HomeMy WebLinkAboutDurham 04-04-30
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IN THE MATTER OF AN ARBITRATION
BETWEEN:
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'FANSHAWE"CO1LEGE-- - "-- --
(THE COLLEGE)
AND:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(THE UNION)
AND IN THE MATTER OF THE GRIEVANCE OF MICHAEL DURHAM
BOARD OF ARBITRATION:
HOWARD D. BROWN, CHAIR
R.J. GALLIVAN, COLLEGE NOMINEE
JON McMANUS, UNION NOMINEE
APPEARANCES FOR THE COLLEGE:
ROBERT J. ATKINSON, COUNSEL
LINDA BALLANTYNE, DIR. H.R.
JOY WARKENTIN, SENIOR V.P. - ACADEMIC
APPEARANCES FOR THE UNION:
HILARY COOK, GRIEVANCE OFFICER
GARY FORDYCE, CHIEF STEWARD
MICHAEL DURHAM, GRIEVOR
HEARINGS IN TIllS MATTER WERE HELD AT LONDON ON
SEPTEMBER 25, 2003 AND JANUARY 29,2004
AWARD
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The grievance dated June 19,2002 is a claim that the Grievor was unreasonably
denied his professional development leave contrary to Article 20.01 (xii) of the collective
". ','" ~greent~ntandseeks. prqfessional develC;>Prnent leav~in, accordanc~witb. Qis application for
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such leave, as amended by the'Grievór who 'requests: , "',
"a written declaration that my P.D. leave should have been
approved as requested as per my original proposal of
February 12, 2002. I am seeking as well financial
compensation for the Colleges unwarranted interference
with my career plans and the disruption and inconvenience
they have caused"
as set out in a letter to Howard Rundle, President of the College. The matter was then
referred to arbitration under the provisions of the collective agreement and came on for
hearing" as above noted. There is no dispute as to the Board's jurisdiction in this matter.
The Grievor was a Professor of Fine Arts with 34 years of service with the College
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and made an application for professional development leave from September 1, 2002 to
August 31,2003 in his application dated February 12, 2002. He had not previously
requested or obtained a professional development leave. He was a teacher in the first-year
, Painting and second-year Multi Media courses and for Canadian Art history at the College
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and was a class advisor for the third year program on a tutorial basis. He used as a
precedent for his application, a successful application of another Professor in his
department, Patrick Thibert. His application for leave was signed by his supervisor Frank
Rodgers on February 25, 2002 indicating that:
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"the proposed P.D. activities compliment the changes in the
program content in the Fine Art Program in which the
..GrievortaughC'. . . .- . . .
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The Grievor indicated in his application for leave that his intent was to travel in
Canada, England and the U.S.A. to obtain exposure to major art museums and galleries
and to work out new approaches to projects for his courses. As well, he would read
books and magazines on recent Canadian Art and would have exposure to lands of ancient
cultures. All of which would enrich and be a greater benefit to the students and the
courses he taught and give him a chance to become more current in his thinking.
The Grievor's application for Professional Development Leave was approved by - - ..-
the President subject however, to the conditions as set out in hi~ letter dated May 31,
2002. The Grievor did not agree with the conditions attached to .that -approval which led: --. - -
to Mr. Rundle's response dated June 11, 2002 as follows:
"Thank you for your memo of June 7, 2002. From this '
memo I understand that you have rejected the College's
offer of a PD leave as contained in my memo to you .of--
2002-05-30.
I understand that the College remains open to consider a
professional development leave for you with some
additional activities that would more clearly enhance your
ability upon return to the College to fulfill your professional
responsibilities. In additional, of course, compliance with
College Policy I-B- 7 with regard to copyright provisions is
-also necessary.
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Please feel tree to meet with your chair and/or
Joy Warkentin if you wish to pursue a professional
development leave in the coming year."
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The collective agreement provides for Professional Development Leave in Article
20, the material parts of which in this dispute are:
"20.01 The College recognizes that it is in the interests of
employees, students and the College that employees are
given the opportunity by the College to pursue College-
approved professional development activities outside the
College through further academic or technical studies or in
industry where such activities will enhance the ability of the
employee upon return to the College to fulfill professional
responsibilities.
20.02 (iv) the employee, upon termination of the
professional development leave, will return to the College
granting the leave for a period of at least one year, failing
which the employee shall repay the College all salaries and ._. ...
fiinge benefits received by the employee while onn
professional development leave;' -
(vii) All applicants will be notified in writing by the College
President as to the disposition of their application for
professional development leave;
(viii) The College may on its own initiative propose plans of
. professional development leave to employees; however no
employee shall be under obligation to accept such a
proposal;
(xii) An applicant who is denied professional development
leave shall be notified in writing ~f the reasons for the
denial. Approval of an application for professional
development leave shall not be unreasonably withheld;"
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The policy manual of the College with regard to Professional Development Leaves
require an application with supporting documentation submitted to the employee's
.. <immediate$upervisor for support which is then sent to the staff de"elopmentsection ..
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.whic& proëésses theapplicatioris to ihè Presidêrit whcièorisults with his management ..
committee and "will make decisions regarding the approval of applications and notify each
applicant as to the disposition of their application". Furthermore, it is provided that:
"All rights and copyrights on work produced during the
leave shall be the property of the College if they were
produced during paid employment time unless otherwise
stated in a signed written agreement between the College
and the employee. Prior to their leave, employees affected
by this section must contact the Vice President, Academic
to arrange and agree on these details."
The President with the Management Committee reviews all the applications for
leaves in March to approve, deny or to return them for further details. In this matter, the
application of the Grievor was sent back to him to discuss further details with his
supervisor as to how the College would benefit from his leave. Thereafter,
Frank Rodgers wrote to the Grievor on April 19th as follows:
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"Follow up to our discussion about your sabbatical
proposal. As I suggested there is work that can be done
developing course and resource material for Art History
courses for the Fine Art program. The other suggestion
involves planning and researching a summer art program.
These would be supportable additions to your sabbatical
proposal. "
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This was followed by the President's letter dated May 30th referred to above which set out
the conditions for the approval by the College of the Grievor's sabbatical leave. The
. <Mevor þy memodaled]une 7,2002 rejected !heConege's cp~ditions but offered 10.. .... .
explain his rationale for that rejection as follows: . . . .. .
"It appears that the discussions I had with Linda Skinkle
and Frank Rodgers were not relayed to you. I had told
them that I was not in agreement with the conditions that
the college added to my professional development
application.
I would be happy to explain to you my rationale for not
accepting the college's conditions. I feel that my
application has met the college's criteria. My application,
when submitted, was supported by F. Rodgers. My
application has substantial PD activities that benefits both
myself and the college.
I am still interested in completing my professional
development as per my application. .."
This was followed by the letter fÌom Mr. Rundle to the Grievor dated June 11 th noted
above which was followed by the grievance.
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The Grievor testified that the conditions placed by the College on his application
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would prevent him fÌom travelling to various places iri North America and Europe which
he had planned by the condition requiring him to take a University course at the University
of West em Ontario and said he knew as an exhibiting artist, those teachers of their courses
and would not benefit fÌom the course which he could also teach. In his classes, he uses
slides, books, as well as showing students physically how to paint and draw so that it is
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important for him 10 know what is happening in the creative art processes which along
with museums and art galleries, he would visit and had trips scheduled, would help in his
.. teachingbe~usehe wOlddlookatthe re~workthe artists we~e doing and a1~owould '. .. ... ..
. pi~kùp s~desänd b6okÚ'elatirigtõ'.thëHistorY course ~hicii\vouldbe-ä-benefit to him..
It was not suggested that he teach in a new area and he said he was not told what
was wrong with his proposal for leave but rather the College gave him other things to do
which would prevent him trom canying out his plans during the leave. He was not asked
for clarification of his proposal or for more specifics of his plans for the sabbatical leave.
He said there was no real interest shown and felt that Mr. Rundle who had refused his
application did not know much about his proposal. The conditions which he set out and
attached to the application were impossible for him to do. He offered to meet with
Mr. Rundle and requested an appointment trom his secretary but said that he did not
receive a response. - .....
The Grievor said that he had only been told that there was not enough substance in
his application but they did not understand that what he was going to do was a crucial '
aspect of his Courses and not just for his amusement during his leave as he assumed they
felt it was. He said he would have dealt with the copyright issue as soon as his proposal
for leave had been accepted. This is a quite common process as it was not appropriate to
complete that matter until he obtained his leave. He acknowledged that he is required to
give something back as a benefit to the College as a result of his leave and said that he
would have come back sharing the benefits with the Fine Arts program as during his leave,
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he would read, do painting in his studio, travel to museums and galleries in the six trips he
had planned.
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Mf; Durham said that he 'talked with Frankltodgêrs anumber'oftimesabouthis
proposal for leave but did not ask if he could do anything to correct or improve his
application to give it substance and was not told what was missing. He said the College
required something for him to do during the period of his leave which would prevent him
trom carrying out his original proposal. He agreed that Mr. Rodgers told him that they
wanted to make the leave happen and that he had responded that he should be given a
sabbatical leave on the basis on which he applied and not give him something he could not
do. He refused to deal with these negotiations and to talk to the Vice-President -
Academic but offered to meet with the President. He was adamant that the condition
which would prevent him ITom doing what he intended was not acceptable and saw no
reason to negotiate on that point. He received the memo trom Mr. Rundle dated June 11 th
but thought he was referring to the following year and did not respond to that offer. He
retired trom employment with the College on June 30,2003.
Gary Fordyce attended a meeting with the Grievor and Frank R~dgers on May 27th
when they discussed the conditions for the acceptance by the College of the Grievor's
application for leave. He said that it was impossible for the Grievor to meet their
requirement for him to take a University course during the leave which was not acceptable
as it would prevent the Grievor trom his travel plans. Mr. Rodgers told them that the
decision was by Senior Administration and he could not change that result. Mr. Fordyce
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said what the College proposed was to have the Grievor work at the 70% salary rate paid
during his sabbatical leave for work he would normally do as a teacher at full salary. He
... to~dMr. RQdgers that if the Collegewouldchang~ the conditions forthe leave,it could be. . .
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negotiated but th~. appiic~ti~n was n~t Successful and said he did nbtse.è áriy£lexibilitY by .
the College.
Joy Warkentin as a member of the President's Management Team Was involved in
considering sabbatical leaves and in the application of the Grievor for leave in the 2002-03
Academic Year. She said that each application is considered and approved or further
information and clarification may be required using the criteria of the professional
upgrading of the Professor and the proposed benefit to the College and students. As to
. the Grievor's application, it was considered that it needed strengthening. on the aspect of
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benefit to the College as well as the copyright protection. She said it was very clear in the
Grievor' s application that what he proposed would improve the expertise of the Grievor in
his art courses in that his content related to his professional capacity but they could not
see the benefit to the College and required something more tangible than what he
described in his application. The staff consultant Ms. Skinkle and Mr. Rodgers were '
asked to tell the Grievor of the College's concerns and work with ~to strengthen his
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application so it could be returned for approval. She said they talked about the possibility.
of taking a University course by the Grievor during his leave but said they were open to
other possibilities however, attempts to talk with him to have changes made, did not
occur. Therefore, they decided to approve his application for leave with conditions in the
hope that the changes they thought would be appropriate could be made, prior to the
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leave. She said she was open to other suggestions but the Grievor did not speak to her
about his application or the copyright. She was told that the Grievor refused to see her.
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" It is the submission fot the Union that the College Ii1ûstshow puiSüantto Article'
20.02(xii) that it was not unreasonable when it denied the Grievor's application for
Professional Development Leave. The application did not include regular work of the
Grievor which the College would require at a discount and should not be required to teach
at the College during his leave. There was no bargaining as to the change of conditions
for his leave. The Grievor wanted to make himself more current in his involvement with
students which would have a positive effect on the courses he taught with his travel to art
centres and commercial art galleries to be current in the art field. His application was
based on a 'prior proposal of a Professor which had been accepted by the College and, the
Grievor's application was approved by his Supervisor. The terms of the collective
agreement must be preferred to those contained in the College Policy Manual.
The College approved his application subject to the conditions set out in the letter
of May 31 st. The copyright issue would have been dealt with upon acceptance and
approval of the leave application but the Grievor did not agree with the condition that he
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be required to take an art course at the University level during his leave which would
make it impossible to do the other things that he proposed in his application. It was not
unreasonable for the Grievor to reject this condition which he did not have to accept but
to remain with his original application for leave that he had submitted which was clearly
denied by the College. Approval by the Collegë was therefore unreasonably withheld as
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the College placed impossible conditions to the Grievor's initial application for
Professional Development Leave.
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0- .. The submission fortheCòllege is thàt tIleUniòri bas théonus to establish thaÚn°
withholding the application for Professional Development Leave by the Grievor, it acted
unreasonably and breached the collective agreement. The College however, had approved
the application with conditions and was open to other suggestions and wanted to approve
the Grievor's application and did not therefore act unreasonably. It is for the College to
approve a leave application consistent with the terms of being a benefit to the College. As
well, the employee must return to the College after the leave for a period of at least one
year pursuant to Article 20.01(iv). The decision of the College was given by the President
as to the disposition of the Grievor's application and was approved with conditions. The.
Grievor did not respond to that disposition except by presenting his original application
for leave. The College is not required to accept an application but to act reasonably in the
exercise of its discretion under this Article.
With reference to Re Algonquin College and OPSEU (McLaren, October 16,
1995), it was submitted that a Professional Development Leave is not ~ holiday but
involves a different kind of work with only reliefftom teaching at the College during this
period but it is no less ora work assignment. The President's Management Team who
reviewed the Grievor's application found that there was not enough tangible benefits to
the College and requested an enhancement of his application which had little detail or
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content and asked it be amended and returned to them. The Grievor however,
resubmitted his original leave proposal without changes and had not met with
... .¡\1s: :War~e~tinab.out .tbe c~pyright.and .did not makæ any other.suggestions to the College
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.ab6üÜhecontent of his application for the year conuriendng September 1002. It was ..
submitted that the College did not act unreasonably and contrary to Article 20.01(xii) as
alleged by the Union and therefore there is no basis to allow the grievance.
The burden of proof lies with the Union to establish that in the circumstances of
the Grievor's application for Professional Development Leave that the College was in
violation of Article 20.0 1 (xii) in that its approval had been unreasonably withheld. It is
not whether the Grievor was reasonable in his request for leave and in his reaction to the
letter from the College dated May 30th concerning his appliœtion but rather the Board
must examine the circumstances of the Grievor's application for leave with specific regard
to the conditions for such leaves expressed in Article 20 of the collective agreement. The
conditions for Professional Development Leave are specifically set out in Article 20.01
clearly indicating that the leave must be approved by the College involving professional
development in "further academic or technical studies. .." which will "enhance the ability
of the employee upon return to the College to fulfill professional resþo~ibilities". The
Policy Manual of the College indicates criteria in reviewing an application for such leave
so to "to enhance the ability of the employee, relate to the plans of the department, arid
further the goals objectives and strategies of the College" which fall within the context of
Article 20.01 as to the fulfillment by the employ~e of professional responsibilities.
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That was a consideration of the opinion of the President's Management Team
-\Vhichlookedat the. upgrading pfthe Professor as well as the benefit totbe College in..
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- considering the Grievór' s appli~atïoI1for leave. . It was the latter aspect that the -.
Committee considered necessary to be strengthened by the Grievor while acknowledging
the Grievor's plans would be of benefit to him. The Grievor was told of their concerns
and expressed that the Staff Development Officer and the Dean could work with the
Grievor to strengthen his application which they wanted to approve. The Grievor
however responded to Mr. Rodgers that the condition was something that he could not do
and refused the negotiation and requested his sabbatical leave on the basis of which he had
initially applied. The conditions set out in the President's letter dated May 30th were not
acceptable to the Grievor as indicated in his memo to Mr. Rundle dated June 7th which led
to the notice of rejection of his approval by memo dated June 11th. We are satisfied that
the reference in that memo to the "coming year" is specific to the year for which the
Grievor' s application was made as the whole tenor of the correspondence and discussions
related to the Grievor's application for Professional Development Leave for that year and
it is therefore reasonable to conclude that is the intended reference of Mr. Rundle in that "
memo by which the application was rejected.
The Grievor did not continue with an application for Professional Development
Leave nor take any leave in that year and retired as a professor in the College as of June
2003. The condition of the collective agreement therefore to return to the College
following a Professional Development Leave could not be made effective. The Grievor
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did not meet with Ms. Warkentin to deal with the issue of copyright to discuss options for
the two conditions applied by the College or about any other suggestions for his leave
" -,,' ",' 'plans ,~:~erre~~,~y~<~~dge~~,'~~~..~e~o'd~~e~ M~Y:31ñ;:f~~~~~ ~:.~u~,cl~e~ s: ,',: ,- ~,.' - ',',' "", . ",~', '
" respon~ëon Måy3'Óth to the Gnevó"é 5' application'-' Havmg regard to'the President's' ,", ..
approval with conditions, it was then the responsibility of the Grievor to change his
application for leave in relation to the concern of the College and as clearly the application
was open for further discussion and suggestions which could have led to an amended
application which could have been approved without condition as the College wanted to
do had there been subsequent objective communications as was suggested by the
Grievor's supervisor.
That did not happen b~ca~se the Grievor took the adamant positioIl_~hat he could
not take a University level course and pursue his interests which he had included in this
application for leave and found that the imposition of the condition was a banier to any
further consultation. The Grievor's position however, was not consistent with what the
College intended or requested him to do for a reconsideration of his application for leave.
The message to the Grievor was that the College wanted to approve his application but "
'needed more details which could reasonably have been provided by ~e Grievór in a"timely
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manner. Unfortunately, the Griever's personal resentment of the action of the President
and his advisors in rejecting the Grievor's initial application for leave was clearly at the
root of his failure to pursue his application for Professional Development Leave in the
context of the College requirements for such leave.
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The issue in this grievance is whether the College unreasonably withheld its
approval of the Grievor's initial application for leave which he resubmitted to the
'.' ,-:,' -,pres~den.twithOUt-"am~ndm,~nt:'T~~Board ho~ever, mu~,~d(>ntl1~e~~~nce,_t~attl}e-, -,--'::'-' , .' - . " -,
, ., - College acted in accÒtdancewith its obligations uridêi Atticie 20' and therefore-riof- - ' u-
unreasonably in the rejection of the Grievor's application for a Professional Development
Leave. In the Grievor's refusal to consider any amendment to his application for leave in
the context of the College's requirement that it be convinced that his leave would "fulfill
professional responsibilities" as set out in Article 20.01 was the factor on which his
application failed. We find that it was not an unreasonable action of the College to require
the Grievor's application to include terms to satisfy the College that this condition
expressed in Article 20.01 was met. The President's disposition of the Grievor's
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application required under Article 20.02(vii) in denying the application of the Grievor for - - ,,_u -- '-_n. ,
Professional Development Leave was not therefore unreasonably withheld contrary to
Article 20.02(xii) as alleged.
Having regard to the evidence and the submissions of the parties and for the
foregoing reasons, the Board must conclude that the Union has not established a violation' ,
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of Article 20 by the College. It is therefore, the Board's award that the grievance is
dismissed. ° ."" 00- "0 0 0
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Dated at Oakville this 30th day of April, 2004.
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Howard D. Brown. Chair
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RJ. Gálliv~ College Nominee
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Jon D. McManus, Union Nominee
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