HomeMy WebLinkAboutGunter 15-10-15In the Matter of an Arbitration
Pursuant to the Colleges Collective Bargaining Act
Between:
FANSHAWE COLLEGE OF APPLIED ARTS AND TECHNOLOGY
(the Employer/College)
- and –
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(the Union)
Grievance of Stephanie Gunter
OPSEU Grievance File No. 2015-0110-0014
INTERIM AWARD – REVISED AND RE-ISSUED SEPTEMBER 19, 2016
PAULA KNOPF - ARBITRATOR
APPEARANCES
For the Employer: Robert Atkinson, Counsel
Jerry Tapley
Kathy Wayne
For the Union: Mihad Fahmy, Counsel
Darryl Bedford
Mark Feltham
Stephanie Gunter
The hearing of this matter was held in London, Ontario on September 30, 2015 .
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P R E F A C E
My Interim Award that follows was issued on October 15, 2015. The Parties
have brought to my attention the fact that the Award might be misapplied or
misinterpreted because it did not take into account Article 11.02 F 12.
To their credit, the parties have entered into Minutes of Settlement regarding the
grievance that gave rise to my Award. Those Minutes emphasize that Article 11
of the Collective Agreement does not apply to Partial Load Instructors as is made
explicit in Article 11.02 F 12. Therefore my Award should be read with that in
mind. Accordingly, I am re-issuing my Award with the parties’ following Minutes
adopted as the Preface.
B E T W E E N:
Fanshawe College
(hereinafter the ―College‖)
- and –
ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION, LOCAL 110
(hereinafter the ―Union‖)
- and –
Stephanie Gunter
(hereinafter ―the Grievor‖)
MINUTES OF SETTLEMENT
WHEREAS the Grievor and the Union filed a grievance on July 15, 2015 alleging
that the College’s calculation of her insurable hours of employment, as
documented on her Record of Employment, was contrary to the Collective
Agreement;
AND WHEREAS a hearing was held on September 30, 2015 before Arbitrator
Paula Knopf regarding the College’s preliminary objection to the arbitrator’s
jurisdiction to determine the essential issue(s) raised by the grievance;
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AND WHEREAS Arbitrator Paula Knopf issued a Preliminary Award dated
October 15th, 2015;
AND WHEREAS the College and the Union agree that the Preliminary Award
may be misinterpreted;
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. The College and the Union recognize and agree that Article 11 of the
Collective Agreement does not apply to Partial Load Instructors as is
made explicit in Article 11.02 F 12.
2. Paragraph 1 does not affect the Union’s continued position that the
formula contained in Article 8.04 B, which multiplies each teaching contact
hour by a factor of 2.17, is not the appropriate formula by which to
calculate a Partial Load Instructor’s insurable hours of employment.
3. The Grievor and the Union withdraw the Grievance without prejudice.
4. These Minutes of Settlement shall be issued by Arbitrator Knopf as an
Addendum to the Preliminary Award, on consent of the parties.
DATED at London, Ontario, this __19th__ day of September, 2016.
FOR THE COLLEGE:
______________________________
DATED at London, Ontario, this __19th__ day of September , 2016.
FOR THE UNION:
__________
DATED at London, Ontario, this __19th__ day of September , 2016.
”Stephanie Gunter”____________
Stephanie Gunter
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The Grievor was employed as a partial load professor. At the end of her
appointment, she was issued a Record of Employment [ROE] on May 5, 2015
indicating that she had worked for 629.30 ―insurable hours‖. The ROE is the
basis upon which a person makes a claim for Employment Insurance. Eligibility
for Employment Insurance is dependent on a number of factors, including the
number of hours of ―insurable employment.‖ The figure of 629.30 hours is
insufficient to qualify for Employment Insurance in the region where the Grievor
was employed. As a result, her application for Employment Insurance was
turned down.
A grievance was filed after the Grievor was denied Employment Insurance
benefits. The grievance seeks an order requiring the Employer to issue a revised
ROE. This Preliminary Award deals with the Employer’s objection to an
arbitrator’s jurisdiction to determine the essential issue(s) raised by this
grievance.
The Union asserts that the Employer used an ―arbitrary and unreasonable‖
method to calculate the Grievor’s hours of insurable employment. The Union
submitted that the Employer should have used the Workload formula contained
in Article 11 that takes into consideration teaching contact hours as well as
preparation, evaluation, feedback and complementary functions. Instead, the
College used the formula contained in Article 8.04B that deals with how much
credit a teacher will be given for time spent on Union business for purposes of
the calculation of workload hours. That provision uses a formula that multiplies
each teaching contact hour by a factor of 2.17.
The remedy requested by the Union is that the Employer be required to issue a
revised ROE ―that is an accurate reflection‖ of the Grievor’s employment during
the relevant period.
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The Submissions of the Parties
The Employer acknowledges that it has a duty under the Employment Insurance
Act, S.C. 1996, c.23, to provide a ROE reporting the number of hours that a
professor has worked and that this should reflect both the number of teaching
hours and other responsibilities. It was said that for over 20 years, most of the
Colleges in this province have followed advice of the College Employer Council
for the Colleges of Applied Arts and Technology to use the formula of 2.17 times
the number of teaching contact hours for purposes of the ROE. The rationale
behind this was said to be, in part, because partial load teachers are paid on the
basis of an hourly rate for each teaching contact hour.
The College pointed out that the Grievor’s proper forum to challenge the denial of
her Employment Insurance benefits is to appeal the denial in accordance with the
Employment Insurance Act, not to file a grievance. The Employer submitted that
the essential issue in this grievance is the number of insurable hours that the
Grievor worked and therefore does not ―arise‖ out of the Collective Agreement.
The Employer argued that the question of ―insurable hours‖ falls within the
exclusive jurisdiction of the Federal Minister of Revenue (CRA) pursuant to the
Employment Insurance Act. The Employer relies on the following cases that
affirm the CRA’s jurisdiction over the issue of how many hours an insured person
has had of insurable employment: Canada (Attorney General) v. Haberman,
2000 CarswellNat 1594; Canada (Attorney General) v. Tuomi, 2000 CarswellNat
2281; Banwait v. Metropolitan Toronto Police, 2001 CAF 326, 2001 FCA 326,
109 A.C.W.S. (3d) 841; Canada (Attorney General) v. Thiara, 2001 CAF 386,
2001 FCA 386; and Canada (Attorney General) v. Romano, 2008 CAF 117, 2008
FCA 117.
The Employer stressed that this Arbitrator has no authority to make any ruling
that would affect a claim that falls within the exclusive jurisdiction of the CRA to
decide. Anticipating the Union’s submissions, it was argued that the Employment
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Insurance Act should not be viewed as an employment related statute that falls
within the jurisdiction of an arbitrator to apply, interpret or enforce. Instead, the
Employer pointed out Employment Insurance is a social benefit, administered
and payable under Federal legislation, unlike the Human Rights Code or the
Occupational Health and Safety Act that impose duties upon an employer that
affect the administration and application of collective agreements. In support of
these submissions, the Employer relied on Morin et al. ats Attorney General of
Quebec et al. 2004 SCC 39 (CanLII); and Charette ats Attorney General of
Quebec et al. 2004 SCC 40 (CanLII).
The Employer suggested that this grievance is simply an ―end run‖ to avoid the
Employment Insurance legislation and that the Grievor’s avenue for recourse is
to file an appeal under that Act, not to pursue her claim at arbitration.
The Submissions of the Union
The Union asserted that the grievance is not about the denial of the Employment
Insurance claim. The Union characterized the grievance as a dispute about how
the insurable hours should be calculated and reported. The Union suggested
that in order to resolve this grievance, this Arbitrator will be called upon to
interpret Regulation 332, s.10(3), under the Employment Insurance Act, as well
as the Collective Agreement. It was said that this would require an examination
of the Grievor’s terms and conditions of employment under the Collective
Agreement to see what provisions should be used to arrive at the number of
hours of insurable earnings. For this purpose, the Union argued that the
Employment Insurance Act is an ―employment related‖ statute that has been
incorporated into the Collective Agreement in accordance with the principles set
out in Parry Sound (District) Social Services Administration Board and OPSEU,
Local 324, [2003] 2 S.C.R. 157.
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From a policy perspective, the Union argued that an arbitration hearing under this
Collective Agreement is the best forum to determine the number of hours that a
partial load teacher works because an arbitrator who is familiar with this
Collective Agreement would be better able to understand the nature of a partial
load appointment, how these teachers carry out their duties and the importance
of the Standard Workload Form (SWF). Recognizing the jurisdiction of the CRA
to determine a question of ―insurable hours‖, the Union argued that this authority
is ―concurrent‖ with an arbitrator’s jurisdiction to declare that the Employer has
used an arbitrary and unreasonable factor in reporting the number of hours on
the ROE. In support of this the Union relied upon Cambrian College of Applied
Arts and Technology v. OPSEU (Starkes), [2015] O.L.A.A. No. 22 (Bendel).
Responding to the College’s cases that speak about the ―exclusive jurisdiction‖ of
the CRA over the issue of hours of insurable employment, the Union pointed out
that those cases dealt only with a choice between the CRA and an Umpire or
Board of Referees. It was said that those cases have no applicability to a
question of whether there is concurrent jurisdiction for both the CRA and an
arbitrator called upon to determine a question of hours of employment.
Therefore, the Union urged this Arbitrator to take jurisdiction over this grievance
and not to defer the matter to the CRA.
The Employer’s Reply Submissions
The Employer asserts that the essential nature of this grievance is the number of
insurable hours of employment for purposes of the Employment Insurance Act,
something outside the authority and jurisdiction of a labour arbitrator appointed
under this Collective Agreement. It was suggested that if an arbitrator could
decide this case, it would imply that an arbitrator could take jurisdiction under
other social benefit legislation, such as the Workers Safety and Insurance Act
where there is also a whole statutory mechanism to determine eligibility and
administer claims. It was stressed that people who claim Employment Insurance
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should use the appeal mechanism available under that Act to appeal any denials.
Finally, it was stressed that the Collective Agreement is silent about the number
of insurable hours of employment. Therefore, it was said the number of insurable
hours can and should only be decided under the Employment Insurance
legislative scheme. Accordingly, the Employer urged this Arbitrator to decline
jurisdiction over this matter.
The Decision
In order to address the parties’ submissions the Collective Agreement and the
applicable legislation must be examined.
The Collective Agreement does not contain anything that speaks to insurable
hours. However, the Employer has argued that Article 8.04B establishes the
proper factor for purposes of an ROE and the Union asserts that Article 11
should be used. Respectively, they read as follows:
8.04 B In recognition that resolution locally as referred to in 8.04 A may
not be possible for a variety of reasons, the parties agree to the following
basis for reduction in teaching or work assignments to facilitate
assistance to employees and the Union Local in the administration of this
Agreement and the business directly pertinent
thereto:
(i) In each College, there shall be a reduction of up to 30 teaching
contact hours per week (as selected by the Union Local) that would
otherwise have been assigned. For these hours the Union Local shall
reimburse the College for 25% of the base salary portion of the first 15
hours. The Union Local shall reimburse the College for 50% of the base
salary portion of the next 15 hours. In the case of a Librarian or
Counsellor, three hours of work or assignment shall be deemed
equivalent to one teaching contact hour for the purpose of this Article
only. For the purposes of workload calculation, each teaching contact
hour shall be credited as 2.17 workload hours to be recorded on the
Standard Workload Form (SWF).
11.01 A Each teacher shall have a workload that adheres to the
provisions of this Article.
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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
Article 11 continues by setting out a detailed set of formulas for how each of
these workload factors are to be attributed to a teacher for purposes of
determining his/her total workload.
The relevant provisions of the Employment Insurance Act are as follows:
INTERPRETATION
Definitions
2. (1) In this Act,
―board of referees‖
―board of referees‖ [Repealed, 2012, c. 19, s. 240]
―Commission‖
―Commission‖ means the Canada Employment Insurance Commission;
―Insurable earnings‖
―Insurable earnings‖ means the total amount of the earnings, as
determined in accordance with Part IV, that an insured person has from
insurable employment
―Minister‖
―Minister‖ means the Minister of Employment and Social Development,
except in Parts IV and VII;
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PART IV
INSURABLE EARNINGS AND COLLECTION OF PREMIUMS
INTERPRETATION
Definitions
81. In this Part,
―authorized person‖
―authorized person‖ means a person authorized by the Minister for the
purposes of this Part;
―Minister‖
―Minister‖ means the Minister of National Revenue.
RULINGS AND APPEALS
Request for ruling
90. (1) An employer, an employee, a person claiming to be an employer
or an employee or the Commission may request an officer of the Canada
Revenue Agency authorized by the Minister to make a ruling on any of
the following questions: . . . .
(d) how many hours an insured person has had in insurable employment;
(2) The Commission may request a ruling at any time, but a request by
any other person must be made before the June 30 following the year to
which the question relates.
(3) The authorized officer shall make the ruling within a reasonable time
after receiving the request.
90.1 If a question specified in section 90 arises in the consideration of a
claim for benefits, a ruling must be made by an autho rized officer of the
Canada Revenue Agency, as set out in that section.
91. An appeal to the Minister from a ruling may be made by the
Commission at any time and by any other person concerned within 90
days after the person is notified of the ruling.
93(3) The Minister shall decide the appeal within a reasonable time after
receiving it and shall notify the affected persons of the decision.
94. Nothing in sections 90 to 93 restricts the authority of the Minister to
make a decision under this Part or Part VII on the Minister’s own initiative
or to make an assessment after the date mentioned in subsection 90(2).
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OBJECTION AND REVIEW
Appeal to the Tax Court of Canada
103. (1) The Commission or a person affected by a decision on an
appeal to the Minister under section 91 or 92 may appeal from the
decision to the Tax Court of Canada in accordance with the Tax Court of
Canada Act and the applicable rules of court made thereunder within 90
days after the decision is communicated to the Commission or the
person, or within such longer time as the Court allows on application
made to it within 90 days after the expiration of those 90 days. . .
104. (1) The Tax Court of Canada and the Minister have authority to
decide any question of fact or law necessary to be decided in the course
of an appeal under section 91 or 103 or to reconsider an assessment
under section 92 and to decide whether a person may be or is affected
by the decision or assessment.
(2) Except as otherwise provided in this Act, a decision of the Tax Court
of Canada or the Minister and a ruling of an authorized officer
under section 90 are final and binding for all purposes of this Act.
(3) If, on an appeal to the Tax Court of Canada from a decision of the
Minister, a person affected by the decision is requested by the Court to
attend before it on the consideration of the appeal and so attends, the
person shall be paid such travel and other allowances, including
compensation for loss of remunerative time, as are approved by the
Treasury Board.
105. The decision of the Tax Court of Canada under section 103 is final
and, except for an appeal under the Federal Courts Act, is not subject to
appeal to or review by any court.
PART VI
ADMINISTRATIVE PROVISIONS
ADMINISTRATIVE REVIEW
111. The Commission may rescind or amend a decision given in any
particular claim for benefits if new facts are presented or if it is satisfied
that the decision was given without knowledge of, or was based on a
mistake as to, some material fact.
112. (1) A claimant or other person who is the subject of a decision of t he
Commission, or the employer of the claimant, may make a request to the
Commission in the prescribed form and manner for a reconsideration of
that decision at any time within
(a) 30 days after the day on which a decision is communicated to them;
or
(b) any further time that the Commission may allow.
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(3) On an appeal, the Tax Court of Canada
(a) may vacate, confirm or vary a decision on an appeal under section
91 or an assessment that is the subject of an appeal under section 92;
(b) in the case of an appeal under section 92, may refer the matter back
to the Minister for reconsideration and reassessment;
(c) shall notify in writing the parties to the appeal of its decision; and
(d) give reasons for its decision but, except where the Court deems it
advisable in a particular case to give reasons in writing, the reasons
given by it need not be in writing.
113. A party who is dissatisfied with a decision of the Commission made
under section 112, including a decision in relation to further time to make
a request, may appeal the decision to the Social Security Tribunal
established under section 44 of the Department of Employment and
Social Development Act.
114. (1) If a claim for benefits is allowed by the General Division of the
Social Security Tribunal established under section 44 of the Department
of Employment and Social Development Act, benefits are payable in
accordance with the decision of the Tribunal even though an appeal is
pending, and any benefits paid under this section after the Tribunal’s
decision are to be treated as having been duly paid and are not
recoverable from the claimant, even if the final determination of the
question is adverse to the claimant.
(2) Subsection (1) does not apply
(a) if the appeal to the Appeal Division of the Social Security Tribunal
was brought within 21 days after the day on which the decision of the
General Division of the Social Security Tribunal was given and on the
ground that the claimant ought to be disentitled under section 36; and
(b) in any other case that the Commission may, with the approval of the
Governor in Council, prescribe by regulation.
Employment Insurance Regulation SOR/96-332
PART I
BENEFITS
HOURS OF INSURABLE EMPLOYMENT — METHODS OF DETERMINATION
9.1 Where a person's earnings are paid on an hourly basis, the person is
considered to have worked in insurable employment for the number of
hours that the person actually worked and for which the person was
remunerated.
10. (1) Where a person's earnings are not paid on an hourly basis but the
employer provides evidence of the number of hours that the person
actually worked in the period of employment and for which the person
was remunerated, the person is deemed to have worked that numbe r of
hours in insurable employment.
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(2) Except where subsection (1) and section 9.1 apply, if the employer
cannot establish with certainty the actual number of hours of work
performed by a worker or by a group of workers and for which they were
remunerated, the employer and the worker or group of workers may,
subject to subsection (3) and as is reasonable in the circumstances,
agree on the number of hours of work that would normally be required to
gain the earnings referred to in subsection (1), and, where they do so,
each worker is deemed to have worked that number of hours in insurable
employment.
(3) Where the number of hours agreed to by the employer and the
worker or group of workers under subsection (2) is not reasonable or no
agreement can be reached, each worker is deemed to have worked the
number of hours in insurable employment established by the Minister of
National Revenue, based on an examination of the terms and conditions
of the employment and a comparison with the number of hours normally
worked by workers performing similar tasks or functions in similar
occupations and industries.
Having set out the contractual and legislative scheme that informs the parties’
submissions, it is important at the outset to acknowledge what this Arbitrator
cannot do. This Arbitrator cannot make a ruling about ―how many hours a person
had in insurable employment‖ for purposes of determining eligibility for
Employment Insurance. That is a determination or ruling to be made by an
officer of the CRA, as clearly stated in sections 90(1)(d) and 90.1 of the
Employment Insurance Act. The avenue to challenge such a ruling is to the
Minister of National Revenue which is the CRA, s. 81 and 91 of the same Act.
An appeal then lies to the Tax Court of Canada, s. 103. The authority of the CRA
over the determination of hours of eligible employment has been solidly affirmed
and protected by the Federal Court in the decisions cited by the Employer: A-G
Canada v. Haberman; A-G Canada v. Tuomi; Banwait v. Metropolitan Toronto
Police; A-G Canada v. Thiara; and A-G Canada v. Romano, supra. They all say
that the calculation of the number of hours worked must be decided by an officer
of the Canada Revenue Agency (or its predecessor).
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However, as the Union correctly pointed out, those cases all concerned
questions between the CRA (or its predecessor) and a Referee (or Umpire) as to
which one had the authority to decide a question concerning insurable hours.
None of those cases address the question of concurrent jurisdiction raised by the
Union’s argument in this hearing. To that point, the case of Quebec
(Commission des Droits de la Personne et des Droits de la Juenesse) Morin v.
Quebec (Attorney General), supra, is relevant. That case explained the impact of
the Supreme Court’s earlier decision in Weber:
7 There is no easy answer to the question of which of two possible
tribunals should decide disputes that arise in the labour context where
legislation appears to permit both to do so. As explained in Weber v.
Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929, three
outcomes are possible.
8 The first possibility is to find jurisdiction over the dispute in both
tribunals. This is called the ―concurrent‖ jurisdiction model. On this
model, any labour dispute could be brought before either the labour
arbitrator or the courts or other tribunals.
9 The second possibility is the ―overlapping‖ jurisdiction model. On this
model, while labour tribunals consider traditional labour law issues,
nothing ousts the jurisdiction of courts or other tribunals over matters that
arise in the employment context, but fall outside traditional labour law
issues.
10 The third possibility is the ―exclusive‖ jurisdiction model. On this
model, jurisdiction lies exclusively in either the labour arbitrator or in the
alternate tribunal, but not in both.
11 Weber holds that the model that applies in a given situation depends
on the governing legislation, as applied to the dispute viewed in its
factual matrix. In Weber, the concurrent and overlapping jurisdiction
approaches were ruled out because the provisions of the Ontario Labour
Relations Act, R.S.O. 1990, c. L.2, when applied to the facts of the
dispute, dictated that the labour arbitrator had exclusive jurisdiction over
the dispute. However, Weber does not stand for the proposition that
labour arbitrators always have exclusive jurisdiction in employer-union
disputes. Depending on the legislation and the nature of the dispute,
other tribunals may possess overlapping jurisdiction, concurrent
jurisdiction, or themselves be endowed with exclusive jurisdiction; see,
for example, Goudie v. Ottawa (City), [2003] 1 S.C.R. 141, 2003 SCC 14
(CanLII); Brotherhood of Maintenance of Way Employees Canadian
15
Pacific System Federation v. Canadian Pacific Ltd., 1996 CanLII 215
(SCC), [1996] 2 S.C.R. 495. As stated in Weber, supra, at para. 53,
―[b]ecause the nature of the dispute and the ambit of the collective
agreement will vary from case to case, it is impossible to categorize the
classes of case that will fall within the exclusive jurisdiction of the
arbitrator.‖
………………
25 …….. This Court has recognized that arbitrators may resolve legal
issues incidental to their function of interpreting and applying the
collective agreement: Parry Sound (District) Social Services
Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R.
157, 2003 SCC 42 (CanLII). Moreover, s. 100.12 of the Labour
Code specifically confers on the arbitrator the authority to interpret and
apply any Act necessary to settle a grievance.
The Colleges Collective Bargaining Act confers a broad jurisdiction on an
arbitrator to interpret and apply human rights and other employment related
statutes, despite any conflict between those statutes and the terms of the
collective agreement, s. 14(12)(j). However, it cannot be said that the
Employment Insurance Act is an ―employment related‖ statute. It deals with
unemployment or absence from employment. It confers a social benefit and a
mechanism to administer that benefit for people whose employment is terminated
or suspended. It imposes reporting requirements on employers, but the benefits
and rights are administered outside of the purview of an employer’s control. If
someone is eligible for benefits, they are not paid out by the employer. Unlike
Human Rights or Occupational Health and Safety legislation, the Employment
Insurance Act does not impose duties that could be said to be incorporated into a
collective agreement to ensure that it is applied and administered in accordance
with the law.
Further, the Supreme Court has also cautioned that where a legislature creates a
tribunal with exclusive jurisdiction to confer a social benefit, together with a
comprehensive administrative scheme to assess and determine claims, the
specialized tribunal will be the only one that can apply and interpret that scheme;
see Quebec (Attorney General) Charette and Quebec Human Rights Tribunal,
16
(Charette), supra. That was a case where a claimant was told that she could not
challenge the denial of social benefits at the Quebec Human Rights Commission,
despite the fact that her claim included allegations of discrimination. It was ruled
that her claim could only be determined by the tribunal that had exclusive
jurisdiction over the benefit she had claimed.
However, it must be pointed out that the Employment Insurance Act does not
contain any language that indicates that the authority of the CRA over the
determination of the hours in insurable employment is ―exclusive.‖ The
Employment Insurance Act does not confer exclusivity on its tribunals unlike the
statute under consideration in Charette, supra, or, for example, the Ontario
Workplace Safety and Insurance Act.
Therefore, it is clear that this Arbitrator has no authority to make any decision
that will determine or resolve any question of the Grievor’s hours ―in insurable
employment‖ for purposes of Employment Insurance. However, that still leaves
the question of whether this Arbitrator has the authority to interpret and apply any
provision in the parties’ Collective Agreement that can resolve the essential
nature of the dispute raised by the grievance.
It is the factual context of a dispute that determines its essential character. The
grievance seeks a revised ROE. It does not seek the insurance benefit. The
Grievor’s complaint is that the Employer has improperly calculated and reported
her hours of work. As the Weber case, cited in Morin, supra, instructs, the
question is whether the dispute, in its essential character, arises from the
interpretation, application, administration or violation of the collective agreement [at.
para 52]. To determine that, the arbitrator must look at whether the conduct giving
rise to the dispute between the parties arises either expressly or inferentially out of
the collective agreement [at para. 68].
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The essential character of this grievance is a dispute about how to calculate the
number of hours worked by the Grievor. The issue of hours of work is a matter that
is dealt with in this Collective Agreement. Unlike the more typical contracts where
there is a standard hours of work clause, these parties have had to craft language
that addresses the demands and unique environment of an educational institution.
This is why Article 11 is so elaborate and takes into consideration so many factors.
The computation of hours of work is an issue that these parties take very seriously.
That is why they have the SWFs and have adopted a formula to deal with release
time for Union business in Article 8. Nothing in the Collective Agreement requires
the College to issue an ROE or specifies how it should compute or report the
number of hours worked. However, the Collective Agreement does deal with the
calculation of hours of work for the purpose of defining the terms and conditions of
employment. Since an employer is required to issue an ROE under the
Employment Insurance Act and since the calculation of hours of work is the subject
matter of the Collective Agreement, the issue of the reporting of hours of work is an
issue that arises inferentially under the Collective Agreement. Quite simply, there is
an obvious requirement to report the number of hours worked accurately by any
employer. Whether those hours are the hours that the CRA would consider hours
of ―insurable employment‖ is not for an arbitrator under this Collective Agreement to
decide. However, an arbitrator does have the authority to determine whether the
Employer has properly interpreted and applied the hours of work provisions in this
Collective Agreement. What the College reports for any purpose that affects an
employee’s rights is an issue that arises inferentially from the Collective Agreement
and must be resolved in order to address the essential issue of this grievance.
Accordingly, for the reasons set out above, it must be concluded that I do have
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jurisdiction to hear and determine this grievance. The matter shall be reconvened
for a hearing at the request of either party.
Dated at Toronto this 15th day of October, 2015
____________________________
Paula Knopf - Arbitrator