HomeMy WebLinkAboutChilton & Dewar 18-07-311
IN THE MATTER OF A WORKLOAD RESOLUTION ARBITRATION:
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 354 (the Union)
AND
DURHAM COLLEGE (the College)
RE: WORKLOAD COMPLAINTS OF DAVE DEWAR AND WILLIAM CHILTON (the grievor)
Appearing for the Union: Chris Harris and others
Appearing for the Employer: Rebecca Milburn and others
WRA: Norm Jesin
Hearing Held: June 18, 2018
Date of Decision: July 31, 2018
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AWARD
These are two workload complaints alleging that the College provided SWF’s to each of
the grievors less than 6 weeks prior to the commencement of the grievors’ teaching assignments,
contrary to Article 11.01.2 A 1 of the collective agreement between the parties. The facts giving
rise to the complaints are as follows.
At the end of the winter semester in 2018, the grievors were each notified that they would
each be teaching an electrical apprenticeship course in the spring semester in 2018. This
assignment arose because a situation that the College was unable to foresee. In particular that
College received late notice that the person originally assigned to teach both courses was unable
to fulfill that assignment. As a result the College was forced to find pe ople to teach four courses
with little advance notice. The grievors were each assigned one of the courses and two of the
courses were assigned to part time teacher who are excluded from the collective agreement.
There was no advance discussion of the assignments. Instead, SWF forms outlining the
assignments were provided to the grievors less than two weeks in advance of the assignments.
This resulted the grievors being required to do some intense preparatory work during a time that
they would otherwise have a non-teaching period during which they could perform other
functions.
It is conceded by the College that Article 11.02 A 1 requires that SWFs be provided at least
six weeks in advance of the assignments and that it did not meet the requirements of that Article
in this case. At the same time Union does not dispute that late provision of the SWFs in this case
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arose because of unforeseen circumstances unforeseen by the College. The parties acknowledge
that the courses could all have been assigned to part-time teachers who are excluded from the
collective agreement.
The Union seeks compensation to the grievors in an amount determined by a formula first
awarded by Arbitrator Whitehead in Niagara College, October 23, 1995. In that case seven
professors were given SWFs less than six weeks before their assignment in violation of Arti cle
11.01 A 1. Arbitrator concluded at p. 7 of his award that Article 11.01 A 1 establish a mandatory
requirement that the SWFs be provided at least six weeks prior to the assignment. In his award
the arbitrator determined that an award of damages should be made to compensate the grievors
for the loss. He further determined that because of the difficulty in precisely what the loss would
be, he establish a formula that could be applied for all of the grievors even though the
circumstances relating to each grievor were not identical. The formula he applied was to multiply
the number of weeks that the SWF is late by the number of 3 (maximum hours of overtime per
week that a teacher was permitted to work) and further multiplied by .1% of a teacher’s salary.
This formula was applied to all seven grievors in that case although not all the circumstances
relating to each grievor were identical. At p. 11 of his award the arbitrator stated:
I realize also that this formula may not satisfy the College because it applies
equally to all seven teachers when the actual level of inconvenience may
well have varied from teacher to teacher. However, this formula applies
only in the cases where SWFs are issued late. … While this award applies
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only to these seven teachers, the formula has the advantage of providing
a reasonable, administratively feasible, and expeditious way of dealing
with complaints of late SWFs if the parties so choose.
In the case before me the Union submits that I should apply the Whitehead formula as a
basis for determination. The Union asserts that application of the Whitehead formula would
result in a payment to each grievor of $1,304.64. The College does not oppose application of the
Whitehead formula in principle. However, the College seeks a modification of the Whitehead
formula to reflect the fact that the grievors were assigned less than a full time load in the
semester at issue. However, because the grievors in this case were assigned one course – that is
less than a full load, the College seeks a reduction in the Whitehead formula proportionate to the
degree which the assignments in this case were less than a full load. In the case of Mr. Dewar,
the College calculates that the grievor should be paid $441.49 and in the case of Mr. Chilton, the
grievor has discounted the amount he should be paid even further.
There is no question that the late provision of the SWFs had added to the preparation
work that the grievors were required to do over the short period prior to the commencement of
the course. I accept that the Whitehead formula applied in different circumstances. However, as
far as I can tell, none of the grievors in the Whitehead case were only assigned one course on
their SWF. In the unusual circumstances before me I agree that it is appropriat e to reduce the
Whitehead formula by some amount. However, I do not think it is appropriate to reduce the
amount in the proportional way suggested by the College. Indeed, it has not been established to
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my satisfaction,that the preparation required to teach additional sections increases
proportionally with each section assigned. Rather, the assignment of the first section likely results
in the largest amount of increased preparation required. In my view a reduction may not
generally be appropriate. However, given that each grievor was only assigned one section in this
case, in my view, it is appropriate in this case to compensate each grievor in the amount of
$850.00 due to the extra work arising from the late issuance of the SWF.
As a result it is my determination that the College pay each grievor the sum of $850.00 in
compensation for the late issuance of the SWFs in this case.
I remain seized to deal with any difficulty in implementing this award.
Dated at Toronto, this 31st day of July, 2018.
______________________
Norm Jesin