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HomeMy WebLinkAboutShort 16-06-11IN THE MATTER OF AN ARBITRATION UNDER THE COLLEGES COLLECTIVE BARGAINING ACT,2008 S.O. 2008 c. 15 BETWEEN: HUMBER COTLEGE INSTITUTE OF TECHNOLOGY AND ADVANCED LEARNING (the "College") -and- oNTARTO PUBLTC SERVTCE EMPLOYEES UNrON (ACADEMTC) fthe "Union") GRIEVANCE OF |EFF SHORT #2015-0562-0005 SOLE ARBITRATOR: fohn Stout APPEARANCES: For the College: W.J. Hayter, Counsel Christa Hinds, Sr. H.R. Consultant Alvina Cassiani, Dean School of Business Mark Hanna, Associate Dean School of Business Gina Antonacci, Associate V.P. Academic For the Union: fesse Isaac Gutman, Bilingual Grievance Officer Bob Bolf fanet Porter feff Short Silvia Ciuciuca Hearing held in Etobicoke, Ontario on May L3,20L6 INTRODUCTION t. This matter concerns "Grievor"), who alleges that Classification Plans bv not qualifications, AWARD a November L2, 2015 grievance filed by Jeff Short (the the College has violated the Collective Agreement's fob providing him credit for relevant experience and formal 2. The College responded to the grievance on December 2, 20L5, indicating that the Grievor failed to file his grievance within the time limit specified in the Collective Agreement. The College also maintained that the Grievor was appropriately credited for his experience and formal qualifications, in accordance with the Collective Agreement's fob Classification Plan. PROCESS 3. At the hearing on May 13,20L6, the parties engaged in settlement discussions, but were unable to reach a mutually agreeable resolution. Therefore the matter proceeded to be heard by me. 4. At the beginning of the hearing, the College advised that they were not pursuing their preliminary objection with respect to the timeliness of the grievance being filed. However, the College made it clear that their failure to pursue this objection was without prejudice to any position they may take in any other matter and it was their position that any remedy that may flow from this grievance ought to be limited to the timeframes provided for in the Collective Agreement. 5. The matter then proceeded to be heard on its merits. Counsel made detailed opening statements and provided me with a number of agreed upon documents. The parties then agreed that I would hear the evidence of the Grievor in chief, then I should determine whether or not a prima facie case has been proven by the Union. It was specifically agreed that my determination would be based only on the documents filed, the oral evidence of the Grievor fwho the College has reserved the right to cross-examine) and -L- submissions of counsel. The parties also agreed that if I determine that a prima facie case has been made out by the Union, then the College would have the right to cross-examine the Grievor and tender additional evidence. If I determine that a prima facie case has not been made out, then I would dismiss the grievance. BACKGROUND FACTS 6. In April 2006, the Grievor applied to a posting for a Professor position at the College's School of Business, in the Human Resources Management and Organizational Behaviour Program. 7. The Grievor submitted his application with a cover letter and curriculum vitae (CY) on April 23, 2006. In his CV the Grievor listed the following under "ACADEMIC QUALIFICATIONS", which are relevant to this matter: a a MBA, concentration and organizational development/organizational behaviour and strategic management, Schulich School of Business, York University, graduated with honours December 2003 Certificate of Management Skills, Schulich Executive Education Centre, fuly 2005 Post Graduate Diploma in Business Administration, Wilfred Laurier University, Graduated April 1992 BA Psychology, the University of Western Ontario, Graduated April 1991 Certificate in Human Resources Managemen! Mohawk College, Graduated with Honours April 1994 Certificate in Industrial Relations, Mohawk College, Graduated with Honours April 1994 Certificate in Training and Development, University College of Cape Breton, Graduated with Honours December 1998 B. The Grievor also indicated on his CV that he had "12 years experience in developing, delivering and managing corporate training, with an emphasis on ROI." -J- 9. Under the heading "EMPLOYMENT HISTORY", the following information provided by the Grievor, which is relevant to this matter: ' Humber College Institute of Technology and Advanced Learning (September t994 to present) Professor (part-time) Bachelor of Applied Business [E business) program. ' Human Resources and Skills Development Canada (HRSDC) [August L995 - present) 10. Under the sub-heading "ADDITIONAL EMPLOYMENT EXPERIENCE", the Grievor indicated the following: . Human Resources Specialist Dominion Castings - Hamilton, Ontario [November 1994 to March 1995) . Census Commissioner, Statistics Canada, Hamilton, Ontario [April L99I to July 1991) . Franchise Owner/Manager College Pro Painters - Hamilton, Ontario (December 1989 - September 1990) LL. The relevant provisions of the Collective Agreement are as follows: Article 14 Salaries 14.01A Determination of starting salaries and progression within the salary schedule shall be in accordance with the job classification plans fsee pages 138-143). The application to certain present employees above the maximum step on the salary schedule shall continue as set out in 14.03. loB CIASSIFICATION PLANS FOR POSITIONS IN THE ACADEMIC BARGAINING UNIT (to be used in determining salaries for Professors and Counsellors and Librarians and Instructors) SECTION 1 CLASSIFICATION PLAN FOR PROFESSORS AND COUNSETLORS AND TIBRARIANS FACTORS 1. APPOINTMENT FACTORS A) Experience: RelevantTeaching/RelevantOccupational -4 Relevant occupational experience generally means full years of experience in afield of work related to the material to be taught or the job to be done, or tosome allied aspect of it. In determining the number y."i, to be counted, the College hiring must avoid the extremes of counting either "years of time passed,, or "years of entirely non-repetitive experience", and must make a fair assessment of an applicant's experience. For example, an applicant who had spent some years as a sales clerk before qualifying as an engineer should not expect that sales experience to count asrelevant experience ifthe person is being hired to teach engineering. Part-time experience should be totalled only if it forms part of a regular program of development such as a co-operative educational program. Double counting must be avoided. For example, if an applicant worked as agraduate assistant while pursuing an advanced degree, the person shall not begiven full credit for both experience and educational time. Similarly, relevant teaching experience means full years of teaching experience at a level comparable with the level required of the applicant. Again, double counting must be avoided for teaching experience as, for example, a graduate assistant while pursing advanced qualifications. The values to be given for experience are: . First 5 years; 1 point per year . Next 9 years; 2/3 point per year . Next 72 years; r/z point per year B) RELEVANT FORMAL QUALIFICATIONS Formal qualifications are those which constitute the norm in institutions of post-secondary education in the Province of ontario. only full years of post- secondary education at successively higher levels, and leading to a diploma, professional accreditation or degree, are recognized. For example, a griduate of a three-year technology program in a college would be given l- % points for each of the three years, regardless of the length of time actually spent by the individual in obtaining the diploma. No credit is to be given for a year of study in which there was significant duplication of either studies. Therefore, only the highest qualification will be used in computation unless the subject areas are from different disciplines and all relevant to the appointment. . CAAT diploma or post-secondary certificate - per year flevel) completed; [maximum of four years) 1 % points -)- . University degree - per year [level) completed: l%points [maximum of six years) . Formal integrated work/study program such as P.Eng., CA, CGA, CMA [formerlY RIA), certified journey person - per year flevel) completed; [maximum of five years) 1 % points (Note that years included herein are not also to be included under Factor A) C) COMPUTING INITIAL PLACEMENT D the minimum qualifications requirement is a count of eight points based upon the appointment factors. since this is the minimum requirement, a total of eight points corresponds to the minimum rate. [this is not intended to preclude the college from hiring an individual whose qualifications and experience total less than eight points. In such cases, however, the individual would be hired at the minimum of the scale.) ii) Computation of the initial salary is, therefore, A+B-8. The product is rounded to the next higher number, e'g. A=B Points B= 4 1/2 Points A+B= 721/2 points 1'21/2-B=41/2=5 The starting position is the corresponding step (step 5) on the scale. iii) No individual will have a starting salary of less than the minimum on the salary scale. IZ. The College completed an academic salary calculation in late June 2006. The College gave the Grievor credit for qualifications of five years and credit for experience of twelve years. The College then applied the job class plan provisions and calculated that the Grievor would be at Step 9 of the salary matrix. The College then added a discretionary step so that the Grievor was placed at Step 10 of the salary grid' -6- SUBMISSIONS 13. The Union asserts that the College did not properly apply the Collective Agreement's fob Classification Plans. According to the Union, the College's calculation was faulty and incorrect. In the Union's view, the College failed to consider two important facts when determining the credits to be given to the Grievor: . The Grievor should have been credited for fourteen years experience, including the time he worked at Dominion Castings and with College Pro Painters. . The Grievor ought to have been credited for seven years of education by including the two Mohawk Certificates and the University College of Cape Breton Certificate. L4. The Union argues that if the College had properly considered the Grievor's relevant experience and formal qualifications, then he would have been entitled to a total of L3 1./2 points, which would have been rounded up to a Step 14. 15. The Union also argues that the College's calculation should have resulted in a Step 10 placement in any event and that there was in fact "no discretionary step" added to the calculation. Therefore, the Grievor did not gain any windfall from the College's calculation. t6. The College disagrees with the Union's assertion that they did not properly apply the Collective Agreement's fob Classification Plans. In the College's view, the Grievor was fairly evaluated based on the information that he provided to the College when he was hired. 17. The College takes the position that they properly credited the Grievor for his work experience by applying the language found in the Collective Agreement. The College asserts that the College Pro painting experience should not have been included as the Grievor was enrolled in the BA Psychology program at Wilfred Laurier University for which he had already been given credit. The College takes the position that crediting the Grievor for the College Pro painting experience would be double counting. In terms of the five months of work experience with Dominion Castings, the College takes the position that -7 - such work experience does not have the necessary degree of relevance to be given any credit. 18. In terms of the formal educational qualifications, the College asserts that the two Mohawk Certificates and the University College of Cape Breton Certificate are not to be given credit as those qualifications are a duplication of the Grievor's MBA, which is the highest qualification. The College insists that only the highest qualification is given credit, unless the subject areas are from a different relevant area of study [discipline). In the College's opinion, the Grievor was properly credited for the three years for his BA (psychology) and two years for his MBA. L9. The parties provided me with the following authorities during their arguments: Humber CoIIege and OPSEII, Local562 (Lung) (2016),125 C.L.A.S. 339 [Jesin); Confederation CoIIege and )ntario Public Service Employees Union (Mayer), Unreported Award of fane Devlin dated fanuary 7,201,6; The Confederation College of Applied Arts and Technology and Ontario Public Service Employees Union (Huggins), Unreported Award of an Arbitration Board Chaired by P. fohn Brunner dated March 25,1083; and Fanshawe College and 0ntario Public Service Employees Union (McLellan), Unreported Decision of an Arbitration Board Chaired by P. C. Picher dated May 3, L993. DECISION 20. After carefully considering the language in the Collective Agreement, the evidence and the submissions of counsel, I am dismissing the grievance for reasons that I elaborate upon below. 2L. The awards provided to me by the parties provide a useful place to begin the analysis. ln Fanshawe College (McLellan), supra at page 20, the Picher Board noted as follows: 8- It is readily apparent from a review of the classification plan that the parties have agreed that not all years of post secondary education and not all yeirs of work experience will receive credit. 22. In terms of experience, the comments of the Brunner Board in The Confederation College of Applied Arts and Technology (Huggins), supra at page 19 are particularly helpful where they indicate: .'. The College is not compelled to count each and every year of occupational experience. It is given a wide discretion in this regard, the only requirement being that it make a fair assessment of an applicant's experience. 23. In the matter before ffi€, the Grievor emphasized twelve years of relevant experience in his CV. The Grievor also referred in his CV to other additional work experience, which the Union now says the College failed to credit. In my view, the College made a fair and reasonable assessment of the Grievor's work experience. 24' I do not doubt that both the Dominion Castings experience and the College pro painting experience is somewhat related to the Grievor's position at the College. Quite frankly, I cannot foresee how any work experience would not be somehow related to teaching human resources management and organizational behaviour at a school of business. However, that is not the issue to be decided in this matter. The issue to be decided is whether or not the College made a fair and reasonable assessment of the Grievor's working experience in accordance with the terms found in the fob Classification Plans. 25. I note that the Dominion Castings experience was within the time frame that the Grievor was obtaining other experience at HRCC. The College Pro painting experience was gained while the Grievor was enrolled in his BA Psychology program at Wilfred Laurier University. In both cases, I am of the view that the College was fair and reasonable in not counting this experience to avoid extremes and double counting. -9- 26. Turning to the Grievor's educational qualifications, I agree with the College that the highest qualification obtained by the Grievor was the MBA and the Certificates were not to be credited. The subject areas of the two Mohawk Certificates and the University College of Cape Breton University Certificate are within the same discipline (business) as the MBA. 27. The language chosen by the parties in the Job Classification Plan specifically states that "No credit will be given for a year of study in which there was significant duplication of other studies...only the highest qualification will be used in computation unless the subject areas are from different disciplines and all relevant to the appointment". Being granted credit or advanced standing would certainly prove duplication, see for example Confederation CoIIege (Mayer), suprq at page 13 -L4. However, the language is not restricted to situations where credit or advanced standing were given. Rather, the parties used broader language, which in my view includes situations such as the matter before me. The Grievor's Certificates were within the same discipline and they were not a prerequisite for the MBA program. In these circumstances, I find that the College quite properly did not give the Grievor credit for the Certificates. 28. I find, based on the evidence before me that the College properly applied the Collective Agreement's fob Classification Plans. The Grievor was properly credited for five years of relevant formal qualifications and twelve years of experience. Furthermore, and most importantly, I am of the view that the College's total calculation was in accordance with the terms of the Collective Agreement. For all of the reasons noted above, I am dismissing the grievance. Dated atToronto this 11th day of fune 2016. 29. Stout - Arbitrator