HomeMy WebLinkAboutUnion 16-12-121
IN THE MATTER OF AN ABITRATION
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the Union)
AND
ALGONQUIN COLLEGE (the College)
RE: Grievance Number 2015-0415-0019 – LINC Vacancy
Appearing for the Union: Wassim Garzouzi, Amanda Montague-Reinholdt, Counsel
Appearing for the Employer: Jock Climie, Counsel
Sole Arbitrator: Norm Jesin
Hearings Held: February 8, 2016, September 12, and 19, 2016,
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AWARD
The Union in this case alleges that the College has violated the collective agreement by
“failing to post and hire full time faculty positions in the area of cost centre 608 W (ACE/LINC)”.
The LINC program is a program in which the College receives funding from the federal
government to provide language instruction to newcomers to Canada. The courses are taught
year round over three 12 week semesters per year. According to the College, the funding is
insufficient to support the use of full time staff to teach under this program. As a result, the
College, with one exception, has utilized a rotation of sessional ap pointments to teach all of the
courses. (One full time bargaining unit employee also teaches in the program.) Sessional teachers
are defined in Appendix V of the collective agreement as full-time employees who teach less than
12 months in a 24 month period. They are excluded from the collective agreement.
It is the Union’s position that the use of sessional teachers in this manner violates articles
2.03 B and C of the collective agreement. These articles were not initially identified in the
grievance as the articles being violated. Indeed, it is generally the case that Articles 2.02 and 2.03
A are the articles relied on when the Union asserts that that the College has failed to give
preference to full time appointments over partial load and sessional appoin tments. However,
these articles are not available to be relied on by the Union as in the last round of collective
bargaining, the parties had agreed to a moratorium on pursuing grievances alleging a violation of
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Articles 2.02 and 2.03A. However, the moratorium does not apply to the enforcement of Articles
2.03 B and C. Those articles provide as follows:
2.03 B The College will not abuse the use of sessional appointments by combining
sessional with partial load service and thereby maintaining an employment
relationship within the College in order to circumvent the completion of the
minimum 12 months sessional employment in a 24 month period.
2.03 C If the College continues a full-time position beyond one full year of staffing
the position with sessional appointments, the College shall designate the position
as a regular full-time bargaining unit position and shall full the position with a
member of the bargaining unit as soon as a person capable of performing the work
is available for hiring on this basis.
The parties agreed to present argument on the application of Articles 2.03 B and C based
on facts that they were prepared to stipulate. Each side stipulated the facts that they would rely
on and it was agreed that I could rely on these facts for the purpose of determining the issues at
hand, however it was also agreed that any conclusions reached would be subject to the
verification of data in support of the facts stipulated.
The facts stipulated essentially confirm as indicated above, that the courses in the LINC
program are generally taught by an ongoing rotation of sessional teachers and these sessional
assignments have succeeded each other for longer than a period of one year. The Employer has
also stipulated that it has routinely provided the Union with data regarding its appointments as
required by Article 27 of the collective agreement and that such data has shown many instances
in which the Employer has assigned successive sessional appointments beyond one year to teach
in various programs. According to the Employer, notwithstanding this data, this is the first time
to its knowledge that the Union has ever grieved a violation of Article 2.03 in circumstances such
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as these. Indeed, the Employer has stipulated that it is not aware of any grievance su ch as this
being filed against any other college covered by this collective agreement.
The Union’s position is fairly straight forward. It is that by assigning successive sessional
appointments on a full time basis for longer than one year to teach courses in the LINC program,
the Employer is not required to designate those positions as full time bargaining unit positions
and must also fill those positions with members of the bargaining unit in accordance with Article
2.03 C.
It is the Employer’s position that Article 2.03 C has no application unless the Employer has
first declared the positions at issue to be full time positions. The Employer notes that on its face,
that provision applies only when a “full time position” is staffed with successive sessio nals.
Further, the Employer argues that it is within its sole discretion to determine whether a full time
position exists. Because the Employer has not designated the LINC positions taught by sessionals
as full time positions, then Article 2.03 C has no ap plication. Counsel for the Employer relied on
a number of authorities for this submission including Fanshawe College, [1993] CarswellOnt No.
6605 (H. Brown); Elgin County, [2015] CarswellOnt, No 208 (R. O. MacDowell); Loyalist College
August 3, 1995, unreported (M. Picher): (Ontario Council of Regents for Colleges of Applied Arts
and Technology (Algonquin College), [2004] CarswellOnt No. 1044 (McLaren), overturned on
Judicial Review, June 22, 2005 (unreported), (Ont. Div Ct.); and Centennial College, [1989]
CarswellOnt 4778, (Palmer, Campbell, Freedman). Counsel for the Employer requested, subject
to its submissions on estoppel as set out below, that I confine my ruling to the question of
whether I agree that it is within the discretion of the Employer to declare a full time position to
exist before Article 2.03 C can be applied. If the Emp loyer retains such discretion then the
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grievance would be dismissed. If it did not retain such discretion in these circumstances, the
hearing would then continue to consider verification of the stipulated facts and to determine the
consequences of my ruling in the circumstances.
The Employer further submits that the Union must have been aware that the Employer
has used successive sessional assignments in the past in the same manner as they are used in the
LINC program and has never grieved a violation of Article 2.03 C in the past. As a result the
Employer asserts that the Union is estopped from seeking to apply Article 2.03 C to these
circumstances. In response the Union asserts that it certainly was not aware of the use of
sessional teachers in the LINC program until after the Employer agreed to provide the data
requested by the Union and that its grievance was filed shortly after that. As regards to the
Employer’s submission that there had been no prior grievances regarding 2.03 C, the Union says
that contrary to the Employer’s assertions, it would not have been fully aware of circumstances
in which it might have been applicable. In any event, the Union notes that the collective
agreement at issue is a provincial agreement and that there can be no estoppel unless it is
established that the Union has failed to enforce Article 2.03 C on a province wide basis. The Union
submits that this is not established by the facts stipulated.
I begin by noting that although the Union grieved a violation of both Articles 2.03 B and
C, Article 2.03 B was not vigorously contested and I find it has no application in this case.
On the main issue at hand, it is my determination, on considering the wording of Article
2.03 C, that although it is within the Employer’s discretion to determine whether work is to be
scheduled and performed on a full time basis, it is not within the Employer’s discretion to deny
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the existence of a full time position, when work is required to be performed and indeed is
assigned on a full time basis. Article 2.03 C clearly states that when a “full time position” is
continued for more than a year being staffed by sessional teachers it must then be designated as
a regular full time bargaining unit position. The Employer’s interpretation would render the
clause meaningless in my view. It would mean that the Employer could routinely assign sessional
teachers on a continual basis for full time work and avoid the consequences of Article 2.03 C by
simply refusing to designate the positions being taught by sessional employees as full time
positions.
I agree with the cases cited by counsel for the Employer that it is within the Emplo yer’s
management rights to determine whether work is to be assigned and performed on a full time
basis, subject always of course to the express provisions in the collective agreement. For
example, in Elgin County, the arbitrator noted at paragraph 130 that “The law is very clear … in
order to restrict management’s right to assign work … there must be specific language in the
collective agreement to that effect.” In Loyalist College, arbitrator explained the principle in the
following passage at page 8:
Subject to any contrary provision in the terms of the collective agreement, it is
generally accepted that it is within the discretion of the employer to determine
whether a vacancy exists, in the sense of deciding that there is a job within the
bargaining unit to be filled. For example, if a given employee retires or quits, it
does not necessarily follow that a vacancy exists if the employer determines that
the work which he or she previously performed can be discontinued, redistributed
among other bargaining unit employees or accomplished by some other means
not otherwise prohibited by the collective agreement. …
Greater difficulty exists where the employer takes steps which evidence its
view that there is in fact a job of work to be done such that a vacancy can arguably
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be said to exist. … if a given bargaining unit employee retires or quits, and the
employer creates a new supervisory position which involves little more than the
duties previously performed by the employee, it becomes more difficult to refute
the argument that a vacancy existed and should have been posted …
In the case at hand it is clear that the positions at issue are “full time positions”. The
positions are staffed by sessional teachers who are defined as “full time employee[s] appointed
on a sessional basis”. By assigning the work to sessionals, the Employer has indeed determined
that the positions are full time within the meaning of Article 2.03 C. Because sessionals are
excluded from the bargaining unit the Employer may continue to assign sessionals to these full
time positions subject to its obligation to give preference to full time bargaining unit employees
in accordance with Article 2.03 A (not relevant here) and subject to any restri ction contained in
Article 2.03B or C. Whatever other argument the Employer may have, it cannot avoid the
conclusion that the assignment to sessionals in the LINC program is an assignment to “full time
positions” within the meaning of Article 2.03 C.
It is the position of the Employer that the analysis I have outlined above is inconsistent
with previous decisions under this collective agreement in Fanshawe College in Algonquin
College. The decision in Fanshawe College dealt with a sessional employee who was laid off
before attaining 12 months of work in a 24 month period. The grievor was teaching in an ESL
program and the Union claimed there was sufficient work for the Employer to have assigned the
grievor on a permanent full time basis. In that context the arbitrator stated at paragraph 12, that
“the College has a discretion to create and declare the existence of a full time position.” The
arbitrator went on to conclude that as the grievor was assigned less than 12 months in a 24 month
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period at the time of the grievance and positions in ESL were being eliminated, there was no full
time position for which the grievor’s appointment could have been extended.
There is no analysis in that decision of the question before me – namely whether the
Employer can avoid the consequences of Article 2.03 C by simply neglecting to declare that a
position being filled by sessionals on a continuing basis of longer than one year is in fact a full
time position. I therefore do not agree that this decision should lead to me to a different
conclusion than the one I have reached in this case.
In Algonquin College the grievor was employed as a sessional teacher in a training
program provided by the College for GM employees. In order to avoid the consequences of
Article 2.03 B the College required the grievor to convert his status to that of independent
contractor during the training program and later his assignment was terminated. He insisted he
should be made a full time employee. The Arbitrator concluded, among other things, that the
grievor was indeed an employee rather than an independent contractor but because he accepted
the designation as independent contractor which was clearly made for the purpose of avoiding
the consequences of Article 2.03 B, he was estopped from pursuing his claim for bargaining unit
status. In paragraph 25 of the decision there is an analysis which seems to conflate the impact of
2.03 A and 2.03 C. The arbitrator concluded that, among other things, that the Employer was
operationally justified in staffing the position with sessionals rather than with regular bargaining
unit staff. In any event, the decision was critically analysed on review and was overturned in the
Divisional Court for reasons unrelated to the issue at hand. Still, I do not find the decision of
assistance in my determination of this matter.
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To summarize, it is my determination that if the Employer has required the teaching of
courses to be performed on a full time basis by sessionals, as it has under the stipulated facts in
this case, that the positions are in fact full time positions within the meaning of Article 2.03 C,
regardless of whether the Employer has formally designated the positions as full time.
On the question of estoppel, I do not find that the evidence stipulated is sufficient to find
estoppel on a province wide basis. Still I do agree that the fact that this local has never grieved
Article 2.03 C in the past is to be considered. This is especially so, given that the Union is routinely
given data that shows that continuing successive sessional assignments of longer than one y ear
are routinely made by the Employer. If this is verified, then arguably the Union would be
estopped from claiming retrospective relief. That is if the verified data supports the factual basis
put forward by the College, those facts would have amounted to a representation that the Union
would not grieve an ongoing assignments of sessional appointments under Article 2.03 C.
However, in my view, that estoppel would be ended by the grievance so that assignments
following the grievance would have to comply with what I find to be the clear wording of Article
2.03 C.
Given my conclusions thus far there are still a number of items to be determined. First,
on agreement of the parties, the facts stipulated by the parties are subject to verification. Second,
the consequences of my conclusion are still be determined. For ex ample, what is the interplay
between Articles 2.03 C and A. If it is determined that 2.03 C applies does the Employer retain
the ability to assign a combination of sessionals and/or partial load employees where operational
requirements dictate in accordance with articles 2.02 and 2.03 A. These are matters that are still
left to be determined.
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Having regard to the foregoing, the matter is remitted back to the parties. I remain seized
to schedule further hearings to determine these outstanding issues at the request of either party.
Dated at Toronto, ON this 8th day of December, 2016.
______________________
Norm Jesin