it is clear that there was mention of the need for a degree in English at some level
and that Sinclair told her that she did not have the experience they were looking for. It is equally
clear that the grievor insisted that she could do the job and was advised by Sinclair that she would
be interviewed if she applied. Sinclair also undertook to send the grievor a copy of the posting once
the position was approved.
The grievor appears to have met with Holland to discuss her layoff complaints, because on
May 14th she wrote him the following note with copies to Butler and Sinclair (Ex. 21):
I apologize for the delay in responding. 1'd like to thank you for taking the time to explain
the way the layoffs were handled and the Academic Management Team meetings were
conducted. It was somewhat different than I had previously understood.
I do not wish to pursue a grievance against the College. Instead, I will be spending the
summer in a more constructive manner, working on my courses at Ryerson.
I wish you well and hopefully, we can work together again - either on a full- or part-time
basis - preferably under better financial conditions.
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. Departing from the chronology for the moment, it is not surprising that following receipt of
this letter, and in view of their May 12th conversation, Sinclair did not consider the grievor to be
grieving the decision of the Academic Management Team regarding her suitability for the LASA
position. The grievor later took issue with Sinclair's statement to that effect in a letter written on
June 17th (Ex. 2, Tab 11). Certainly the juxtaposition of these two sentences: "I do not wish to
pursue a grievance against the College," and "Instead, I will be spending the summer in a more
constructive manner, working on my courses at Ryerson," gives the impression to a reasonable
reader that the grievor was not going to grieve her layoff. The note read as a whole does nothing to
change that impression.
We heard considerable evidence about why the grievor wrote the note and phrased it in the
way she did. The grievor's view was that the note did not say she would not grieve but rather that
she "did not wish to pursue a grievance" and a reasonable person would not read it as saying
anything other than that. Admittedly, the words are arguably ambiguous; however, we have already
stated our conclusion that a reasonable reader would not readily agree with the grievor's
interpretation. The grievor said that she wrote the note on the advice of Luisa Bowry, Butler's
Executive Secretary, after being told certain things about her chances of being re-employed by the
College if she grieved. Having heard her evidence on this point as well as that of Bowry, it is
sufficient to say that we would not conclude on the basis of what we heard that Bowry gave her that
advice. The grievor made her statement about Bowry in redirect and so was not cross-examined on
it. Bowry testified and was thoroughly cross-examined. She never wavered in her denial. There
was nothing obviously incredible, illogical, or unreasonable in Bowry's account. Both the grievor
and Bowry would have equal reason to lie or to tell the truth. There is no good reason to chose one's
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account over the other. Since it is the grievor's assertion, she must prove it was said to her; that
cannot be proven. To the extent that it matters we do not accept that the grievor wrote Exhibit 21
on Bowry's advice and we do not accept that the most obvious and reasonable way to read it is as
she interpreted it to us.
Sometime around the middle of May the grievor was in Butler's office and spoke to him.
She had applied to Durham College for an appointment and Butler said in passing that his
counterpart at Durham had mentioned her name and that he had given her a good reference. The
grievor did not say anything at that time to indicate that she was upset at Butler for having done that.
On May 25th the grievor wrote to Sinclair (Ex. 2, Tab 7) expressing her interest in the LASA
position. That letter expands on the grievor's academic qualifications and experience teaching
Communications in this way:
Among the academic qualifications noted on the resume I sent you in April, I have received
credit for several university and community college level courses in Communications:
Composition and Aboriginal Literature and Christian Faith & Interpersonal Communication,
Laurentian University; Effective Written Communication for Business, University of
Winnipeg; English: Writing and Language, Carleton University; Basis Business
Communications, Red River Community College; and The "Write" Impression, a Loyalist
College PD Workshop.
I have also taught several subjects in the Office Administration Program at Loyalist, and
these courses (Business Transcription I and II, Basic Word Processing, Intermediate Word
Processing, Advanced Word Processing, Power Word Processing, and Business
Administration Support I and II) required that I have much more than a basic knowledge of
communications in the English language, especially in the area of Business Communications.
In every Office Administration course, even Personnel Administration and Introduction to
Law, I graded students not only on their skills with the word processing and dictation
equipment but also on their use of the English language. For instance, every assignment-
written or oral- was marked, not only for the content, but for the grammar skills employed,
correct and effective word usage, clarity and completeness, punctuation, mechanics (e.g.,
document choice and design, spelling, and use of hyphenation, capital letters, italics,
abbreviations, acronyms, numbers, and underlining), paragraph linkage and unity, use and
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, citing of sources, research conducted, etc. In addition, I routinely assessed the writing skills
of each student with those students requiring assistance being given remedial work as
necessary to upgrade their communication skills to the level required of an Executive
Assistant/Secretary - a field in which the ability to communicate, both in writing and orally,
is of paramount importance.
On June 13th the grievor sent Sinclair a note by E-mail (Ex. 2, Tab 8) indicating that she had
not yet received a reply to her May 25th letter and stating that she understood Sinclair wanted to
interview her and that the position description had not yet been finalized. Then on June 17th Sinclair
wrote the grievor (Ex. 2, Tab 11) sending her a copy of the posting and the general advertisement
for the position. That letter is set out below:
I wish to confirm receipt of your letter of application for the vacant LASA - English
Communications faculty position.
As you are aware, your background, education and experience was considered in relation to
this position prior to notification oflay-off and was determined not to meet the requirements.
You have advised the College that you will not be filing a grievance in relation to that
decision.
In response to your verbal enquiry, I did offer that if you applied at the time this position was
advertised, we would consider your application. I also recall that I offered you the
opportunity to be interviewed. Interviews will be scheduled on Monday, June 28, 1999.
Enclosed is a copy of the ad and the more detailed position specifications. If, having read
the information regarding the requirements for the position, you still wish to be interviewed,
it is scheduled for 9:30 a.m., Monday, June 28, 1999.
Please contact Maureen March, Secretary, School of Health and Community Services. . . by
Tuesday, June 22, 1999 at 9:30 a.m. advising whether or not you will attend the scheduled
interview, and if you intend to participate in this to receive more information about the
interview and location.
The grievor responded by E-mail that she would be at the interview. On June 25th she
received the letter dated June 24th (Ex. 12) informing her of the time and place of the interview. It
also informed her that a 15 - 20 minute micro teach was part of the interview and she would have
20
" to teach "construction of a paragraph" as if to a first semester group of 40 LASA students. That was
the first indication that the grievor had that a micro teach would be required. It was also the first
indication that any of the candidates had concerning the micro teach and topic.
The grievor arrived at the interview place at the designated time and was told that there
would be a delay. Two external members of the interview committee had just arrived and Sinclair
wanted to meet with the committee before the interviews began. The grievor indicated that she was
surprised to hear that there was to be a committee because she understood that Sinclair alone would
be interviewing her. Although asked, Sinclair would not then tell her who was on the panel.
The grievor then left and went to her office and found that the computer the College had
given her to work with was missing, that her telephone had been disconnected, her chair was gone,
everything was gone from her desk, and her books and other belongings were all in boxes.
Eventually she located the things from her desk in Holland's office, where he had taken them for
safekeeping. Although she expressed surprise at finding her office in this state, the grievor did
acknowledge that she had received the E-mail message Holland sent her on June 15th (Ex, 2, Tab 9)
about a week after it had been sent. That message infonned her that the complex where her office
was located was being renovated during the summer to become classroom space. He asked her to
remove her belongings from her office as soon as possible and preferably before June 25th. In any
event, when the grievor returned to Sinclair's office for the interview she did not mention that her
office had been disturbed or that she was upset by that.
The interview committee consisted of Sinclair, the Dean of another school in the College,
two faculty members, a recent graduate (chosen in place of a student because there was concern that
a student might know an applicant), and an external member of the Advisory Committee (Black).
21
" Prior to June 28th the internal members of the committee would have received copies of the résumés
submitted by the applicants for the purpose of preparing a short list. The grievor's name was not
included on their short list because Sinclair had already committed to interviewing her. Kelley and
another candidate were short-listed. The external members of the selection committee only saw the
résumés of those who were being interviewed. Sinclair said that prior to the interview she did not
ask Holland about any of the courses the grievor had taught because she had already done that and
had been informed generally of their content by Holland in the Academic Management Team. She
made no other inquiries prior to the interview.
Prior to interviewing the grievor, Sinclair informed the committee that the grievor was
someone she had promised to interview and that the grievor had recently received a layoff notice.
She told the committee that the grievor did not have an English degree but that she had made a
commitment to interview her. She did not tell the committee that she had already determined that
the grievor was not a fit; she considered that the interview was an opportunity for the grievor to
demonstrate her skills. The two faculty members were given the option of whether to participate in
the grievor's interview. They both declined.
Before the day of the interview Sinclair had met with the two faculty members. She said that
it was agreed that what was wanted and needed was an English language resource person and so they
worked to put together interview questions with that in mind. The subject of the micro teach was
also chosen keeping in mind that it had to be a different micro teach than the one Kelley had been
asked to do during the interview for his sessional appointment.
Prior to the commencement of the grievor's interview it was determined who should ask what
questions. The committee was also told that during the micro teach it would be role playing as first
(
22
" semester students in the program. Sinclair then went out to meet with the grievor. At that time she
told her the positions of the people on the interview committee but she did not identify them by
name until she introduced the grievor to them in the interview room. We were informed that this
is standard procedure, and we have no reason to doubt it.
The grievor conducted her micro teach. She also answered the interview questions put to her.
During the interview she was given the opportunity to expand upon her qualifications for the
position. At the end of the interview the grievor was asked if she had any questions. She asked if
there were any other internal candidates for the position. Sinclair cut off the interview at that point
and asked the grievor to join her in her office.
It would appear that Sinclair and the grievor had a short but not entirely pleasant meeting in
Sinclair's office. The grievor accused Sinclair of being patronizing and Sinclair informed the grievor
that she was not being considered as an internal candidate but was being interviewed because of the
commitment Sinclair had made to her.
Sometime on June 28th the grievor gave Sinclair a letter (Ex. 2, Tab 13). Among other things,
in that letter she informed Sinclair that her participation in the micro teach and interview were
without prejudice to any rights she may have under the collective agreement. She also took issue
with Sinclair's statement that she had advised the College that she would not grieve, and she
indicated that she had not been aware of the fact that her qualifications had been looked at before
the layoff notice was given and it had been determined that she was not a fit. We have already dealt
with the reasonableness of the conclusion Sinclair reached concerning whether there would be a
grievance filed.
After meeting with the grievor Sinclair returned to the interview room. Sinclair and Black
c
23
" were the only two witnesses who testified about what occurred then. Black's memory about what
happened was not good. He could not recall if the grievor was considered before the other
candidates or if he had the position description or many other details. All he said was that in his
view if the grievor had been the only applicant they would have had to go back and find more
because she was not at all what he envisioned the position required.
Sinclair said that she met with the members of the committee who had interviewed the
grievor separately before the rest of the committee was asked back into the room and before the other
candidates were interviewed. She said that she asked the committee for feedback and asked if the
grievor were the only candidate would they recommend her appointment. The group consensus was
that if that were the case, then the position would need to be re-advertised. She said that the views
the committee expressed were that the grievor had no understanding of the program needs and lacked
creativity. Sinclair said that in the interview the grievor had not shown her or the committee that she
had the expertise, competence, and skill to teach the courses. She also said that the grievor gave no
indication that she had the appropriate assessment tool skills or that she could be an English
language resource. Sinclair said that if the grievor had demonstrated that she would have had to re-
think her decision.
The committee then went on to interview the other two candidates. The end result was that
Kelley was offered the job and accepted it.
On June 29th the grievor filed a written complaint with Holland (Ex. 17) setting out a variety
of complaints some of which are set out in the grievances before us. Then on June 30th the grievor
wrote two letters, one to Dr. Ault, the President of the College, and one to Sinclair (Ex. 2, Tab 14
and Ex, 18 respectively). In the letter to Ault she appointed an agent for any dealings with the
24
College and informed Ault how to contact him. She then went on to state:
I am taking this rather extraordinary measure because of the stress, anxiety and discomfort
caused by my impeding (sic) layoff and the complaints and/or grievances I have felt forced
to file and may have to file in the future.
Please note: I will not accept any telephone calls or requests for information from the
College and may not be at my residence to deal with any correspondence in a timely manner.
Since I have initiated complaints/grievances against the College with the assistance of the
Faculty Union, please ensure that a copy of all correspondence concerning my layoff and/or
grievances and/or complaints is forwarded to Mr. Harry Plummer, Chief Steward. . . .
Also I understand that at least one senior College official has made inquiries of and/or
offered a personal reference on my behaIfto a potential employer; although I appreciate that
this was done with the best of intentions, I must advise you that any future unsolicited
inquiries made concerning me and/or references or information offered on my behalf to
potential employers or anyone else without my expressed consent or request will be looked
upon as a serious invasion of my privacy and will be dealt with accordingly.
Copies of that letter are shown as having been sent to Piercy, who was the Vice President Academic,
Butler, Holland, Sinclair, Plummer, her named agent, and Liz Mcgregor, who was the Director of
the Hllillan Resources Department. The grievor said that she wrote the letter because she was upset.
The reference to the "senior College official" is to Butler and the remark he had made to her about
talking to his counterpart at Durham College in May. She said that she was upset because she
considers that there is a stigma attached to being laid off by the College in that people see it as a way
to get rid of undesirables, and because there are a lot of employers who are very suspicious of a
"hard sell" and she did not ask for the reference.
The letter to Sinclair (Ex. 18) is set out below:
Subject: Distribution of Personal Information Without Consent
As you are aware, I was very surprised to find, when I attended at your office on Monday,
that you had arranged for me to be interviewed by a panel. I had no reason to suspect that
I would be interviewed by anyone other than yourself, as mentioned in your secretary's
'.
25
confmnation letters concerning that interview. I would also note that your letter of June 17
did not mention a "panel interview" either.
The fact that there were "outside" panel members was a total shock to me and your initial
reluctance to tell me who they were was even more disconcerting. Unfortunately, I was in
no condition, at the time, to appreciate just what you had done. Once the interview
commenced, I found out that these outsiders already had been given copies of my resume.
This resume had been sent to you as acting VP, Academic, and to other College officials with
the misplaced confidence that it would not be passed on indiscriminately.
I am very concerned about this breach of privacy and, understandably, concerned that there
might have been even more information given to these outsiders. Would you please give me
a complete accounting of any and all information you gave the panel members without my
expressed or even implied consent. I also wish you to forward copies of the sworn
privacy/confidentiality agreements signed by each of the outside panel members.
As I believe you might also be aware, I have initiated a number of complaints against the
College, including complaints concerning how this interview was conducted; therefore, I am
confident that you understand why I want this information and expect to receive it in a timely
manner.
I expect my agent. . . to receive your written response itemizing the requested information
within 7 working days from the date of receipt of this letter.
Copies of the letter were sent to Ault, Piercy, Butler, Holland, Plummer and her agent.
It should be noted that in connection with the grievor's expressed surprise at being
interviewed by a panel, she testified that when she was hired in 1993 she was interviewed by a panel
and that she assumes that there is an interview panel for every full-time position. Further, the
posting that the grievor was sent on June 17th stated that there would be a "selection committee".
On July 6th the grievor was informed by letter from Sinclair that she was not being
recommended for the position (Ex. 2, Tab 16).
On July 12th her agent informed the College that she was temporarily disabled from July 12th
until August 6th and requesting that her 90 day retraining period be recalculated with this in mind
(see Ex. 2, Tab 15). She resumed her studies at Ryerson on August 6th and completed six of the
26
. seven courses needed to obtain her certificate. She could not complete one course because she
commenced teaching as a sessional at Durham College on August 30, 1999.
On August 17th the grievor wrote to Holland complaining that she had not been paid her short
tern disability benefits under the collective agreement (Ex. 2, Tab 18). She had been told on July 28th
that her expenses for physiotherapy up to the limit of the insurer's coverage would be paid (Ex. 20).
There is Standard Workload Fonn (hereinafter referred to as SWF) which must be prepared
for every full-time professor. Over the College's objection, and without deciding on the merits of
that objection for the time being, the SWFs for Kelley for the fall and winter semesters of 1999
(Exs. 34 and 35) were produced. Those forms indicate that Kelley was only assigned to teach
Communications courses in both terms. In neither SWF are there complementary hours assigned
for acting as a resource, for curriculum development, or standardized testing development. Kelley
said that there would be nothing assigned for curriculum development because this is not a
curriculum but a course within a curriculum. He also said that he was hired before September 1999'
and worked on courses during the period before he started teaching. It was also the evidence that
an SWF is not produced for the non-teaching non-vacation part of the academic year, which was the
month of May for Kelley in the 1999/2000 academic year. Kelley said that during that period he
devised three reading diagnostic tests. He also said that he is responsible for all of the course
outlines for Communications and has revised them
Kelley said that he did not design a guide in connection with his diagnostic tests; instead, he
sits down with the other faculty members teaching Communications to interpret results and devise
strategies for dealing with the deficiencies. He also indicated that he sets the examinations for all
of the Communications courses and is used as an English resource by other faculty.
27
One of the grievances before us refers to the College's policy on hiring as having been
violated. That policy (Ex. 2, Tab 17) in the third and fourth paragraphs on page 1 of 5 states the
following:
The Human Resources Department will send any applications from full-time academic
employees to the Dean following the five working day posting period. The Dean will send
copies of the applications to the members of the Selection Committee. All other applications
will be held (confidential) by the Human Resources Department until after all full-time
academic bargaining unit applications have been considered. If no applicant is recommended
for hiring then the Human Resources Department will send to the Dean, applications, if any,
from academic employees laid off at other colleges, and received within ten working days
from the date of the advertisement. The Dean will send copies of these applications to the
Selection Committee.
If no applicant is recommended for hiring at the end of this process the Human Resources
Department will send to the Dean all of the remaining applications for consideration.
Alternatively, the Dean/Manager may decide to re-advertise.
And continuing at paragraphs I to 5 on page 2 of 5:
1. For full time professor/instructor positions a selection committee will be appointed
by the Vice-President, Academic and will include the Dean, program faculty and one
representative from another department of the College. This committee, as
sequenced above, will recommend those applicants who are to be interviewed, with
the final decision resting with the Dean.
2. An interview rating scheme shall be devised and agreed upon prior to the start of the
interviews. A copy of this form is to be completed and signed by each member of
the panel for each candidate interviewed. At the conclusion of the competition all
forms and related documents will be forwarded to the Human Resources Department
for short term storage.
3. All applicants for advertised and/or posted positions will be reviewed by the Dean
and a minimum of two other members of the selection committee and a short list of
applicants who are to be interviewed will be formulated.
4. All qualified internal applicants (full time) are to be interviewed by the selection
committee.
5. After reviewing the input of the committee the Dean will make the final
recommendation to the Vice-President, Academic.
28
..
The process followed by the College in filling the position in question has already been
outlined.
The above is a summary of the evidence which we heard over nine days of testimony. We
will now summarize the arguments made by counsel for our consideration.
The Union contended that either the College did not realize this was not a competition
between candidates or it chose to ignore the collective agreement. It said that the only test to be
applied is whether the grievor has the "competence, skill and experience" to fulfill the requirements
of the LASA Communications position. It argued that in meeting the concerns about the literacy of
the students the College could not ignore the collective agreement obligations. The Union's basic
assertion was that the core duties of the position should be ascertained keeping in mind the SWFs
issued to Kelley, and that they should be defined as teaching the courses assigned to Kelley. It
argued that the grievor has the "competence, skill and experience" to teach those courses, as
evidenced by the courses she taught at the College, as well as the courses she was hired to teach at
Durham in the fall of 1999 with 'the normal amount of preparation time. The Union argued that
because of Black's assertion that he wanted to pick the best one for the job, it can be seen that the
College applied the wrong test in rejecting the grievor for the position. It also asserted that the
grievorwas being held to a higher than necessary academic standard with the result of defeating her
collective agreement rights, and that there was no real assessment done of her qualifications, It
pointed out that she was told that she lacked the academic qualifications for the job, but that no other
professor who taught Communications LASA had an English degree and there was no consensus that
such a degree was needed to perform the core duties of the position. It characterized the College's
29
, , action as academic credentialism being used to defeat seniority rights. The Union also pointed out
that the absence of any reference to testing and acting as a resource on the SWFs developed for
Kelley was fatal to the College's assertion that they were core elements of the position.
The Union also argued that it was clear that in assessing the grievor's application for the
position the College failed to follow its own hiring policy. It said that the purpose of the collective
agreement is to separate out people in the bargaining unit and to consider them separately based on
the requirements of the position and not to put everyone together for interviews and assessment.
With regard to the ninety day notice issue, the Union pointed out that the College complied with
some of its obligations and did so generously. It pointed out, though, that the grievor was disabled
from July 12th to August 6th and was unable to avail herself of retraining in that period and also that
the College had no right to dismantle her office even though she was on layoff and so interfere with
her retraining rights under Article 27.
The College's position in relation to the alleged breach of its policy is that the policy is not
part of the collective agreement and so, even if it were violated, it would not give rise to a violation
of the collective agreement. It stated, however, that in any event the policy was followed in that the
grievor was considered separately from the other candidates and before the other candidates were
interviewed. Regarding the allegations that the dismantling of her office interfered with her
retraining rights, the College argued that on the facts as alleged there is no violation of the collective
agreement. It further pointed out that the College had been planning renovations to the area and
notified the grievor of its need for her space in advance of removing her belongings. It said there
was no evidence that any of this interfered with her retraining in any way. Concerning the argument
that her retraining period should be extended because of her disability, the College said that there
30
.. was no suggestion that it needed to be extended for any reason. It said that contacting the grievor
while she was at Ryerson was impossible and that she had finished her program there so there was
no violation of the agreement.
The College argued that the assessment of the grievor's "competence, skill and experience"
to do the job did not mean that there was a competition set up between her and any other candidate.
It said that the onus was on the Union to prove that the grievor had the "competence, skill and
experience" to fill the requirements of this position as established by the College with the
responsibilities decided by the College. It argued that there is more to this position than simply
teaching Communications courses and that, while in some cases the actual teaching of courses is the
core responsibility of the position, in others it is not the sole or prime bundle of duties. The College
relied on the evidence concerning the creation of the position and the problems the program was
having with the language skills of its students and graduates, which led it to conclude that it had to
do something to solve the problem, keeping in mind that its past efforts had not been good enough.
That solution was to create the new position which was to have an "expert" in Communications. The
College asserted that from the beginning the elements that were identified as being required were
a degree in English, experience in teaching English, experience in assessment tools, and the ability
to act as a resource to other faculty. It said that there was no evidence that the grievor had ever
written course outlines before or that she had ever designed or used assessment tools for English.
The College said that even assunúng that the grievor could teach the Communications courses, that
was a subsidiary element of the position and the academic leadership aspect of the position was the
most important aspect of it. It also argued that the reference to a BA in English is a proxy or
signpost for the expertise required for the position, in that what was required was someone who was
31
. well-versed in English as a discipline and who had the credibility to act as a resource. It also said
that experience in teaching English was an instant indication that the person would have the skill
needed to perform the job. The College also pointed out that the familiarity with assessment tools
was identified early on and was absolutely crucial to the position because there was a recognition
that the old methods were not good enough and that there was a need to be able to make better
assessments of students' deficiencies and needs. It was the College's position that when the core
duties and responsibilities of the position were looked at it was correct in concluding that the grievor
lacked the "competence, skill and experience" to meet its requirements. The College also pointed
out that the grievor's qualifications were examined by the CESC and no recommendation was made
that she be placed in the position. It urged us to find that the evidence did not disclose that the
grievor could step into the job and perform its core elements even if she could teach the courses.
In the course of argument the parties referred us to the following authorities: Re St. Clair
College and Ontario Public Service Employees' Union (1989), 6 LA.C.( 4th) 442 (Carter); Humber
College and Ontario Public Service Employees Union Local 562 (McKenney), (1995) unreported
; ,
(Mitchnick); Fanshawe College and Ontario Public Employees Union (Dobos), (1998) unreported
(Burkett); Ontario Public Service Employees Union and George Brown College (McAuley), (1998)
unreported (Mitchnick); Ontario Liquor Board Employees Union (Netta et al) and The Crown in
Right of Ontario (Liquor Control Board of Ontario), (1999) unreported (GSB, Mikus);
Re Workers' Compensation Board of British Columbia and Workers' Compensation Board
Employees' Union (1989),4 LA.C.(4th) 141 (Hope, B.C.); Re Chinook's Edge Regional Division
#5 and Alberta Teachers' Association, Local 17 (1996), 59 LA.C.(4th) 262 (Moreau, Alta);
Ontario Public Employees Union, Local 4200 and Loyalist College of Applied Arts and
32
.. Technology (policy Grievance - Posting Procedure), (1997) unreported (Mitchnick); Re Reynolds
Aluminum Co. Canada Ltd. and International Molders and Allied Workers Union, Local 28
(1974),5 LA.c.(2d) 251 (Schiff); Re Seneca College of Applied Arts and Technology and Ontario
Public Service Employees' Union (1996), 52 LA.C.(4th) 129 (Schiff); George Brown College of
Applied Arts and Technology and Ontario Public Service Employees Union (Willett), (I 998)
unreported (Schiff); Seneca College and Ontario Public Service Employees Union (Morgulis),
(1994) unreported (Swan), affinned on review [1996] OJ. No. 741 (O.C.J. Gen. Div.); and Ontario
Public Service Employees Union and George Brown College (Waffle), (1999) unreported (Howe).
The following provisions of the collective agreement were also cited in argument:
" 11.01 B 1 Total workload assigned and attributed by the College to a teacher shall not exceed
44 hours in any week for up to 36 weeks in which there are teaching contact hours for
teachers in post-secondary programs and for up to 38 weeks in which there are teaching
contact hours in the case of teachers not in post-secondary programs.
The balance of the academic year shall be reserved for complementary functions and
professional development.
Workload factors to be considered are:
(i) teaching contact hours
(ii) attributed hours for preparation
(iii) attributed hours for evaluation and feedback
(iv) attributed hours for complementary functions
11.01 F Complementary functions appropriate to the professional role of the teacher may be
assigned to a teacher by the College. Hours for such functions shall be attributed on an hour
for hour basis.
An allowance of a minimum of five hours of the 44 hour maximum weekly total workload
shall be attributed as follows:
33
" three hours for routine out-of-class assistance to individual students
two hours for normal administrative tasks.
11.01 G 1 Where preparation, evaluation, feedback to students and complementary functions
can be appropriately performed outside the College, scheduling shall be at the discretion of
the teacher, subject to the requirement to meet appropriate deadlines established by the
College.
11.01 G 2 Where there are atypical circumstances affecting the workload of a teacher or
group of teachers which are not adequately reflected in this Article 11, Workload, additional
hours shall be attributed, following discussion between the teacher individually and the
supervisor, on an hour for hour basis.
11.02 A 2 The SWF shall include all details of the total workload including teaching contact
hours, accumulated contact days, accumulated teaching contact hours, number of sections,
type and number of preparations, type of evaluation/feedback required by the curriculum,
class size, attributed hours, contact days, language of instruction and complementary
functions.
11.08 In keeping with the professional responsibility of the teacher, non-teaching periods are
used for activities initiated by the teacher and by the College as part of the parties' mutual
commitment to professionalism, the quality of education and professional development.
Such activities will be undertaken by mutual consent and agreement will not be unreasonably
withheld.
Such activities will neither be recorded nor scheduled except in accordance with 11.01 G 1.
14.03 A 3 Coordinator Allowance - Coordinators are teachers who in addition to their
teaching responsibilities are required to provide academic leadership in the coordination of
courses and/or programs. Coordinators report to the academic manager who assigns their
specific duties. It is understood that coordinators do not have responsibility for the
disciplining of teachers in the bargaining unit. It is not the intention of the Colleges to
require employees to accept designation of coordinator against their wishes.
Those employees who are designated as coordinators will receive an allowance equal to one
or two steps on the appropriate salary schedule. Such allowance will be in addition to the
individual's salary.
27.05 When a College plans to lay-off or to reduce the number of full-time employees who
have completed their probationary period, or plans the involuntary transfer of such
employees to other positions than those previously held as a result of such a planned lay-off
34
.. or reduction of employees the following procedure shall apply:
(i) The College will notify the Union Local President and the College Employment
Stability Committee (CESC) of the planned staff reduction and the courses, programs
or services affected.
(ii) Within seven calendar days of the receipt of such notification, the CESC shall meet
for the purpose of the College advising of the circumstances giving rise to the
planned staff reduction and the employees affected.
(iii) If requested by a member of the CESC within three calendar days following the
meeting under 27.05 (ii), the CESC shall meet within seven calendar days of receipt
of such request for the purpose of discussing the planned staff reduction, the
circumstances giving rise to the reduction, the basis for the selection of the
employees affected and the availability of alternative assignments. It being
understood that the College reserves the right to determine the number and
composition of full-time, partial-load and part-time or sessional teaching positions,
the College shall give preference to continuation of full-time positions over partial-
load, part-time or sessional positions subject to such operational requirements as the
quality of the programs, their economic viability, attainment of program objectives,
the need for special qualifications and the market acceptability of the programs to
employers, students and the community. The CESC may require that further
meetings be held.
(iv) The CESC and the parties shall maintain the confidentiality of the meetings and the
identity of all employees discussed except as specifically waived by mutual consent
of the Union Local and the College.
(v) Additional representatives of the College and the Union in equal numbers may attend
CESC meetings under 27.05 (ii) and 27.05 (iii) where requested by the CESC to
assist the committee. However, the attendance of additional persons pursuant to this
paragraph shall not cause any delay in the meetings or the notice to individuals
affected by the staff reduction.
(vi) Upon completion of its deliberations the CESC shall forward its recommendations,
if any, to the College President and the Union Local President, who shall maintain
the confidentiality of the recommendations.
(vii) When a College decides, following such meetings, to proceed with a lay-off of one
or more employees who have completed the probationary period written notice of
lay-off of not less than 90 calendar days shall be given to employees being laid off.
If requested by the employee, a College representative will be available to meet with
the employee within three calendar days to discuss the basis of the College selection
35
,. of the employees affected.
27.06 When the College decides to layoff 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.
. . .
(viii)( c) Failing placement under 27.06 (viii) (a), such employee shall be laid off with written
notice of not less than 90 calendar days. Such employee shall be granted release
from all or part of the normally assigned duties, for this period of notice, for the
purpose of engaging in retraining activities, where such release is feasible given the
normal operational requirements facing the College. Where such release is not
possible, the notice period shall be extended by up to 90 days to permit retraining and
the employee shall maintain current salary and benefits for the duration of the notice
period.
27.09 B Before hiring full-time employees, an individual who has been laid off under 27.06
will be recalled to that individual's former or another full-time position, provided that the
individual has the competence, skill and experience to fulfill the requirements of the position
concerned. Such recall entitlement shall apply during the period of two years from the date
of lay-off.
CLASS DEFINITION
PROFESSOR
Under the direction of the senior academic officer of the College or designate, a Professor
is responsible for providing academic leadership and for developing an effective learning
environment for students. This includes:
a) The design/revision/updating of courses, including:
- consulting with program and course directors and other faculty members,
advisory committees, accrediting agencies, potential employers and students;
36
" - defining course objectives and evaluating and validating these objectives;
- specifying or approving learning approaches, necessary resources, etc.;
- developing individualized instruction and multi-media presentations where
applicable;
- selecting or approving textbooks and learning materials.
b) The teaching of assigned courses, including:
- ensuring student awareness of course objectives, approach and evaluation
techniques;
- carrying out regularly scheduled instruction;
- tutoring and academic counseling of students;
- providing a learning environment which makes effective use of available
resources, work experience and field trips;
- evaluating student progress/achievement and assuming responsibility for the
overall assessment of the student's work within assigned courses.
c) The provision of academic leadership, including:
- providing guidance to Instructors relative to the Instructors' teaching
assignments;
- participating in the work of curriculum and other consultative committees as
requested.
In addition, the Professor may, from time t time, be called upon to contribute to other areas
ancillary to the role of Professor, such as student recruitment and selection, time-tabling,
facility design, professional development, student employment, and control of supplies and
equipment.
In reaching our decision we have considered only the evidence placed before us, the
arguments made by counsel, the authorities cited and the collective agreement. Because there are
five separate grievances before us, we propose to deal with them separately, except for grievances
37
, , 99DO93 and 99D097 which the parties agree raise issues which require the same test to be applied.
We also want to state at the outset that, as both parties agreed, this is not a competition situation
where the grievor's "competence, skill and experience" has to be compared to Kelley's. To put it
bluntly, we do not care, and it does not matter whether the selection committee thought that Kelley
was the better candidate. Whether he was or not is completely irrelevant. To the extent that the
College's good faith is in questions, though, we do consider that Kelley's skill, competence and
experience met the requirements of the position, That is, the College did not reject the grievor and
then hire someone who did not meet the requirements of the position.
Grievances 99D093 and 99D097
These two grievances claim that the grievor should have been assigned to a vacant full-time
position and that the College violated the collective agreement by hiring Kelley rather than recalling
the grievor. It is a matter of agreement that the test under Articles 27.06 (i) and 27.09 B is the same.
That is that if the grievor can show that she has the "competence, skill and experience to fulfill the
requirements of the position concerned" then she is entitled to be re-assigned to that position under
Article 27.06 (i) or recalled to it under Article 27.09 B. In determining that question the grievor's
"competence, skill and experience" is compared to "the requirements of the position concerned" and
to nothing else.
On the facts before us, we would conclude on balance that the grievor had the necessary
"competence, skill and experience" to teach Communications courses in LASA. That is, if given
an existing course outline and the required texts she probably could, with normal preparation, deliver
the course content to the students. We base this conclusion on the courses she taught at the College,
apparently successfully, which had significant Communications content, as well as the evidence of
38
.. Dockrill and Reilly who taught the courses without English degrees. This conclusion is further
confmned by the fact that immediately following her layoff and without any additional training in
English she was able to teach Communications courses of sufficiently similar content at Durham
College. We believe that this after the fact evidence is relevant and admissible for the purpose of
assessing the reliability of the grievor's assertions that she could teach the courses in question.
That, however, does not end the matter. It is asserted that the core duties and responsibilities
of the position went beyond the mere delivery of the existing material on the course outlines. There
is no doubt that it is the prerogative of the College to set the "requirements of the position"; that is,
generally speaking it can set the qualifications required and the duties to be perfonned subject to
whatever specific constraints there may be in the collective agreement which limit its rights in that
regard. It is also generally recognized, though, that the College cannot abuse this right so as to
defeat the seniority rights of its employees.
Several College cases dealing with the problem have been cited to us. At pages 445 and 446
of St. Clair College Arbitrator Carter made the following statements which are applicable in this
context:
. .. As we read this language it expresses an intention that the competence, skill and
experience of the displacing employee be measured against the bench-mark of the content
of the position being claimed. The problem, however, is to define the content of the position
in an objective manner so as to maintain in the lay-off situation a balance between respect
for seniority and recognition that an employer is not required to reorganize its work
assignments to accommodate the particular qualifications of a more senior employee. In
situations where job content is not well-derIDed, 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 pattern of duties that fonns the content of that position
against which the competence, skill and experience of a displacing employee must be
39
, . measured. . . .
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 of 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. . . .
Looking at the college cases cited to us, it would appear that they all dealt with existing positions
where the prime consideration was the course assignment given to the incumbent at the time of the
layoff. Therefore, most of the cases were simply asking whether the person claiming the position
could teach the courses which had been assigned to the incumbent. An exception to this usual
approach to defining core duties can be found in the George Brown (Waffle) case. In that case
Arbitrator Howe made the following findings at pages 33 and 34:
Weare 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 been limited to an isolated
instance, such as the special start-up functions perfonned 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 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.
In this case the position in question was newly created in 1999 so we have no history of
performance to look at; however, we have considerable undisputed evidence concerning the history
40
" of its creation. We have no doubt that there was a serious problem with the both the written and oral
language skills of the LASA students, and that the ability to use the language correctly and
effectively was considered to be essential to their employability in the field. We also have no doubt
that the LASA program had tried various methods of dealing with and curing this problem over the
years without achieving the desired results. With that in mind the job description at Ex. 2, Tab 11
was developed.
Looking at that job description and the evidence as a whole, it is our conclusion that rather
than requiring someone who could deliver existing Communications courses in the manner in which
they had been delivered in the past, part of the core pattern of duties of the position was also the
administration and interpretation of "standard English assessment tests as a guide to instruction and
to assisting individual students" and acting as a " resource to other program faculty in establishment
of English language skills for written and oral presentations". In our view this was considered to be
essential to the improvement of the language skills of the LASA students and must be considered
to be part of the core pattern of duties and responsibilities.
There is no evidence before us from which we can conclude that the grievor possessed the
competence, skill and experience necessary to "administer and interpret standard English assessment
tests as a guide to instruction and to assisting individual students". She has had no actual experience
in doing that and no familiarity with the types of tests available. Quite simply, she could not be
expected to walk into the job in the fall of 1999 with normal preparation and perform that key
element of the job. Further, we have no evidence from which to conclude that the grievor has the
sort of background and experience that would lead one to believe that she could probably be a
resource in the establishment of English language skills or the restructuring of the courses if needed.
41
. The ability to act as a resource implies the possession of a certain body of knowledge and expertise
in areas concerned with the "establishment of English language skills" which the grievor has not
demonstrated that she possesses.
We note that the SWFs prepared for the incumbent, Kelley, did not appear to contain any
unusual or extraordinary complementary hours and we also are cognizant of those portions of
Article 11 of the collective agreement which deal with the contents ofSWFs. We also have Kelley's
evidence about what he did in relation to the standardized tests and the resource that he has become
to the faculty. If nothing else, he is undeniably a resource concerning those tests. We do not
consider the absence of hours noted on the SWF to be fatal to the College's case. The evidence is
that some of the activity in question is carried on in the non-teaching, non-vacation period which is
not covered by a SWF. Kelley's evidence about the actual duties of the position, although they cover
a period after the layoff, is as relevant as the SWF in determining the functions of the position.
There is also no doubt that what the College wanted was an "expert" in English to cure the
problem it was having with the LASA program students. There is also no doubt that it advertised
for specific academic qualifications being "the minimum of a B.A. English with preference given
to MA (or PhD) in English Language Studies in Adult Literacy". On the evidence that was the
standard applied to the grievor when she was considered for the position by the CESC, the Academic
Management Team, and Sinclair. Quite clearly she did not meet those qualifications; however, the
question remains about whether those qualifications are appropriate.
In George Brown (McAuley) Arbitrator Mitchnick pointed out that in hiring situations the
employer has a greater latitude in setting standards than it does in a layoff situation. At pages 25 and
26 he said:
42
" . .. Again, from the point of view of how high one chooses to "set the bar", the employer
obviously has wider latitude in pursuing its "ideal" candidate in a hiring situation than (at
least under ~ clause) it does in a lay-off. If it were otherwise, we note, an employer could
use its unfettered hiring discretion to set a standard for new employees that, on an ensuing
lay-off, only those new and most junior of employees could be expected to meet. The
attempt to extend that same standard to a lay-off, in other words, once again would indirectly
transform the lay-off.clause into a comparability one, and would reduce the seniority
protection of the existing employees effectively to zero. . . .
We agree with the general proposition that qualifications cannot be used to defeat the legitimate
seniority claims of employees under Article 27. However, we also note that in the Seneca
(Morgulis) case Arbitrator Swan accepted the college's position as stated on page 10 of that
decision:
. . . the requirement for certification is not merely credentialism, but is a proxy for the kind
of involvement in the organizational, as well as theoretical, technical and practical aspects
of coaching, which is required to be qualified to teach in the diploma course.
The application to review that decision was dismissed. In a similar vein Arbitrator Schiff in George
Brown (Willett) said at page 3:
First of all, the College has set various minimum qualifications for the positions that
Willett does not satisfy. We agree with the College's argument that, once an employer has
decided on such qualifications, an arbitrator should not second-guess unless the
qualifications chosen are unreasonable or the employer acted in bad faith in choosing them.
This proposition has been long settled. . ,. He cannot satisfy the certification qualifications:
. he does not have a certificate of qualification in carpentry nor as a building code inspector.
While certification as such is not an element of "competence" or "skill", it is strongly
persuasive evidence of a high level of both. The union is always at liberty to introduce
evidence that the grievor has the competence and skill equivalent to that the particular
certificate represents. . . .
In this case the academic qualifications of "the minimum of a B.A. English with preference
given to MA (or Pill) in English Language Studies in Adult Literacy" is not on its face unreasonable
given that what the College wanted was someone who was an expert in English and could cure the
language deficiencies of its students. There is no evidence before us that the College acted in bad
43
.. faith in choosing those qualifications. It did not do so to finesse the grievor out of her seniority
rights; it did so keeping in mind the problem facing it and its lack of success in coping with that
problem in the past using people who lacked specific expertise in English. The degree is shorthand
for the sort of knowledge and expertise in proper English usage and language skills that one could
reasonably expect from someone who had been formally schooled in them. It provides credibility
to the claim that one has the competence and skill to teach English and to act as a resource in matters
relating to English language skills. It is a reasonable qualification under the circumstances.
While keeping in mind Arbitrator Schiffs direction to give deference to the employer's
setting of qualifications, it should also be noted that he said it was open to the person claiming the
job to demonstrate that he/she had the competence and skill equivalent to the formal certificate.
Further, we take note of the decisions in Workers' Compensation of British Columbia and
Chinook's Edge to the effect that experience cannot be discounted entirely In order to give full
effect to the seniority rights under Article 27 it is necessary to determine if the grievor had the
competence skill and experience that was equivalent to the sort of formal qualifications that would
signal such a competence in the English language. She did not claim that she had taken sufficient
English courses at university in order to qualify for having a major in English. She did, however,
take English courses at university and had taken other English courses. She had also taught
Communications subject matter. However, neither her formal education, nor her experience in
teaching would lead us to conclude that she could be as qualified as someone with the sort of
expertise in the language that was required for this position, given the problems the College was
trying to address. Even if we are wrong in this conclusion, we have found that in any event the
grievor lacked the competence, skill and experience to perform the core pattern of duties of the
44
.. position.
We dismiss these grievances for all of the reasons given above.
Grievance 99DO94
This grievance alleges bad faith by the College in failing to apply its hiring policy concerning
internal candidates. The Loyalist College case cited to us deals with the College's hiring policy.
That dealt with a posting situation. The decision was not dealing with a laid off employee but with
a situation where there were internal and external candidates for a job. As we read the agreed
statement of facts, the College separated the internal and external candidates, interviewed the internal
candidates first and then came to no conclusion about whether to award the position to an internal
candidate before proceeding to interview the external candidates. Arbitrator Mitchnick found that
Article 27.11 obliged the College to consider the internal applicants before going on to deal with the
external ones if the decision is made not to hire internally.
In this case Black was uncertain about the sequence of consideration; however, Sinclair, who
was chairing the selection committee, was definite that prior to interviewing the other candidates
who had been short-listed she asked the committee to consider the grievor. While Black may have
had it in his mind to choose the best candidate, there is no evidence that he was directed to do so by
Sinclair or anyone else from the College. The consensus reached by the committee was reported to
us as being that if the grievor were the only candidate they would have to re-advertise. The selection
committee was aware of the posted requirements for the job, it had the grievor's application and
résumé before it, it had interviewed her and during the interview she was given the opportunity to
expand upon her experience and qualifications, and it had witnessed her teaching style and lesson
delivery in the micro teach.
45
" The College's policy is not part of the collective agreement. It cannot amend or violate the
collective agreement. The direction from Arbitrator Mitchnick was to amend the process to conform
to the collective agreement by interviewing and considering internal candidates first and then going
on to interview and consider external candidates only if the decision is made not to hire from within.
To the extent that the College was obliged to follow a certain sequence under the collective
agreement, it appears to have done so in this case based on what we know of the other candidates.
Of prime importance, though, is that there is no violation of the collective agreement alleged in the
grievance. Therefore there is no basis for finding any violation of the collective agreement. For all
of these reasons the grievance is dismissed.
Grievance 99D095
This grievance apparently deals with the College's actions in removing the grievor's office
and belongings, and alleges that it is an interference with the progress of her retraining activities.
The College attempted to notify the grievor that the space where her office was located was
being renovated for classroom use and that if she was unable to remove her belongings by a certain
date it would take steps to remove them for her and keep them in a safe place. The attempt to notify
her was a reasonable one using E-mail, which was a reasonable mode of communications, especially
gi veil that she was using that same mode to communicate with the College. The notice given her
was reasonable. There was no indication that the College could have or should have anticipated that
the grievor would not receive the notice. None of her belongings were missing. The things that
were most valuable were put in a secure place. There is no evidence that this disruption, as
inconvenient as it may have been, in any way interfered with the progress of the grievor's retraining,
which was taking place in Toronto away from the College.
46
'. The evidence before us is that the grievor applied for and received funding to enable her to
engage in the retraining that she requested at Ryerson, and that the College was at all times co-
operative in assisting her with her retraining. We have no indication that anyone at the College ever
hindered her retraining in any way.
There is nothing before us which would lead us to conclude that the College interfered with
the grievor's retraining or was in breach of the collective agreement. The grievance is dismissed.
Grievance 99D096
This grievance alleges that the College violated the collective agreement by not extending
her retraining by an additional four weeks to accommodate the period when she was temporarily
disabled, and asks that the College be made to pay her regular salary and an amount equal to her
benefits for four additional weeks.
The evidence before us indicates that the College did pay for the grievor's physiotherapy
during this period. We have no evidence before us concerning when the College ceased paying the
grievor her salary and benefits. Th~ grievor's retraining appears to have extended beyond ninety
days from the date of her notice of layoff and it was fully paid for by the College. The grievor
successfully obtained her certificate from Ryerson.
In view of all of the evidence before us, we can find no breach of the collective agreement
and the grievance is dismissed.
t
DATED AT LONDON, ONTARIO THIS'3i) DAY OF VG~.:!iI't}Çi;2001.
þ-~......~
Gail Brent
47
"
I concur / diåEEHÜ If'? (I ~ II ,
'--~ ~
Peter Hetz, College ;}om{nee 7
I concur / dissent
í) ('-;;.~ e;;:fvT "ï TI1c..HG I) Sherril Murray, Union Nominee
SHERRIL MURRAY ~01
Grievances 99DO93 and 990097
With all due respect, this member dissents from the position of the majority.
W It is a matter of agreement that the test under Article 27.06 (i) and 27.09 B is the
same. That is that if the grievor can show she has the "competence, skill and
experience" to fulfill the requirements of the position concerned" then she is entitled
to be reassigned to that position under Article 27.06 (i) or recalled to it under Article
27.09"
As the majority finds at page 37,
"On the facts before us. we would conclude on balance, that the grievor had the
necessary
" competence, skill and experience" to teach Communications courses in LASA".
This should be a finding that ends the matter and the grievor awarded the position.
The majority errs on the following basis:
The fact that the grievor was in a lay-off/recall position, under the scheme of this
collective agreement, does' not permit the employer to "raise the bar" and elevate the
position to that of a "specialist" or "expert" when the evidence is clear that the course
material does not require such a requirement in filling this vacant position.
The result. as properly put forward in the Me Auley case. is to defeat the seniority
rights of the bargaining unit. The majority interprets the facts of this situation to view
the hiring of Mr. Kelly as a "new hire" as opposed to assigning a senior member of
the bargaining unit to a vacant position. I agree that the college has the ability to
raise the requirements of a teaching position, but only if there are not senior persons
in either lay-off or recall positions who meet the test of .competence, skill and
experience~. That is the purpose of the reference of "vacant" position within the
1
SHERRIL MURRAY ¡g¡O2
.
cascade of requirements under the lay-off and recall clauses. There are distinct and
separate clauses governing hires outside of the lay-off provisions.
In any event, even if the employer were permitted to elevate the vacant position to
requiring that of a "specialisr there is no evidence before this panel that
requirements to perform diagnostic testing required the expertise of a specialist. The
standardized tests had been administered before Mr. Kelly was hired as a sessional
as evidenced by the minutes of the Advisory committee meeting. With no disrespect
to Mr. Kelly, he is the person who chose to interpret the tests for other faculty. The
fad of the matter is that the "diagnostic tests" were off the shelf, packaged
p:-ograms. The fact that the college did not have the standard interpretive guide that
accompanies this test, cannot be used as a barrier to the grievor, as she is quite
capable of obtaining the guide herself. Further, it is clear on the face of the grievor's
resume she has the academic courses that includes measurement and evaluation of
student learning. The grievor stated for the Board that she did not have experience
in administering that particular test, not that she didn't have experience in the
construct and administration of tests and exams. Quite to the contrary, the grievor
has over six years of cOnstructing and administering tests and exams.
As Mr. Kelly testified, it is not the interpretation of the tests, it is developing the
strategies to remedy the problems identified by the tests. That is the task faced by
every teacher in every classroom across the system.
The grievor and other faculty members testified that she had acted as a resource for
her colleagues as is a standard expectation of most professors at the college.
It was common ground to all the witnesses that a B.A. in English does not
necessarily mean you can teach English. The theory put forward by the college that
the BA acts as a .. proxy. or "guide": that the "BA. signifies a mastery of the subject is
probably true in that the person with a BA has probably mastered the literature,
poetry ete commonly found in the curriculum of the university. The fact remains that
a BA in English does not address how to teach remedial grammar, spelling,
paragraph structure: the very elements we heard over and over again that were
2
SHERRIL MURRAY 14103
.
required by this student body. Therefore it cannot be said that the qualification of a
'.
BA in English is required.
The fact that many of the faculty did not want to teach "Communications" as an
entire workload, cannot be construed as they were not capable of doing so. The fact
is, none of the Professors teaching "Communications", except Mr. Kelly, has a BA in
English. The sum of the evidence would indicate that what the college and faculty
needed was one person to take on the entire "Communications" course load and
devote their "academic leadership" to the improvement of language skills to the
students of the LASA program. The fact that one faculty tried and did not want to
continue is irrelevant to the grievor's ability to take on the task.
With respect to the evidence of the SWF's; It is quite true that there are non teaching
contact weeks that do not detail the work of Professors. The fact of the matter is that
to achieve the overhaul of a program by a specialist in the field would entail a
reduction of course workload to accomplish the task. It is the evidence before us
that only minor course revisions were made. It may well be that the college has
on their wish list a candidate such as Mr. Kelly who could reconstruct the entire
"Communications" courses for all programs in the college, but that is NOT the
assignment given Mr. Kelly. Nor was the posting for a "Communications Co-
ordinator", "expert" or "specialist".
With all due respect to the Board. the fact of the matter is, the vacant position
was that of a professor who could teach remedial English.
In addition. the grievor has substantial experience in the military and justice
systems. as called for on the posting, Mr. Kelly does not.
With respect to the interview process, there is no question Ms. Sinclair and the other
members treated it as .competition". Ms. Sinclair testified that if the grievor had been
outstanding in her interview, she would have to re-think her position. The grievor had
been told by Sinclair she wasn't qualified. Magill designed a micro teach in a style
that allowed her to get across the "mastery" of the subject. The lecture method
chosen, allowed Magill to get as much information out in the twenty minutes allotted
as humanly possible. The committee found that method Wdry": a comment that goes
3
~
. SHERRIL MURRAY ~04
.
to the methodology chosen, not to the breadth and depth of the grievors knowledge
of the subject matter. The grievor wasn't expecting a "committee" to entertain. She
was expecting the Dean of the department, alone, who specifically wanted to know if
the grievor could deliver the Communications courses. The board has reviewed
those course outlines. There is no disagreement that the courses are basic. We
were presented with the "micro teach"; "How to construct a paragraph" We were
given minutes of advisory committee meetings and other documents, representing
the colleges' position which was that the students were entering college, without
basic grammar, spelling and reading skills. None of the evidence from members of
the advisory committee suggests that an expert or specialist in the field was what
they were looking for. They simply identified the fact that the students as a group,
were not performing with regards to their communications skill, to a level that an
employer required. Also, the evidence was that to provide more communications
courses, did not fit into the curriculum of objectives and outcomes to the LASA
program. In short. this is a quantity factor of needing more time to teach the skills
needed.. To add more "communications. elements. particularly on a remedial basis
(skilileve! is lower than that of expected college level English) meant reworking the
LASA curriculum requirements to accommodate the deficit in English skills. These
factors do not suggest a specialist is required. There is no evidence that the
students had leaming disabilities that required specialized teaching methods, only
that the skills had not yet been mastered. There is simply no evidence before this
Board that the actual position, is anything other than that of a professor to teach
Communications. Ms. Magill should have been awarded the vacant position.
990094
The evidence was that interviews were run as if it was a competition. Mr. Black's
evidence was in sum the "bestft candidate was awarded the job. It was clear on his
evaluation he rated the grievor on her "entertainment value~ not on whether or not
she had the ability to teach communications. Mr. Black's rating of the grievor was
also reduced because he considered the fact that she gave out "hand-outs" was
redundant. It was his "pet peeve. as it duplicated what was on the overhead. One
4
~
. SHERRIL MURRAY ¡g¡05
~..',
.
can only conclude Mr. Black did not have the expertise to adequately judge the
, .
merits of Magill's teaching abilities. The rest of the committee evaluated Magill as
"good". As a full-time teacher, there is no doubt that Magill has, as does every other
teacher, the ability to use many methods of teaching. Mr. Kelly chose to use an
interactive method. There is no question this method involves the participants to a
much greater degree. As stated above, the grievor as an internal candidate was less
concerned about demonstrating her teaching methodologies as she already had
excellent references from the college. What she had to show was the depth and
breadth of her communications knowledge, to a Dean, in a twenty - minute
presentation.
99DO95
An unfortunate set of circumstances which no doubt unnerved the grievor moments
before the interview. Nonetheless. I concur with the majority.
OODO96
The fact that the grievor was disabled during a thirty day period. should have
extended her retraining period by the corresponding four week period as per
OPSEU There a Sor e vs anshawe Colle e Michel Picher unre orted As
this member understands the evidence, the grievor was incapacitated during this
period. As she was still an employee of the college. albeit under retraining, she was
entitled to go on sick leave and resume her retraining activities when she is well
enough to do so. Therefore. her period of disability should be accommodated by the
short term leave provisions and recommenced training four weeks later. effectively
extending the retraining period by four weeks.
All of which is respectfully submitted, Sherril Murray. Union nominee
5