HomeMy WebLinkAboutMcGinn 18-07-19IN THE MATTER OF AN ARBITRATION
Between:
ALGONQUIN COLLEGE
(the Employer or the College)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 415
(the Union)
Grievance of Ken McGinn
A W A R D
Paula Knopf - Arbitrator
APPEARANCES:
For the Employer: Jock Climie, Counsel
Erin Langevin, Labour Relations Specialist
Robyn Heaton, Dean of Faculty of Arts, Media & Design
Peter Larock, Former Chair, Faculty of Arts, Media & Design
Diane McCutcheon, Director, Labour Relations
For the Union: Morgan Rowe, Counsel
Pat Kennedy, OPSEU Local 415
Jack Wilson, OPSEU Local 415
J.P. Lamarche, OPSEU Local 415
Tracy Henderson, OPSEU Local 415
The hearing of this matter was held in Ottawa on September 5, 2017,
and May 3, 4, 30 and 31, 2018.
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The Collective Agreement excludes Teachers employed on a part-time and
“sessional” basis from the Academic bargaining unit. However, if a Sessional is
appointed for more than 12 months of continuous or non-continuous accumulated
employment in a 24-calendar-month period, s/he is thereafter covered by the other
provisions of the Collective Agreement and has full-time status. The parties refer to
this as a “roll-over”. This Award deals with the claim of the Union and the Grievor
that the combination of his hours as a Partial-Load Teacher and as a Program
Assistant over a two-year period entitles him to “roll-over” into full-time status.
The Grievor has an impressive background filled with many personal and
professional achievements in athletics and as an entrepreneur. He is also a
professional photographer and videographer. To further his skill-set, he enrolled
as a student in the College’s Interactive Media Design [IMD] Program in 2008. He
excelled in his course work. After he completed this two-year diploma Program, he
was hired by the College to work as a Program Assistant in January 2012. In
September 2012, he was also hired as a Partial-Load Teacher in the same
Program. He continued in both these roles for some time. It is not disputed that if
his assigned hours as a Program Assistant and Partial-Load Teacher were to be
added together, he would be deemed to have accumulated the requisite hours to
qualify for the “roll-over” to full-time status as of April 2016. The issue in this case
is whether his assigned hours and duties as a Program Assistant should be
considered in determining his eligibility to “roll-over”.
There are few relevant areas of factual dispute between the parties. Where there
are differences, they are dealt with specifically as they arise in the analysis that
follows.
The statutory and contractual framework for this case is important. The relevant
provisions of Schedule 1 of the Colleges Collective Bargaining Act, S.O. 2008,
Chapter 15 are:
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Full time academic staff bargaining unit
1 The full time academic staff bargaining unit includes all persons
employed by an employer as Teachers, counsellors or librarians, but does
not include, . . . .
(d) Teachers, counsellors and librarians who are included in the part time
academic staff bargaining unit;
Part time academic staff bargaining unit
2 (1) Subject to subsection (2), the part time academic staff bargaining unit
includes all persons employed by an employer as,
(a) Teachers who teach for six hours or less per week;
(b) counsellors or librarians employed on a part time basis; and
(c) Teachers, counsellors or librarians who are appointed for one or more
sessions and who are employed for not more than 12 months in any 24 -
month period.
The Collective Agreement provides:
Article 1
RECOGNITION
1.01 The Union is recognized as the exclusive collective bargaining agency
for all academic employees of the Colleges engaged as Teachers,
counsellors and librarians, all as more particularly set out in Article 14,
Salaries, except for those listed below:
(i) Chairs, Department Heads and Directors,
(ii) persons above the rank of Chair, Department Head or Director,
(iii) persons covered by the Memorandum of Agreement with the Ontario
Public Service Employees Union in the support staff bargaining unit,
(iv) other persons excluded by the legislation, and
(v) Teachers, counsellors and librarians employed on a part-time or
sessional basis.
NOTE A: Part-time in this context shall include persons who teach six
hours per week or less.
NOTE B: Sessional in this context shall mean an appointment of not more
than 12 months duration in any 24 month period.
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Article 11
WORKLOAD
11.01 A
Each Teacher shall have a workload that adheres to the provisions of this
Article.
11.01 B 1
Total workload assigned and attributed by the College to a Teachers 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
11.01 B 2
A “teaching contact hour" is a College scheduled teaching hour assigned
to the Teachers by the College. Regardless of the delivery mode, courses
shall be deemed to have the same number of teaching contact hours as
they would if taught entirely in the classroom or laboratory.
11.01 C
Each teaching contact hour shall be assigned as a 50 minute block plus a
break of up to ten minutes. The voluntary extension of the teaching contact
hour beyond 50 minutes by the Teachers and any student(s) by not taking
breaks or by re-arranging breaks or by the Teachers staying after the
period to consult with any student(s) shall not constitute an additional
teaching contact hour.
11.02 F 12
References to "Teachers" in this Article include "instructor" but do not
include partial-load Teachers.
Article 26
PARTIAL-LOAD EMPLOYEES
26.01 B A partial-load employee is defined as a Teacher who teaches
more than six and up to and including 12 hours per week on a regular
basis.
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APPENDIX V
SESSIONAL EMPLOYEES
1 The terms of this Appendix relate to persons employed on a
sessional basis. Sessional employees are excluded from the bargain ing
unit.
2 A sessional employee is defined as a full-time employee appointed
on a sessional basis for up to 12 full months of continuous or non -
continuous accumulated employment in a 24 calendar month period. Such
sessional employee may be released upon two weeks' written notice and
shall resign by giving two weeks' written notice.
. . . . .
4 If a sessional employee is continued in employment for more than the
period set out in paragraph 2 of this Appendix, such an employee will be
thereafter covered by the other provisions of the Agreement. Such an
employee's probationary period shall be 12 full months of continuous or
non-continuous accumulated employment during the immediately following
24 calendar month period.
The Collective Agreement provides a “Class definition” for Professors, Counsellors,
Instructors and Librarians. The role of Professor is defined as follows:
Under the direction of the senior academic officer of the College or designate,
a Professor is responsible for providing academic leadership and for
developing an effective learning environment for students. This includes:
a) The design/revision/updating of courses, including:
- consulting with program and course directors and other faculty members,
advisory committees, accrediting agencies, potential employers and
students;
- defining course objectives and evaluating and validating these objectives;
- specifying or approving learning approaches, necessary resources, etc.;
- developing individualized instruction and multi-media presentations where
applicable;
- selecting or approving textbooks and learning materials.
b) The teaching of assigned courses, including:
- ensuring student awareness of course objectives, approach and
evaluation techniques;
- carrying out regularly scheduled instruction;
- tutoring and academic counselling of students;
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- providing a learning environment which makes effective use of available
resources, work experience and field trips;
- evaluating student progress/achievement and assuming responsibility for
the overall assessment of the student's work within assigned courses.
c) The provision of academic leadership, including:
- providing guidance to Instructors relative to the Instructors' teaching
assignments;
- participating in the work of curriculum and other consultative committees
as requested.
In addition, the Professor may, from time to time, be called upon to contribute
to other areas ancillary to the role of Professor, such as student recruitment
and selection, time-tabling, facility design, professional development, student
employment, and control of supplies and equipment.
Every case must be determined on the basis of the relevant facts. This case must
be viewed in the particular context of the IMD Program and the specific duties
assigned to the Grievor as a Program Assistant. This is a two-year Diploma
program that prepares students for careers in the digital media industry. Students
are taught the creative and technical elements necessary to design and build the
interactive media tools that are used for projects, such as website design,
videography, animation and graphics. Courses deal with areas such as web
development, digital imaging, authoring, animation, photography and video. In
their first year, students plan and execute individual and team-based projects. In
their second year, the students work directly with actual clients to create projects
for real use. Many of the students come to the Program with an interest in the
subject matter, but little or no prior experience or technical skills. The only
prerequisite for entry is a high school diploma. Further, many of the students
attracted to this Program have learning challenges. Programming and motion
graphics are complex disciplines to teach and absorb. Nevertheless, the Program
has grown in size and sophistication and has succeeded in retaining and
graduating more and more students each year. Part of its success is attributed to
its decision to utilize Program Assistants who can help students acquire and
master the ever-evolving technical skills related to their fields of study. Peter
Larock is the retired Chair of the School of Media and Design and held that role
during the period relevant to this case. He testified that there is a need for
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Program Assistants in the IMD Program because “these are not lecture classes;
these are ‘doing’ programs or project classes.”
Typically a class may start with the course Teacher explaining a theory or a
concept. Thereafter, the vast majority of class-time is spent with the students
“learning by doing”, as they work with the equipment and/or software to achieve the
objective of each class. This can result in a Teacher being “spread thin” in a
classroom as s/he responds to students who need extra or ‘hands-on’ help.
Therefore, the College has realized that students have more chance of success
when there are Program Assistants in the classrooms, labs and available on a one-
on-one appointment basis to help the students with the technology, programming,
equipment, specific techniques or other problems.
For many years the College has treated the IMD’s Program Assistants as
“academic non-teaching” positions. They were typically recruited from the ranks of
“cracker-jack” students in their third year of the Department’s three-year programs
or from recent graduates from the two-year programs. Those chosen would be
“strong students and good at helping.” The role of a “Program Assistant” is not a
position or classification that is mentioned in the Collective Agreement or the
governing statute. As of the time of this hearing, the Department had not issued a
job description for Program Assistants. However, their undisputed duties include
aiding Professors and students by demonstrating techniques and equipment in
classrooms and “labs”, helping students on an appointment basis to catch up when
they have missed classes or need extra assistance and giving them help with their
projects.
One of the key aspects of the parties’ dispute in this case centers on the question
of whether the Program Assistants “teach” within the meaning of that word under
this Collective Agreement. The Grievor and the Union assert that the Grievor
functioned as a “teacher” in his role as a Program Assistant during classes, in the
labs and during his one-on-one sessions with students. This is based on the
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undisputed evidence that the Grievor explained concepts in the classroom and
labs, demonstrated techniques and brought students up to speed with thei r course
work when they missed classes. Mr. Larock did not agree that this amounts to
being a “Teacher” under this Collective Agreement. Mr. Larock testified that the
differential in pay between the Program Assistants and the Partial Load faculty
employed as Teachers is based, in part, on the fact that the Program Assistants
are not expected to do course preparation or student evaluations. However, in
cross-examination, Mr. Larock conceded that the class definition of “Professor”
includes other components that “inform the function as a Teacher”. When asked
further about the differential between Program Assistant and Professorial
responsibilities, Mr. Larock testified that a Professor would never be assigned to
work as a Program Assistant, whereas some, but not all, Program Assistants,
including the Grievor, are also employed as Partial-Load Teachers.
There is a difference in the qualifications that the College requires in the hiring of
full-time Professors and Program Assistants. Teachers/Professors have the
responsibility for the preparation, delivery and overall assessment of the students’
work within their assigned courses. They are expected to have acquired their skills
through education and experience. The College expects its permanent faculty to
have academic credentials that are at least one level higher than what they are
hired to teach. For example, the “required qualifications” in a 2017 job posting for
a full-time Professor in the IMD Program included: “Advanced diploma (3 years) in
Interactive Media Design or related discipline/field. Bachelor’s degree would be an
asset. Ontario College Graduate Certificate will be considered.” The Grievor
applied for this position. However, he had none of these educational qualifications
and was therefore screened out of the recruitment process. However, his
experience, his stellar achievements as a student in the IMD courses and his
technical skills met the College’s expectations for him to be hired as a Program
Assistant and/or as a Partial-Load Teacher.
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The Grievor worked most closely as a Program Assistant with Professor John
Kozodoj, who testified on behalf of the Union. Professor Kozodoj was also a
Coordinator in the IMD Program. He described the Grievor as someone who
“teaches alongside with me”. Professor Kozodoj explained that his own assigned
courses were “very software intensive”, requiring a lot of demonstrations of
equipment. He relied on his Program Assistant, the Grievor, to work one-on-one
with the students to assist and to respond to technical or learning problems in the
classroom. Further, Professor Kozodoj also depended on the Grievor to be
available for his students at a specially-equipped lab during prescribed hours
and/or on a one-on-one appointment basis to help with specific issues, missed
classes or time-management challenges. In the project course, where there could
be a wide range of activities and demands for completion, Professor Kozodoj relied
on the Grievor and Program Assistants to demonstrate and/or explain a skill-set or
technique, particularly in their areas of individual specialty.
When asked to distinguish between the role of the Program Assistant and the role
of a “Teacher” in the second year project courses, Professor Kozodoj answered: “It
can get blurred”. He explained that students want to complete their work in class
and asked either him or a Program Assistant to “teach a specific skill”. Professor
Kozodoj said that he would also call upon the Grievor to give a “technical
evaluation” of a student’s assignment in an area of the Grievor’s specialty.
However, Professor Kozodoj made it clear that he had the responsibility for
determining the final evaluation of the students’ work. When asked to describe the
difference between the Grievor’s work as a Program Assistant and as a Partial-
Load Teacher, Professor Kozodoj described the roles as “similar”. However, he
said the difference was that the Partial-Load Teacher is responsible for the full
course delivery and the final evaluations of the students’ course work, whereas the
Program Assistant is not.
As of September 2012, the Grievor was engaged by the College in the roles of
both a Program Assistant and a Partial-Load Teacher in the IMD Program.
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Typically he would be scheduled 9-12 Partial-Load teaching hours and assigned
up to 24 Program Assistant hours per week. For some courses, the Grievor was
actually assigned one hour in the classroom as a Program Assistant alongside
another Teacher and another hour in the same course as a Partial-Load Teacher.
As a Program Assistant he was paid $20 - $22.00 for the specific hours assigned
to classrooms, labs or for appointments with students. He was not paid for any
hours he spent doing preparation or research. As a Partial-Load Teacher, he was
paid under Article 26 at an hourly rate that was four to five times higher. That rate
is predicated on the fact that the Partial-Load Teachers are responsible for course
preparation, delivery and the evaluation of the students’ overall achievement. As
the Grievor explained, “I was getting paid as Program Assistant or as a Professor,
but the role did not change.” He described this as “co -teaching”.
The Grievor took his Program Assistant and his Partial-Load assignments very
seriously. He took it upon himself to become familiar with the materials in the
courses where he was a Program Assistant and he tried to determine how to best
help students in the areas of his own specialties, i.e. videography, photography
and time management. To this end, he spent hours preparing for his duties. He
also described how he was often called upon to “teach a class” about some
techniques, such as QuickTime Video Reality (QTVR). So he would prepare an
outline or tutorial that he would use to “instruct” the students on the use of the set-
up and software required to produce the desired results. He admits that he did not
“teach a whole project class” as a Program Assistant. However, he explained how
he would often demonstrate to students how to use software, assist with the
management of the project teams, and ensure that the students fulfilled their
assigned tasks. The Grievor feels that he did “pretty much” the same work as a
Program Assistant as he did as a Partial-Load Teacher. He based this partially on
the fact that when a student missed a lot of classes or fell behind, he would be
called upon to help the student get back on track. He described this as “teaching”
the portions of the course that the student missed. Further, the Grievor asserted
that when he was functioning as a Program Assistant alongside a Professor in the
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classroom, they would often both be “up at the front, sharing in the teaching”. He
described this as, “divide and conquer, to lead the students to success”. When
asked whether he felt that there was a difference between hi s work as a Program
Assistant or as a Teacher, the Grievor replied: “As a Teacher you do the whole 15
units in sequence. As a Program Assistant you might do a part, but you need to
know all of what is going on. In class I don’t think there is any differe nce. Students
would address me as a Professor and think of me as a P rofessor.”
Professor Kozodoj explained that he found the Program Assistants to be valuable
because the students often found them “more approachable” than other members
of the faculty if extra help was needed. The Grievor gave several examples of
students he had helped as a Program Assistant, making accommodations for
disabilities and demonstrating techniques that were necessary for success.
However, Professor Kozodoj made it clear that the Program Assistants were
instructed to refer the students to the Professor or Counselling Services if they
needed psychological support, were experiencing conflicts with others or clients or
had learning challenges.
The Grievor also testified that he was assigned to be available to students in the
labs as a Program Assistant, to help with equipment, software and the students’
projects. When his assistance was not needed, he would use the facilities in the
lab to do research in his field or to prepare tutorials for QTVR, video and
photographic equipment.
The Grievor testified that Professor Kozodoj asked him to evaluate students’ work
in his role as a Program Assistant and that his opinions would be accepted by the
Professor. However, as mentioned above, Professor Kozodoj testified that he
sought the Grievor’s opinion on some specific technical aspects of students’ work
within the Grievor’s specialized areas of knowledge. The Professor then factored
that opinion into his determination of the students’ final grades. There was no
other evidence to suggest that Program Assistants are expected or authorized to
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assess students’ overall performance in a course. Therefore, while the Grievor
may have perceived that he evaluated students’ performance in his capacity as a
Program Assistant, the evidence does not lead to that conclusion. Alternatively, if
a Professor ever called upon or relied upon a Program Assistant to determine a
student’s grade, it is clear that from the totality of the evidence that this would have
been inconsistent with the College’s expectations of the Professor or the Program
Assistant. Therefore, the Grievor’s suggestion that he “evaluated” students in his
role as a Program Assistant must be discounted as either being mistaken or being
outside of his proper authority.
Another area in contention in this case was whether there was an expectation for
Program Assistants to do “preparation” for their assigned hours. Professor
Kozodoj did not completely agree with the College’s suggestion that the Program
Assistants do “no prep work”. Professor Kozodoj explained that the Program
Assistants need to have a “broad picture” of the course they are assigned to, keep
abreast of new techniques and be aware of the lesson plans and students’
assignments regardless of the fact that they are paid only for the hours which are
assigned to be in the classroom, in the lab or as appointment hours with students.
Nevertheless, as a Program Assistant, the Grievor took it upon himself to access
the College’s on-line “communication tool” so he could monitor students’ weekly
classes, assignments, and progress. He did this to familiarize himself with each
week’s classes and to file any of his own materials that he felt might be of
assistance to the students. He also prepared for classes where he was a Program
Assistant by looking over the course outline and the students’ assignments, and
that he planned presentations, tutorials and materials for the students. He said he
also did preparations for the situations when he was called upon to help students
catch up on missed classes. He explained, “A lot of the work that I did, I didn’t get
paid for.”
Mr. Larock testified that the College did not expect, or pay for, Program Assistants
to do much, if any, preparation for classes. However, he acknowledged that the
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Program Assistants “probably monitored what was going on in a course” and
accessed the Learning Management Systems to keep abreast of the students.
It is clear from the Grievor’s testimony that he spent more th an minimal time
preparing for his assigned hours as Program Assistant. His credibility on this point
is not in question. However, it must be pointed out that it was difficult to determine
how much of the Grievor’s “prep” work was done for the course that he was
assigned to teach on a Partial-Load basis or for his assigned hours as a Program
Assistant. It is clear that he took both these roles very seriously. Perhaps he spent
much more time than was expected of a Program Assistant because he viewed the
two roles as very similar. The Grievor chose to stop working as a Program
Assistant after April 2016 because he felt that he was not being paid adequately for
the work he was doing in that role. He continues to work at the College as a
Partial-Load Teacher.
When asked why he now wanted recognition as a full-time Teacher through this
grievance, the Grievor replied, with passion: “Because I like my job and I spent a
lot of time working on it. I took this Program as a student and really liked it. I
thought I could make it better.” It is very clear that the Grievor wanted to make a
positive contribution to the IMD Program.
The Union introduced bargaining history evidence, without any Employer objection,
through Sean Pentecost, a full-time Professor working at the College’s Pembroke
campus. Professor Pentecost is also actively involved with the Union Local and
was a member of the provincial bargaining team in the Fall of 2016. He testified
about the College Employer Council [the Council] tabling the following proposal
during negotiations that was said to “clarify existing practices”; [with the first
column being the proposal and the italicized text being the Council’s explanation]:
Article 2.05
Assigned teaching contact hours will be used to Clarify the distinction
distinguish between sessional, part-time and between the various
partial-load Teachers. classifications.
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Courses that are delivered by Teachers regardless of Ensure all course
the delivery mode shall be deemed to have the same delivery modes
number of teaching hours as they would if taught are treated the
entirely in the classroom or the laboratory. same.
Part-time employees are persons who teach more than
six hours per week or less.
Partial-load employees are persons who teach more
than six hours and up to and including 12 hours per
week on a regular basis.
Sessional employees are persons who teach more than
12 hours per week on a contract basis.
Professor Pentecost testified that although the Union agreed with the concept in
the second paragraph of the proposal, the Union felt that it belonged better in
Article 11.01 B 2. It was therefore adopted into the new Collective Agreement in
that Article as the Union suggested. However, the Union did not accept the
introduction of the concept of “teaching contact hours” into Article 2. This was
based on the Union’s assertion that full-time Teachers have duties beyond
teaching contact hours. Further, Professor Pentecost expressed the Union’s
feeling that the proposal was “unnecessary” because the Collective Agreement
also covers Counsellors, Librarians and Partial-Load Teachers. In addition, he
said that there were other aspects of the Council’s proposed changes to Article
2.05 that the Union could not accept. Accordingly, the “clarifying” language that
might have distinguished appointments on the basis of teaching contact hours was
not accepted by the Union. Nor was it adopted into Arbitrator Kaplan’s Interest
Award that later resolved the terms of this Collective Agreement.
In response to the Union’s bargaining evidence, the College introduced past
practice evidence from Diane McCutcheon, the College’s Director of Labour
Relations. Since 1989, she has held positions at the College with responsibilities
including classifications, recruitment, payroll, and “organizational effectiveness”.
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She explained that throughout her career, the College’s compensation and
classification system has always been based on the following system:
1. Part-Time Academic:
Teaching up to and including 6 hours per week.
Not covered by any provisions of the Collective Agreement.
Part-time faculty are placed on a rate grid under a specific
classification of Teacher 1, Teacher 2, Teacher 3 or Specialty Teacher.
2. Regular Partial Load:
Teaching more than 6 and up to and including 12 hours per week for
more than seven (7) weeks.
Covered by some provisions of the Collective Agreement including
pay-in-lieu of vacation (which is factored into the hourly wage, as per
Article 26.02A), progression through established pay grids (Article
26.04), insured group benefits in some cases (Article 26.06), payment
for work scheduled on statutory holidays, and sick leave (Article
26.08B).
Subject to payment of union dues.
The Partial-Load Academic Salary Schedules is used to determine
rates
3. Short Term Partial Load:
Teaching more than 6 and up to and including 12 hours per week for
less than or equal to seven (7) weeks.
Not covered by any provisions of the Collective Agreement.
Part-time faculty are placed on a rate grid under a specific
classification of Teacher 1, Teacher 2, Teacher 3 or Specialty Teacher.
4. Sessional Faculty:
Teaching more than 12 hours per week.
Meant to be temporary replacements for full-time Teachers, and as
such are restricted in the period of time at which they can maintain this
status - a sessional Teachers may only teach to a maximum of 10
months in a rolling 24-month period. Once the limit is reached, they
must return to part-time status only.
Sessional employees are not covered by any provisions of the
Collective Agreement .
Part-time faculty are placed on a rate grid under a specific
classification of Teacher 1, Teacher 2, Teacher 3 or Specialty Teacher.
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The College’s Part-time Staff Classification and Compensation Guide provides
further clarifications about how it deals with the Part-time “Academic” group:
1. There are “no restrictions” on hiring “Part-time Academics” and
“individuals can work indefinitely”.
2. Rates of Pay for Regular Partial Load employees are determined by
their placement on the salary grid. The College’s Pay Equity plan
provided compensation for the following factors within the hourly
wage:
Preparation of courses
Evaluation and feedback
Student advising
Registration week
Study week
Course development
Committee participation
Other complementary functions
Vacation
3. “Sessional teaching is considered a full-time equivalent.”
4. “Librarians, Counsellors and Learning Strategists who work 24
hours/week and under are considered part-time. Counsellors and
Librarians who work more than 24 hours/week are considered
sessional.
All this information regarding the College’s system of Classification and
Compensation is publically available and has been accessible on the College’s
website since 2005. Ms. McCutcheon further explained that the College is required
by Article 27.12 to provide the Union with notice of all personnel hired and
assigned “to teach credit courses including, in particular Sessional appointments”.
To that end, the College has consistently supplied the Union with part-time, Partial-
Load and Sessional “teaching” appointments. The College has not regularly
supplied information on Academic “non-teaching” assignments, although this has
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been given “on occasion” and “in error”. On those occasions, the ever-vigilant
Union has brought that to the Administration’s attention. The College computes
compensation for part-time and Partial-Load Teachers based on the “student
contact hours”, being the scheduled teaching hours for the assigned course. The
College has consistently treated the Program Assistants’ assigned hours as
“academic non-teaching” work.
The parties have stipulated that in 2008 an individual filed a grievance alleging that
he ought to have been considered as a Sessional rather than a Partial-Load
employee by virtue of the fact that he had been assigned 12 teaching contact
hours a week, as well as an additional hour a week as a Coordinator. That one
hour of Coordination duties had been classified as ‘academic non -teaching’ by the
College. The grievance claimed that the grievor should be recognized as a
Sessional and asked that he be deemed to be entitled to the “roll-over” under
Appendix V. That grievance was withdrawn in 2010 after the individual obtained a
full-time position at this College as a result of a competition, not as a resolution of
that grievance. At no time, before or since, has this Local filed a policy grievance
objecting to the manner in which the College classifies or pays its Academic non-
full-time employees on the basis of the teaching contact hours as set out in the
compensation and classification system and cited above.
The parties have further stipulated that there are a number of examples at the
College of full-time faculty who have 12 ‘teaching contact hou rs’, plus six hours of
complementary functions and are “fully loaded”. In other words, they are credited
with 40 hours on the Teachers’ workload formula due to other factors, such as
class size or the other variables in Article 11. There are also full-time faculty at the
College who have only “complementary” functions, such as Coordination and/or
non-teaching contact hours, as well as other full-time faculty who have fewer than
12 teaching contact hours, together with complementary functions to make up a
complement of a full-time workload.
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The Submissions of the Parties
The Submissions of the Union
The Union asserts that the Grievor has met the requirements under the Sessional
Employees’ Appendix V to be recognized as a full-time employee who is entitled to
“roll-over” and coverage under the Collective Agreement. It was said that the
College ought not to be able to take different “pieces” of a Teacher’s workload,
“piece it off” under different contracts, label some of it as “non-teaching” and
thereby avoid the ‘roll-over’ provision in the Collective Agreement. In support of
this, the Union relies on Doré v Canada, [1987] 2 S.C.R. 503; Sheridan College v
OPSEU, Arbitration Award, November 6, 1996 (Schiff); Algonquin College v
OPSEU, Arbitration Award, December 8, 2016 (Jesin); and Canadore College v
OPSEU, Arbitration Award, February 20, 1990 (H.D. Brown).
The Union submits that it is not appropriate to consider only “teaching contact
hours” as qualifying for purposes of the roll-over. Therefore, it was argued that all
elements of Article 11’s workload formula should be considered for that purpose,
regardless of what the College might have intended or labeled the work to be. It
was stressed that nothing in the Collective Agreement’s definition of a “Sessional”
links it to “teaching” or “teaching contact hours” because that Counsellors and
Librarians are also appointed on a sessional basis. Therefore, it was submitted
that the hours that trigger a roll-over should not be limited to only “teaching contact
hours”. Further, it was stressed that the Grievor’s assigned 24 hours per week as
a Program Assistant would be roughly equivalent to 13 teaching contact hours on
the Standard Workload Formula, depending on the class size, taking into
consideration evaluation and prep time. It was said that this should then result in
the Grievor being deemed to have a full-time workload. Further, while the Union
acknowledged that the Collective Agreement definitions of part-time and Partial-
Load refer to the hours someone “teaches”, it was stressed that neither refer to
“teaching contact hours”, a concept that was said to be a ‘term of art’ under this
18
contract. Accordingly, the Union suggests that if the parties had intended to restrict
the qualification for ‘roll-overs’ to teaching contact hours, they would have specified
that in Appendix V. The Union relies on the following cases in support of these
submissions: Algonquin College v OPSEU, Arbitration Award, March 1, 1996
(Bendel); Algonquin College v OPSEU, Local 415, 2001 CarswellOnt 5950 (Knopf);
and St. Lawrence College v OPSEU, Local 417, Arbitration Award, March 26, 2018
(Parmar) [St. Lawrence].
The Union also argued that the St. Lawrence decision, supra, is buttressed by the
evidence in this case about the bargaining history wherein it revealed that the
Union and Arbitrator Kaplan rejected the College’s proposal to adopt teaching
contact hours to distinguish between part-time, Partial-Load and Sessional
appointments. Therefore, it was said that the absence of such language in the
Collective Agreement should be given “effect and meaning”.
Further, it was stressed that the evidence and stipulations reveal that many full-
time faculty do not have 12 or more teaching contact hours as a result of their other
“complementary” functions. Accordingly, the Union argued that all the work
encompassed by the class definition of “Professor” should be counted for purposes
of determining employment status.
Further, or in the alternative, the Union argued that what the Grievor did as a
Program Assistant should be recognized as “teaching” or the “work of a Teacher”
under this Collective Agreement. It was stressed that the College has treated this
work as “academic” work, belonging within this bargaining unit. The Union pointed
out that the Colleges Collective Bargaining Act defines the “academic staff
bargaining unit” as including those employed as “Teachers, counsellors or
librarians”, plus the Collective Agreement includes the Instructor classification.
This led the Union to submit that teaching is a “broad concept” that includes the
duties of Professors, Instructors and Program Assistants. The Union argued that
both the Professors and Program Assistants in the IMD Program are engaged in
19
“teaching” because they both deliver the course materials, they both demonstrate
skills and they work together to ensure that the students learn . It was stressed that
the Program Assistants have contributed to the success of the Program because of
their ability to explain and demonstrate specialized skill-sets and technologies. It
was acknowledged that Program Assistants are not expected to do the kind of
“prep” work for classes that is contemplated for purposes of Article 11. However, it
was pointed out that the Program Assistants must make themselves aware of the
course material and be knowledgeable enough to meet the students’ needs.
Further, the Union relied on the evidence that suggested that the roles of a
Professor and a Program Assistant are “blurred” in the classroom as they work with
the students who require help and where there is essentially “co-teaching” of
procedures or technologies. The Union did not suggest that a Program Assistant
takes on the full responsibilities of a Professor or as the Teacher assigned to
deliver the course. However, the Union did assert that what the Grievor did as a
Program Assistant was a “piece of a Professor’s work”. This was said to amount to
“the work of a Teacher”.
The remedy the Union seeks is:
1. A declaration that the Grievor met the requirements of the Sessional
roll-over provision effective the end of April 2016;
2. A declaration that the Grievor is entitled to all of the benefits of full-
time status, including the running of a probationary period beginning
as of that date;
3. That this Arbitrator remain seized with regard to compensation and
any other ensuing remedies arising from the change of status.
The Submissions of the Employer
The Employer stressed that the Colleges Collective Bargaining Act defines the
part-time academic staff on the basis of the number of hours they “teach” per week
or on the basis of the duration of the sessions for which they have been appointed.
20
It was said that employment status is therefore dependent on the number of hours
engaged in the teaching function. The College asserted that the Grievor’s
assignment as a Program Assistant did not meet the definition of “teaching” for
purposes of the Collective Agreement or the statute. The College argued that his
situation ought to be assessed on the basis of his “core functions”, similar to the
approach taken in classification cases. To that end, it was pointed out that a
Partial Load employee is defined as a “Teacher who teaches” more than six and up
to 12 hours per week and that is how the Grievor was employed as a Partial-Load
Teacher, with responsibility for preparation and delivery of a full course and for
evaluation of students’ overall success. In contrast, it was stressed that when the
Grievor was employed as a Program Assistant, he had no responsibility for course
development, class preparation, full delivery of course content or for students’
overall success. While it was acknowledged that the Grievor’s work as a Program
Assistant “helped” the IMD Program, his work was not said to fit within what the
Collective Agreement intends to recognize as “teaching”. In support of these
submissions, the Employer relies on the following cases: Fanshawe College and
OPSEU (OPSEU File 89A160), (November 28, 1989, unreported) (Brent);
Fanshawe College and OPSEU, Re, 1990 CarswellOnt 5437, 18 C.L.A.S. 470 (ON
LA) (Brent); Humber College of Applied Arts & Technology and OPSEU, Re, 1990
CarswellOnt 4408 21 C.L.A.S. 249 (ON LA) (Knopf); Fanshawe College and
OPSEU, Re, 1997 CarswellOnt 7424 49 C.L.A.S. 257 (ON LA) (M.G. Picher);
Fanshawe College and OPSEU, Local 110 (99C250), Re, 2002 CarswellOnt 9140,
68 C.L.A.S. 335 (ON LA) (Burkett); Fanshawe College and OPSEU (01C054), Re,
2003 CarswellOnt 10485, 76 C.L.A.S. 69 (ON LA) (Knopf); St. Lawrence and
OPSEU, (July 22, 2005, unreported) (MacDowell); Fanshawe and OPSEU (April
20, 2007, unreported) (Starkman); and Algonquin College and OPSEU, Local 415
(2013-0415-0048), Re, 2015 CarswellOnt 10140 (Knopf).
The College acknowledged that there may be times when the work of a
Professor/Teacher and a Program Assistant may appear “blurred” because they
share functions in the classroom and they have the joint objective of students’
21
success. However, it was stressed that the Professor/Teacher assigned to deliver
the course has the sole responsibility for the course, including dealing with
students’ concerns about harassment, making referrals to student services for
emotional or disability assistance and final evaluation. The Grievor’s hard work
was recognized. However, it was suggested that he may have confused or
“conflated” his employment as a Partial-Load Teacher with his role as a Program
Assistant because of the fact that he often performed both roles for the same
course. It was also said that when a Professor/Teacher may have asked for the
Grievor’s opinion about some technical aspects of students’ work, this does not
equate to student evaluation or the Grievor having responsibility for student
evaluation. Further, it was stressed that if the Grievor had been asked to
determine a student’s first grade, this would have been outside the proper scope of
duties associated with the Program Assistant function.
The College submitted that the St. Lawrence decision, supra, has triggered
confusion that ought to be clarified or corrected by this Award. Bluntly, the College
submitted that the St. Lawrence decision is “wrong” where it concludes that the
calculation of hours for purposes of determining employment status is not restricted
to teaching contact hours and could therefore include other types of work within a
full-time Professor’s workload. The College urged that this Award should deal
differently than the St. Lawrence approach with regard to the interplay of Article
26.01 B and Appendix V. Since the Grievor in the case at hand was appointed as
a Partial-Load employee to teach 12 hours per week, it was argued that he could
not also be “Sessional” if his Program Assistant hours take him over the Partial-
Load threshold into the status of a full-time or Sessional employee. If that was the
case, the Employer argued that “chaos” would result throughout the whole province
because of the way Colleges have been compensating and classifying employees
for decades, based on their assigned teaching contact hours number of hours. It
was submitted that the Collective Agreement, read as a whole, must be taken to
intend that only those who “teach” or have teaching contact hours of more than 12
hours per week are full-time employees, some of whom are Sessional
22
appointments. It was stressed that in the history of litigation under this Collective
Agreement, no arbitrator before the St. Lawrence decision has suggested that
someone can achieve Sessional status by combining “teaching” with “non -
teaching” work.
It was also argued that the St. Lawrence decision might also result in a situation
where someone might be a Partial-Load and a Sessional employee for doing the
same work and that this would result in an “absurd” situation because it would
mean s/he was in two different categories at the same time. It was suggested that
this could trigger difficulties with regard to compensation, benefits and questions
about whether or not s/he belonged in the bargaining unit. Relying on the
contractual principle that the “specific trumps the general”, the Employer argued
that Article 26 is specific and defines a Partial-Load employee as a “Teacher who
teaches more than six and up to 12” hours per week. In contrast, Appendix V was
said to be the general provision that applies to employees appointed on a
sessional basis for the quantified duration(s). It was suggested that if the St.
Lawrence decision is correct, the statutory definitions of part-time academic
appointees will be obliterated because the number of “teaching” hours will no
longer be relevant.
In the alternative, the College suggested that if the Collective Agreement is
ambiguous about the definition of classifications or status, the ambiguity should be
resolved by reference to the past practice. It was pointed out that evidence
establishes that the parties have operated for many decades in conformity with the
system of classification and status based on teaching contact hours and as set out
in the College’s public compensation information documents. This was said to
create a “progressive classification scheme”, with “part-time” meaning teaching up
to and including six hours, Partial-Load meaning teaching seven to 12 hours, and
the Sessionals or full-time teaching more than 12 hours per week. The College
stressed that this system has been known to the Union and has never been
contested by way of a policy grievance or taken to arbitration before on behalf of
23
any individual. It was also pointed out that this history is a factor that was not an
aspect in the evidence presented to the arbitrator in the St. Lawrence case.
Addressing the Union’s reliance on the evidence of bargaining history that had
been said to support the Grievor’s case, the Employer argued instead that the
evidence revealed that the Council’s proposal was offered simply to “clarify”
existing distinctions between the classifications. It was pointed out that the Union
rejected the proposed language because there were other aspects to it that the
Union did not want. Further, the College stressed that the Union has not ever
objected to defining Sessionals on the basis of 12 or more teaching hours per
week.
The College also argued that there is a fundamental distinction between the duties
and responsibilities of the Program Assistants and full-time Teachers. It was asked
rhetorically, ‘why would the College pay over $100,000 a year for work that it pays
third year students or recent grads to do as Program Assistants for $15 - $22 an
hour’? Accordingly, the College argued that the work expected of the Grievor, as a
Program Assistant, is fundamentally different from the work expected of a Teacher
and should not be treated the same way as teaching or teaching contact hours for
purposes of Appendix V. Further, or in the alternative, and again to distinguish this
case from the St. Lawrence decision, it was submitted that the work of the Grievor
as a Program Assistant carried far less academic responsibility than the duties
expected of a Coordinator.
While denying that it was making a “flood-gates” submission, the College argued
that if the Union succeeds in this case, “every non-full-time Teacher in the
provincial College system” would be entitled to file a Standard Workload form to
determine if their duties generated the number of hours that would entitle them to
full-time status. The College warned that this could result in numerous employees
claiming full-time positions, whether or not they are qualified to fill them or whether
the need for their services exists. Faced with that prospect, the College argued
24
that the parties could not have intended such a result and that the St. Lawrence
decision should not be read or accepted as creating those kinds of problems.
The Employer also relied upon the following cases: Algonquin College v. OPSEU
(grievance re Article 27.12), August 31, 2017 (Stephens); Lakeside Health Corp.
and ONA (Barnard), Re, 2012 CarswellOnt 15513; and Algonquin College and
OPSEU, Re, 2005 CarswellOnt 12063 (Tacon).
The Union’s Reply Submissions
The Union responded to the Employer’s “floodgates” scenarios by pointing out that
chaos has not broken out since the release of the St. Lawrence decision. The
Union stressed that the St. Lawrence decision is correct and recognizes the reality
that there are full-time Teachers who have less than 12 teaching contact hours,
due to their assumption of complementary duties, such as Coordination duties.
The Union also sought to distinguish the cases that the Employer relied on by
submitting that they deal with issues of whether an employee fits within the
Academic or the Support Staff bargaining units, which is not the issue in this case.
It was stressed that the lack of a job description and “vaguene ss” about the
Program Assistants’ duties and responsibilities leaves much up in the air.
However, it was pointed out that the College has always treated the Program
Assistants as fitting within the Academic bargaining unit and therefore they should
be considered to be providing “academic work” and fall within one of the
recognized “classification definitions” of this bargaining unit, being either Professor ,
Counsellor, Instructor or Librarians.
In response to the College’s suggestion that the Grievor may have taken his
Program Assistant responsibilities beyond the scope of the role, the Union
asserted that the evidence supports the conclusion that the Grievor responded to
the direction and the expectations of the IMD’s Program Coordinator. It was said
25
that this is consistent with the expectations of the Department and therefore the
duties the Grievor undertook should be considered to be within the expectations of
the College.
In response to the College’s reliance on the Colleges’ Collective Bargaining Act’s
language with respect to part-time academic work, the Union asserted that this
case is not about a “part-time” employee; rather, it is about a Partial-Load
employee, a category not mentioned in the Act. It was suggested that if a
“Teacher” is defined as simply someone who “teaches”, the concepts of part-time
and Partial-Load can “co-exist”.
In response to the College’s reliance on past practice eviden ce, the Union asserted
that the filing of the previous grievances at this College and St. Lawrence College
over the Coordinator assignments signalled that the Union has not acquiesced to
the distinctions between classifications based on teaching contact ho urs. Further,
it was pointed out that the Collective Agreement precludes the Union from filing a
policy grievance with regard to a dispute that could be filed by an individual. To
this point, the Union relied upon John Bertram & Sons Co. and IAM, Local 1720,
1967 CarswellOnt 782, [1967] O.L.A.A. No. 2, 18 L.A.C. 362 (Weiler); and Ottawa-
Carleton District School Board and OSSTF, District 25, March 17, 2016
(Goodfellow).
The Union submitted that the Collective Agreement should be applied and
interpreted to ensure that employees who do full-time work are treated as full-time
employees. It was stressed that the Grievor was assigned what was essentially a
full-time workload, given his 12 hours of teaching as a Partial-Load and his up to
24 hours a week with students, in the classrooms and in the labs as a Program
Assistant. This Arbitrator was urged to deal only with the Grievor’s situation and
conclude that his workload met the requirements to achieve full-time Sessional
status and the benefits of Appendix V.
26
The Decision
The key facts that drive the outcome of this case are that for many years the
Grievor was employed by the College in two different capacities; one, as a
Program Assistant, assigned for up to 24 hours per week, and the other as a
Partial-Load Teacher, scheduled for 12 teaching hours per week. There is no
dispute that if his Program Assistant hours should be factored in to a determination
of his status, he would be deemed to have worked the requisite number of hours to
qualify for the ‘roll-over’ as of the end of April 2016. Accordingly, the core question
in this case is whether the Grievor’s employment as a Program Assistant should be
factored into his employment status under Appendix V of this Collective
Agreement.
The issues in this case are somewhat similar to the issues considered recently in
the case of St. Lawrence College, supra. That case dealt with an individual
appointed to teach 12 hours a week on a Partial Load basis and who was also
assigned Coordinator duties under a separate contract over the same period of
time. That grievance alleged that the College had failed to recognize her full-time
status on the basis of her workload. The stated issue between the parties was
whether the Coordinator duties should be considered in determining her status.
The College had argued that only the assigned “teaching contact hours” or
“scheduled teaching hours” should be taken into account in determining that
individual’s status. On the facts presented, it was concluded that the individual
should have been considered as a Sessional employee and that she was entitled
to all the contractual benefits that flow from that status. The analysis of Arbitrator
Parmar began with the following approach, with which I am in complete agreement:
39. It is useful to begin with a consideration of the broader construct of
the collective agreement. When considered as a whole, the collective
agreement indicates the parties intended that only some of the people the
College employed as Teachers would be included in the bargaining
unit. Furthermore, only some of the people the College employed as
27
Teachers would have access to all the collective agreement benefits of full-
time employees (i.e. partial-load employees would not). For this reason, it is
important to look closely at a Teacher’s employment relationship with the
College to determine exactly how the parties intended to treat that particular
relationship for the purposes of the collective agreement. . . .
47. I have some concerns about considering work as distinct simply
because it is contained in a different contract. The College controls and
administers the contracts. If the form of the contract was dispositive of the
issue of an employee’s status, it would effectively permit the Co llege to
undermine the terms of the collective agreement through administrative
action.
48. Such an outcome was rejected by Arbitrator Jesin, in Algonquin
College, [2016 CarswellOnt 19306]. In that case, the union grieved the
employer’s use of an ongoing rotation of sessional Teachers to fulfil its
teaching needs for a particular program. The employer argued that it had not
declared there to be a full-time position, and so was not required to staff the
work as a full-time bargaining unit position. Arbitrator Jesin stated that the
employer had the discretion to determine whether to assign work and how to
assign it, but did not have the discretion to deny the existence of a full -time
position on the basis of that assignment.
49. This case supports the principle that the nature of an assignment or a
position should be determined with regard to the work itself and the collective
agreement, and not by the College’s administrative handling of that
assignment.
[emphasis added]
These principles are valid and important. However, the evidence in the St.
Lawrence case is very different from the case at hand. In the case before me, we
are not dealing with a classification or a “complementary function” that is
mentioned in the Collective Agreement, see Article 14.03 A3. We are dealing with
Program Assistant duties that the College recognizes as academic in nature.
However, this is a function that is not referred to, per se, in the parties’ contract.
The St. Lawrence decision gave great weight to the fact that the role of a
Coordinator is part of the body of work performed by Professors or Teachers.
Reliance was placed on Article 14.03 A3, wherein it recognizes that “Coordinators
28
are teachers who in addition to their teaching responsibilities are required to
provide academic leadership in the coordination of courses and/or programs”,
[emphasis added]. Because Sessional status is not defined by the number of
hours of “teaching” in the Collective Agreement, it was concluded that the parties
intended that Sessional status should be determined “with regard to the type of
assignment full-time bargaining professors have, which may or may not . . . include
teaching more than 12 hours per week” (para. 65). Accordingly, the assignment as
a Coordinator was taken into consideration in determining the employee’s status:
61. To determine whether an individual is a full-time employee for the
purposes of being a sessional, the most logical reference is other full-time
employees. Those would be the full-time professors in the bargaining
unit. Those individuals are assigned work pursuant to Article 11, which
contains a complicated formula of determining the quantum of work that has
been assigned. There are two key components in that Article that are
relevant to the instant case. One is that there is no specified amount of
teaching that must be performed by a full-time bargaining unit member. The
other is that in addition to teaching (or even, as noted in Article 11.01.D3 (ix),
in lieu of teaching), a full-time bargaining unit member may be assigned
complementary duties, which would include things like program coordinator
work.
62. As such, a full-time bargaining unit employee’s workload may be
comprised of any combination of teaching (with no specified minimum of
teaching) and complementary duties. . . . .
65. . . . . if the parties had intended that sessional employees
must teach more than 12 hours a week, they could have easily defined that
term in that way. After all, they did so for part-time and partial-load. Instead,
they chose to define them by reference to ‘full-time employees’, which is what
full-time bargaining unit professors are. The fact that they chose to do so
must be given significance. The only reasonable conclusion is that they
intended sessional status to be determined with regard to the type of
assignment full-time bargaining unit professors have, which may or may not
be include teaching more than 12 hours per week.
A different approach was taken in an award concerning Seneca College1, referred
to in the St. Lawrence decision. In the Seneca College case, the Union had
1 [20] O.L.A.A. No. 534
29
argued that a Teacher should be deemed to be a full-time employee because of
Coordinator duties being assigned in addition to 12 hours of teaching on a Partial-
Load basis. Arbitrator Starkman considered the situation created by the nature
and combination of the two assignments and what he properly called the “unclear”
interplay of the relevant Collective Agreement provisions. He reasoned and
concluded as follows:
21 The remedy the Union seeks is to have Partial-Load Professors
treated and paid as full-time Professors for the period in which they
performed Coordinator Duties. This might have the result of depriving
certain departments of a Coordinator, or greatly increase the cost of
providing Coordinator Duties. On the other hand, if the College's proposal is
accepted and can assign Coordinator Duties to Partial-Load Professors
whenever it wishes, it would deprive full-time employees of the opportunity
of performing such functions and would permit the College to assign Partial -
Load Professors a mix of contact teaching hours and other duties which
could require them to work more than twelve hours per week, should they
wish to do so, and would also ignore the wording of article 14.03 A 3 which
references remuneration for such assignments to be compensated by steps
on a salary scale, which is clearly a reference to Full-Time Professors.
22 This Board finds the words used by the parties to express their
intention with respect to the assignment of Coordinator Duties to Partial-
Load Professors to be unclear and ambiguous and in these circumstances
has chosen to give the words an interpretation that best respects the words
used and makes labour relations sense. Article 14.03 A 3 requires the
College to assign Coordinator Duties to Full Time Professors provided there
are Full time Professors willing and able to accept the assignment. If,
however, after making reasonable efforts, the College cannot find a Full
Time Professor(s) willing and able to accept the Coordinator Duty
assignment, the College can then exercise its management right to assign
the Coordinator Duties to a suitable Partial-Load Professor who is willing to
accept the assignment, and to pay such Partial-Load Professor one or two
steps greater on the Partial-Load pay grid. This result is the only way this
Board of Arbitration can find to give meaning to the language used by the
parties, and to arrive at a result that makes labour relations se nse.
It is acknowledged that the issues and submissions in the Seneca College case
are somewhat different than in the case at hand. However, the Union was seeking
the same result in both cases, i.e., that any additional duties that fall within a full-
30
time Professor’s workload formula and salary schedule should be factored in for
purposes of attributing Sessional status to a Partial-Load appointee. What must be
noted is the fact that the Seneca decision did not accept the Union’s proposition
that the addition of Coordinator duties to the 12 teaching contact hours morphed
the Partial-Load appointment into a full-time position. Instead it was decided that
the additional assignment should affect the employee’s placement on the Partial -
Load pay grid under Article 26. In other words, the Partial-Load status was
maintained.
Both the St. Lawrence and Seneca decisions place weight on the concept of
whether the additional responsibility as a Coordinator amounts to the work of a
Teacher or “teaching”. In the case at hand, the Union has suggested that anyone
who “teaches” more than 12 hours per week must be recognized as a full-time
employee and that “teaching” in the role of a Program As sistant would bring the
Grievor’s teaching hours above 12 hours per week. The College pins its argument
on the fact that the Grievor was assigned only 12 teaching contact hours in his
Partial-Load contract and asserts that this 12-hour limit defines his status as a
Partial-Load Teacher. Both parties have focused their arguments on the concept
that the number of hours of “teaching” can be used to determine employment
status. Would that it could be so simple!
The number of assigned teaching hours does not alone define an employee’s
status. As the parties stipulated, there are full-time Professors with less than six
teaching contact hours per week. Their full-time status derives from both the
nature of their other assignments and the duration of their appointments, as
recognized in Article 11.01 B 1. Therefore, the number of “teaching contact hours”
alone may not be determinative of status. Nevertheless, it is agreed that if
someone is assigned to “teach” more than 12 hours per week, they should be
recognized as full-time Teachers.
31
Since this case can and should be decided on the basis of whether the Grievor
was assigned to “teach” more than 12 hours per week, the grievance must fail
because of the limited nature and responsibilities attached to his duties and
responsibilities as a Program Assistant. As was recognized in the St. Lawrence
award, “the type of work” is of great relevance. In the many cases cited above
when there has been a question of whether an employee’s work encompasses
“teaching”, arbitrators have consistently held that “teaching” involves more than the
delivery of course content. “Teaching” under this Collective Agreement also
involves the responsibility for the preparation and the delivery of curriculum and for
the assessment of the students’ progress and overall achievement [see St.
Lawrence, at para. 50, and Fanshawe College and OPSEU (OPSEU File 89A160),
supra; Fanshawe College and OPSEU, Re, 1990 CarswellOnt 5437, supra;
Humber College of Applied Arts & Technology and OPSEU, Re, supra ; Fanshawe
College and OPSEU, Re, 1997 CarswellOnt 7424, supra; Fanshawe College and
OPSEU, Local 110 (99C250), Re, supra; Fanshawe College and OPSEU
(01C054), Re, supra; and St. Lawrence and OPSEU, supra].
The evidence in this case does not support a conclusion that the Grievor was
engaged to “teach” when he was engaged as a Program Assistant. Unfortunately,
the College has not created a Job Description for the Program Assistant role. One
hopes that this will soon be rectified, for everyone’s sake. However, Mr. Larock and
Professor Kozodoj provided reliable evidence of what was expected of a Program
Assistant. The role of a Program Assistant is to help the students and the
Professors. The Program Assistant role was created to enhance student retention
and success by providing technical and practical assistance in the clas sroom, in
the lab and to students who need one-on-one catch-up for missed classes or other
extra help. There is no reason to reject the Grievor’s eviden ce that he was asked
to assess certain technical aspects of students’ work that were within his area of
specialization and outside of the realm of the course’s full-time Teacher’s
expertise. However, the fact that a course Teacher accepted a Program
Assistant’s opinions or recommendations on some aspects of students’ particular
32
assignments does not elevate the Grievor’s role to one of responsibility for the
evaluation of the students’ overall achievement. The evidence did establish that
the Grievor was also called upon to demonstrate and explain topics, technologies
and equipment. He took this seriously and went to the trouble of preparing
materials for the students to aid in their learning. However, as a Program Assistant
he was not paid or expected to do this “prep” work and it is unclear how much of
this preparation was for his Partial-Load or his Program Assistant hours. Further, at
no time did the Grievor have responsibility for the overall delivery of the course
objectives when he functioned as a Program Assistant. Accordingly, someone who
is not responsible for students’ evaluation and feedback, not expected to engage in
course preparation and who bears no responsibility for the delivery of the course
cannot be deemed to be engaged as a Teacher. Simply put, Program Assistants
are not hired to “teach” or as a “Teacher who teaches” within the meaning of those
words under this Collective Agreement.
This case is different from St. Lawrence where it dealt with Coordinator duties and
it was said, “While Coordinating may not be teaching, coordinators are Teachers”,
(para. 51). However, the uncontradicted evidence of the IMD’s Program Chair was
that Teachers/Professors are never assigned Program Assistant duties. Article
11.01 F 1 prescribes that “complementary functions appropriate to the professional
role of the teacher may be assigned to a teacher by the College.” Coordinator
duties are recognized as complementary functions that fall under the full-time
Teacher/Professors’ Salary Schedules in Article 14.03 A3. However, the evidence
in this case does not support the conclusion that Program Assistant responsibilities
are assigned to Professors or equate to the “functions appropriate to a professional
role of a teacher”, as contemplated by Article 11.01 F.
While there may appear to be some overlapping functions between a Program
Assistant and a Teacher, the relationship is not reciprocal. A Program Assistant’s
value in the classroom, in the labs and with students individually, is recognized as
“academic work”, and the Grievor may well have “taught” some aspects of the
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courses, within the everyday meaning of this word. However, as the St. Lawrence
decision quite properly advises, “the nature of an assignment or a position should
be determined with regard to the work itself and the collective agreement” [see
para. 49, emphasis added]. The Grievor’s work as a Program Assistant was to
assist, not to “teach” or take on the responsibility for the functions that are
appropriate to the role of a Teacher, as this word has long been applied with
respect to this Collective Agreement. Accordingly, on the basis of the evidence in
this case, this grievance must fail.
This conclusion is reinforced by examining the implications of the result if this
grievance were to succeed. If the Union is correct, the Grievor’s duties as a
Program Assistant would be considered to be “teaching” and calculable under a
Professor’s workload formula in Article 11. The Union suggested that his 24 hours
a week as a Program Assistant should be equated to 13 teaching contact hours for
purposes of a Standard Workload Formula. Without even trying to see how one
would apply the workload formula to the Grievor’s limited scope of responsibilities,
or the fact that there were not “scheduled teaching hours”, one would have to
accept the Union’s contention that the Grievor’s Program Assistant duties would
amount to more than 12 hours per week of teaching contact hours. This alone
would qualify him for full-time status. Given the duration of his Program Assistant
assignments over 24 months, he might then qualify for the roll-over. Given that he
was also respected and talented enough to be h ired as a Partial-Load Teacher,
that might not lead to an unendurable result in these particular circumstances.
However, the implications are far reaching. It could mean that someone else
engaged only as a Program Assistant for 24 hours a week and who was continued
on that basis for a period that met the duration specified in Appendix V would be
entitled to be deemed to be a full-time employee, entitled to the roll-over provision.
Program Assistants are hired from the ranks of existing students or recent grads.
Many have inadequate academic credentials for a full-time position. If they
acquired full-time status and/or qualify for a roll-over by virtue of their Program
Assistant work alone, this would circumvent the Collective Agreement’s job posting
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provisions that require preference to be given to full-time and current Partial-Load
Teachers for full-time vacancies. Could the parties have really intended that a
Program Assistant could secure a full-time permanent position as a Professor,
effectively passing over more qualified full-time or Partial-Load colleagues? It is
difficult to imagine that the parties contemplated such a result. Full-time and
permanent employment is a highly sought-after and important status; it is not easily
achieved or conferred by this Collective Agreement.
This leaves open the question of what happens when a Partial-Load Teacher is
assigned 12 teaching contact hours and other duties that are “non-teaching”
duties? What should be the result? Should any work encompassed by the
workload formula in Article 11 be taken into consideration in determining an
employee’s status? This would compel the combination of hours assigned to a
Partial-Load appointment with hours under a different assignment in order to
establish whether the true nature of the relationship fits within Appendix V. In
theory, this should be possible because form cannot prevail over substance. As
emphasized in the St. Lawrence decision and as pointed out to these parties in
Algonquin College, supra, a College should not be able to avoid Article V or the
benefits of full-time status simply by divvying up assigned work into separate
contracts. In other words, the reality of the employment relationship as a whole
must be examined in the context of the Collective Agreement.
However, there are several aspects to the parties’ contract that lead to the
conclusion that they did not intend to treat all academic work equally for the
purpose of workload credit, status or compensation. This is evident by the discrete
treatment of Partial-Load appointments. They are excluded from the application
and operation of the full-time workload formula by Article 11.02 F 12. They have a
specific compensation scale, based on teaching contact hours and their placement
on the grid on the basis of the factors set out in the Classification Plans, i.e.,
relevant teaching and/or occupational experience, relevant qualifications and the
person’s particular importance to the program [see Article 26.03 A]. This is a very
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comprehensive compensation structure. It allows for flexibility beyond teaching
contact hours.
One must also note that the Collective Agreement’s Class Definitions of Professor,
Counsellor and Instructor contain overlapping duties, such as being “responsible”
for the “tutoring and academic counselling of students” and “evaluating student
progress/achievement”, to name but a few. This is consistent with the Union’s
suggestion that “teaching” may be a broad concept. It can encompass many of the
duties listed under the Collective Agreement’s class definitions for Professors,
Instructors, or Counsellors. However, where the Collective Agreement and the
statute define employment status on the basis of the number of hours that a person
will “teach”, the nature of that assignment must be critical to a determination of
their status. No one suggests that an employee can be considered to hold two
classifications associated with the same work or that the fact that one classification
may be doing some of the same aspects of another classification entitles them to
the same pay or status. While the Union has asserted that any “type of
assignment” that a full-time bargaining unit Teacher/Professor may have should be
credited for purposes of determining status, the Collective Agreement allows for
aspects of Professors’ work to be shared by other classifications and done by non-
full-time employees. The Collective Agreement makes it clear that overlapping
responsibilities or even the same work may not necessarily trigger the same rate of
pay, entitlements or status. Instead, one must look to the reality of an employee’s
core functions, their assigned hours, the duration of their employment and/or the
nature of their assigned work.
The St. Lawrence and Seneca cases have taken different remedial approaches to
the same issue respecting Coordinator duties. One ordered a financial remedy
under the Partial-Load provision, while the other deemed that the additional duties
warranted a change of status. This Award cannot reconcile those two cases. Nor
does the Collective Agreement’s current language or the parties’ able submissions
reveal a cohesive alternative approach. The two previous cases’ divergent
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approaches and the parties’ continuing differences signal the parties’ need to
clarify the language that gives rise to confusion and leads to grievance arbitration.
Since this Award deals with the duties of Program Assistants, this is not a situation
where it is appropriate or possible to resolve all potential issues that may arise with
regard to any other assignments beyond 12 scheduled teaching hours or 12
“teaching contact hours”. Each case must turn on its own facts and the nature and
extent of an employee’s assigned duties. T he parties are encouraged to clarify
their language in future bargaining. Otherwise, each situation will continue to need
to be resolved on a case-by-case basis, where the particular facts will compel the
result.
It should also be noted that the parties provided bargaining and past practice
history, suggesting that opposite conclusions should be drawn. As is often the
case, none of that evidence helped to resolve the complexity created by the ir
contract’s “unclear” language. It simply illustrates a consistent pattern of the
Colleges applying the part-time, Partial-Load and Sessional distinctions on the
basis of the number of teaching contact hours and the Union’s continuing attempts
to challenge some of the implications that might flow from that.
This Award must conclude by giving recognition to the individual Grievor, Ken
McGinn. His situation is very compelling. It is clear that he worked hard to meet
his personal commitment to “better” the IMD Program. He prepared tutorials, gave
demonstrations, kept abreast of his students and emerging technologies. He often
went above and beyond the duties expected of a Program Assistant. He treated
his Program Assistant role with the same dedication as his Partial-Load teaching
assignment. This was despite the fact that he was paid considerably less for his
many hours as a Program Assistant than he was paid for his assigned Partial-Load
teaching hours. The conclusions in this Award are not meant to discount his hard
work or the contributions he has made to the IMD Program. The conclusions in this
Award are based on the nature of his assigned duties, as they apply to the
operation of the governing statute and Collective Agreement.
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Therefore, on the basis of the analysis outlined above, the grievance must be
dismissed.
Dated at Toronto this 19th day of July, 2018
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Paula Knopf - Arbitrator