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HomeMy WebLinkAboutLovelock 87-04-30 . 27-Nov-2006 12:14pm From-TEPLITSKY COLSON +416 365 9936 T-770 P.002/010 F-879 .---./ IN THE MATTER OF AN ARBITRATION BETWEEN PANSHAWE COLLEGE AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION IN THE MATTER OF THE GRIEVANCE OF Y. J, LOVELOCK MR. O.B. SHIME, Q.C. CHAIRMAN MR. E. BRADY COLLEGE NOMINEE MR. J. HERBERT UNION NOMINEE --- APPEARANCES HS. B. BmiLBY COUNSEL, and others for t.he:! college MR. D. BLOOM COUNSEL, and others for t.he Union Hearings were held in this matter at Toronto on wednesday, November 25, 1985 and Monday, November 10, 1986. , .'-./' 27-Nov-2DD8 12:14pm From-TEPLITSKY COLSON +418 S85 99S8 T-77D P.DDS/D1D F-879 - 2 - ~. In this matter, the grievor, Y.J. Lovelock claims that her workload was inequitable. The grievor teaches English as a Second Language (E.S.L.) at Fanshawe College. In 1983/4 she was a full-time teaching master and taught in the fall, winter and summer. She complained about the summer schedule . - - -- -.-. - .. . - and when the committee, constituted under section 4.02 of the collective Agreement, was unable to agree about her assignment, .-- --- -- --- this matter was referred to arbitration. The student population for the E.S.L. program is comprised of many different language groups with varying academic backgrounds, aptitudes and ethnic-cultural persuasions. The grievor testified that she responded to her students on a number of different v levels and that since there was no textbook she developed her own teaching materials, bearing in mind the differences in each class. The grievor also testified tha't she prepared material for each lesson and that she spent about three to three and one-half hours designing and typing this material. As part of her teaching ma'l:,erials, the grievor uses visual aids; she testified .t.hat on average the selecting and collecting of the material, including 'transportation, takes appro~imately three to four hours per week. The grievor maintains that, notwithstanding that the College has a counselling service, she, too, counsels students. She stated , '--./ .- --- -- --- .-- - -~~ ~ 27-Nov-2oo6 12:14pm From-TEPLITSKY COLSON +416 365 9936 T-77o P. 004/01 0 F-B79 - 3 - that as an E.S.L. teacher she is the interface between the ,,--,' students and the new society and is, in effect, the interpreter of the new reality to them, and thus she serves as a special counsellor to her students. She claims that she assists them because they don't trust some of the authority figures or the government bureaucrats with whom they come in contact. The grievor testified that she spent four hours per week counselling students and another hour or one-half hour in the week assist- ing them in filling out forms. She admitted that these coun- selling duties were not assigned to her by the College and also that she was not directed by the college to perform these counselling services. '~ The grievor's evidence was confirmed in a number of respects by N. Elson who is an E.S.L. teacher at York University. He particularly confirmed the need to counsel students. Mr. Monte Black, the Chairman of preparatory students ~ho was responsible for the E.S.L. program testified that the duties of the E.S.L. teachers did not include counselling and that there were other resources available to help these students. Based on these facts, the union argued that the grievor's assignment. was inequitable and contrary to Section 4 of the Collective Agreement. Counsel for the union suggests 'that \.-t"-' -- 27-Nov-2006 12:15pm From-TEPLITSKY COLSON +416 365 9936 T-770 P.005/010 F-B79 - 4 - this Board should be particularly concerned about the exercise ~ of professional judgment by teachers and that our inquiry should focus on whether the grievor performed her work in a reasonable manner. The College submitted that counselling duties were not assigned to the grievor and that gratuitous or volunteer services per- formed by her do not impose any obligation for payment upon the College. The college further submits that counselling services are available to immigrants and that it has not assigned these duties to the grievor. The relevant provision of the Collective Agreement is ~~ Section 4.02 (a) which provides as follows: 4.02 (a) Recognizing the unique characteristics of each College, the diversity of programmes and instruct- ional techniques and the consequent range and variety of individual assignments, the parties agreed that within three (3) weeks following the publishing of instructional assignments in September, a College instructional Assignment Committee of six (6) persons (three (3) persons to be appointed by each party and to include the College president or Senior Administrative Academic Officer) shall meet to; (i) consider the application of Section 4.01 to the inst~uctional assignments across the College; (ii) resolve apfarent inequitable instructional assignments; ~ 27-Nov-2DDS 12:15pm From-TEPLITSKY COLSON +41S 3S5 993S T-77D P.DDS/D1D F-B79 - 5 - 4.02 (a) cont'd. (ii i) consider a claim by an individual that his instructional assignment is inequitable. -". The committee shall in its consideration have regard to such variables affecting assignments aSJ (a) (b) nature and number of subjects to be taughtJ level of teaching and business experience of the faculty and availability of technical and other resouce assistance; (c) necessary academic preparation and student contact, (d) examination marking and assessing responsibilities; (e) (f) (g) size of class1 instructional mode(s) J assignments ancillary to instructional activities; \.- (h) previously assigned schedules; (i) other assignments 1 (j) necessary excessive travel time between assignments. It is agreed that this is not a grievance concerning a violation of Section 4.01 and that the grievor's claim is solely under Section 4.02. At the outset, it is important to note that the grievor appears to be an extremely dedicated and capable teacher ~i.th an obviously sincere interest in her students. However, her dedication, capabilities and sincerity are not the issue in this case nor '-/ 27-Nov-200S 12:15pm From-TEPLITSKY COLSON +41S 3S5 993S T-770 P.007/010 F-879 I _/ \-.-' .\....,..../ - 6 - are they dispositive of the issue at hand. This is not a case where the grievor's assignment is to be compared with others, rather the narrow issue is whether the assignment per se, or in and of itself, is inequitable, and in our vie~,that issue may be simply answered. The scheme of Section 4 is to provide a procedure to relieve teachers from improper work assignments by the College. Since the right to assign rests with the College, the procedure is designed to allow a decision by the College to be scrutinized by an independent third party. The procedure, thus, is intended to curb any abuse of the assignment right vested in the college. But the scheme presumes that the College will assign the work. In this case, the College has not assigned the counselling work to the grievor. She cannot unilaterally assign the ~ork to herself and then seek compensation for it. The grievor was aware that there ~ere other counselling services available for her students yet she chose to arrogate to herself the role of counselling students. The counselling service that she provided was completely gratuitouS; she was on a frolic of her own. Regard- less of the value of her work or its particular merit,in these circumstances, the grievor canno~ complain that the college's assignment was improper. Simply put, the College has the right to a5sign work and it cannot have individual teachers unilaterally assume duties and responsibilities -t~a~ are 'not assigned and which 27-Nov-2DD6 12:15pm From-TEPLITSKY COLSON +416 365 9936 T-77D P.DD8/D1D F-879 - 7 - they know are beyond the scope of the ~ork assigned. Nor are we prepared to find that the counselling was "ancillary" as contemplated by Section 4.02 (a), (g). It is also interesting to note that with respect to counselling, Mr. Elson, an experienced E.S.L. teacher called by the union to give expert testimony, stated that "if there was a counsellor it would take the load off the teacher". The inference from that statement is that counselling services need not be provided by the teacher but should be provided in the College - which the college has done. There is also some conflict in the union's evidence with respect to the preparation of teaching materials. The grievor claims, in effect, that each class is unique and accordingly she is \...... . required to prepare for each class as if she were starting from scratch. However, Mr. Elson suggested that an experienced teacher who has developed a base would be able to use and adapt materials. More specifically, he testified that an e~perienced 'teacher "wouldn I t start from scratch". Moreover, in these cases where there is no complaint about relative equality, ,there should either be some standard to measure 'the alleged inequality, or, at the very least, SOIDe very special or exceptiona.l circumstances. There was no standard of measurement referred - to .'o.or- are the circums'tances.,-'1n this case, exceptional. '"--, . 27-Nov-2006 12: 16pm From-TEPL I TSKY COLSON +416 365 9936 T-770 P.009/010 F-879 - B - In the result, after weighing the evidence, it is our view that the assignment to the griever was not inequitable or contrary to Section 4 of the Collective Agreement. The grievance is dismissed. DATED AT TORONTO THIS 30 DAY OF APRIL 19B7. Owen B. Shime, Q.C. Chairman \...- . L~~ E. :Brady Nominee fer the college 1\ .1. Herbert" (Dissent to follow) J. Herbert Nominee for the Union '\......-. . 27-Nov-2DD6 12:16pm From-TEPLITSKY COLSON +416 365 9936 T-770 P.010/010 F-B79 - 8 - In the result, afteJ: \Veighing the evidence, it is our view that the assignment to the grievor was not inequitable or contrary to Seotion 4 of the collective Agreement. The grievance is dismissed. _J DATED AT TORONTO THIS DAY OF 1937. rV h~ V __~_~---~.- ~__XLAlr OWen B. Shime, Q.C. Chairman "---- E. Brady Nominee for the college J. Herber.t Nominee for the Union '---~