HomeMy WebLinkAboutDuder 17-01-24BETWEEN:
and
IN THE MATTER OF AN ARBITRAT I ON
Ryerson University
The Board of Governors of Ryerson University
(The Employer)
Ontario Public Service Employees Union on behalf of its Local 596
(Grievance of Jonathon Bauder)
(The Union)
Chair: Barry B. Fisher
Counsel for the Employer: Sunil Kapur
Counsel for OPSEU: Jessie Gutman
Hearing date: January 19, 2017
The Grievor claims that when his job was changed to a full time position it should have
been made into a 12 month position rather then a 9 month position.
Prior to August 2015, the Grievor's job was that of a Term Employee, which is defined
term under the Collective Agreement. This means that he is hired essentially on a fixed
term contract. From the beginning of his employment with Ryerson in 2009 until the
present he has in essence worked approximately 9 months per academic year. From 2009
to September 2011, the Grievor was part time, and as such was not in this OPSEU
bargaining unit.
He joined the bargaining unit in September 2011.
Both Parties agree that Article 13.02 (a) and (b) are highly relevant. They read as
follows:
13.02 (a) Positions funded Oyerating Bgdg_et
If a term position is established and continues to be required on an
ongoing basis for a period of not less then thirty six (36) months (3
years) the term position., subject to the University's approval, shall
be assimilated into the University's established career complement
whitin two (2) months of the third (P) anniversary date of the
position. Such approval shall not be unreasonably withheld.
13.02 (b) Positions Funded by other then Base ^Operatin
Budget
Term positions budgeted by other sources of funding (i.e. not
funded by the University base operating budget) shall not be
eligible for conversion to career status but an employee in such a
position will be eligible to receive severance, as per Article 1.3.06
(e) in cases where the University determined that the position is no
longer required.
In other words, for an employee to move from Term status to "established career
complement" requires the following:
1) the position must be funded by "Base Operations Budget", and
2) The Term position must be required on an on-going basis for at least 3
years, and,
3) The University must approve of the conversion, which approval shall not
be unreasonably withheld.
In this case, the only evidence before me (in the form of a letter from the University to
the Grievor dated August 26, 2015) is that the position occupied by the Grievor (Cage
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and Booking Assistant) only achieved Base Operating funding, in August of 2015, Prior
to that, this position was a position funded by a source other then the Base Operating
Budget.
The University determined that there was an ongoing need for the position and that it had
been in existence for 3 years. Therefore in August of 2015, they advised the Grievor that
his status was to be changed from a Term employee to that of a Full Time Career
Employee (FTCE) and as such he would work a full work week of 37.25 hours a week
but only for 9 months of the year (excluding May, June and July).
The parties refer to an employee who is a permanent employee who does not work 12
months as a Partial Year Employee (PYE).
This is where the confusion arises. The Grievor understood that the states of FTCE meant
full time hours for 12 months of the year. The University contends that the reference to
Full Time is only to the working hours, not to the number of weeks per year.
It is clear from a review of the Collective Agreement that the University's interpretation
is the correct one, as the parties have chosen to provide that a FTCE could be one who
work 12 months a year, but also includes a subset of people who work less then 12
months a year (PYE),
The Collective Agreement refers to the PYE status in the following articles:
15.11 Career Eanployees with a Partial Work Year:
(a) Career employees, including partial year employees, will receive two
applicable benefits as outline in Article 32
(b) Sick Leave Entitlement for Career Employees with a Partial 'Work
Year
Food services employees who work a partial work year, are entitled to
the sick leave provisions as outlined in Article 31, The calendar year
referenced in clause 31.02 (b) is defined as September 1 — August 31,
for Food Services Employees.
30.01 Vacations
(c) maximum accumulation of accrued vacation leave under Article
31.01 (a) above, shall be twenty four (24) times the applicable
monthly accrual rate and once the maximum is reached no further
accrual under Article 30.01 (a) above, shall take place, unless, in
exceptional circumstances of service requirements, which provided
the taking of vacation by the bargaining unit member concerned,
the maximum is raised by the University.
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32.05 The University agrees to pay the cost of premh:ims for partial year career
employees for their scheduled non -work periods subject to Article 32.03
above.
Thus when Article 13.02 provides for conversion "into the University's established career
complement", this can mean people who work 12 months a year or people who work less
than 12 month a year (PYE).
Article 13.02 (a) does not mean that an employee is guaranteed 12 months of work a
year.
The parties agree that as a result of the conversion in August of 2015, the Grievor's
current status is that of a FTCE, which is exactly what he asked for in his grievance.
Under the Management Rights clause, it is the University who decides how to structure
the work. They have decided to structure it by way of a 9 month full time bargaining unit
members for all but May, June and July and in summer months to use students who are
not in the bargaining unit as they are excluded under Article 1.01 (d) which excludes
from the bargaining unit "students employed during the school vacation period,
specifically the official end of the winter school term to the official start of the fall school
term".
Simply put there is nothing in the Collective Agreement that compels the University to
provide the Grievor with 12 months of work.
The second argument of the Union is that as the Grievor had been doing work in the
bargaining unit since September of 2011, and. that the 3 years was up in the fall of 2014,
not 2015.
This argument is rejected for a number of reasons:
1) The grievance, fled on April 19, 2015, makes no mention that the conversion
was late by a year, only that the conversion should ha,�•e been to a 12 month
time frame.
2) If the conversion should have taken place in 2014, the grievance is untimely.
Article 7 requires that a grievance be filed within 20 days of the event giving
rise to the grievance.
3) On the merits, the evidence before me showed that in 2014, the position in
question was not funded in the Base Operations Budget, thus the conversion
provisions in 13.02 (a) were not applicable.
The third argument of the Union is that Article 17.01 (a) the Collective Agreement was
breached in that the Employer failed to "give the affected employees every opportunity to
present their views and input before implementation". Article 17.01 (a) reads as follows
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17.01 (a) In the case of a reorganization of a department, the local Union
executive shall be notified, in advance of communication to
employees and shall be given the opportunity to provide input into
the proposed changes and the corresponding change management
strategy. Once the Union executive has been advised of the
proposed changes, the affected employees shall, as far as in
advance as possible, be advised of the changes before
implementation. The University shall give the Union and the
affected employees every opportunity to present their views and
input before implementation. Subsequent to the meeting in which
management outlines its reorganization plans in writing to the
Union representatives, the local Union shall then have a period of
fifteen (15) working days in -which to respond, in writing, to the
proposed re -organization.
The evidence is that the re -organization of workplace from two cages into one cage took
place between 2010 (when the incumbent retired) to the Fall of 2012 (when the G ievor
was awarded the job). If that is so, then the grievance is out of time.
Furthermore, there is no mention in the grievance of a breach of this Article 17.01 (a).
Moreover, there is no effective remedy that I could fashion for an alleged breach that if it
occurred, is now about 5 years old.
For all the above reasons, the grievance is dismissed.
Dated at Toronto this 24th day of J iary 2017
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