HomeMy WebLinkAboutAhmad 04-03-03
IN THE MATTER OF AN ARBITRATION
BETWEEN:
HUMBER COLLEGE
(THE COLLEGE)
AND:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(THE UNION)
AND IN THE MATTER OF THE GRIEVANCE OF SHAH W ASI AHMAD
#02AO14
BOARD OF ARBITRATION:
H.D. BROWN, CHAIR
JACQUELINE CAMPBELL, COLLEGE NOMINEE
SHERRIL MORRAY, UNION NOMINEE
APPEARANCES FOR THE COLLEGE:
W.J. HAYTER, COUNSEL
APPEARANCES FOR THE UNION:
GEORGE RICHARDS, GRIEVANCE OFFICER
ROBERT MILLS, CHIEF STEWARD
FURTHER HEARINGS IN THIS MATTER WERE HELD AT TORONTO ON
APRIL 25, MAY 8,9, AND OCTOBER 28,2003.
2
AWARD
The grievance which was filed in accordance with the tenus of the collective agreement
between the parties concerns the denial of the College of a merit increase for the Grievor
relating to his perfonnance as a Professor in the Academic Year 2000- 200 1 as well as a claim
that he had been unjustly disciplined by a Letter of Warning dated
August 27,2001. The Grievor requests reinstatement of his salary step increase effective
September 2001 and removal of the Letter of Warning ttom his personal file.
It was agreed by the parties that the Board has jurisdiction in this matter. The Board
has reference to two Interim Awards issued on May 16,2002 and November 8, 2002.
Following the completion of the evidence and submissions for the parties in this matter, the
Board met in executive session on November 11,2003 to consider the issues ofthe grievance
and the preparation of its award which is set out herein.
The College denied the annual increment to the Grievor on the basis of his poor
perfonnance in the preceding academic year which it claimed was at least as poor as in the prior
academic year in which the increment had also been denied which was not grieved. The
College withheld the step increment in accordance with its application of Article 14.03 A 2 (a)
as follows:
"Annual increments to the control point are based on
experience, at the rate of one step for each completed year on-
the-job experience. Above the control point, but not beyond
3
the maximum, one step will be granted where perfonnance in
the past year was satisfactory. For the purposes of this
paragraph the following shall be considered as on-the-job
experience: leave for union activities, paid leave of absence,
secondment. "
The Grievor was also given a Written Warning dated August 27,2001 by letter of the
Dean, Bob Moulton, which in part sets out his concerns leading to the disciplinary Written
Waming which was placed on the Grievor's employment file as follows:
" A review of your record indicates that there have been
several consultational meetings between myself and yourself
with respects to your work perfonnance. Most recently, in
May 2001, we met to discuss your conduct with students and
challenges you made to them regarding their evaluations. In
February 2001, we addressed the results of a Fall 2000
classroom visit and Student Feedback Questionnaires and
made recommendations on how to improve your perfonnance
in the classroom. Also, on August 29,2000 we met to discuss
the lateness of your course outlines, which necessitated several
calls to your home, we also discussed, at that time, the fact that
you would not be receiving a step increase due to your overall
poor perfonnance as detailed in the responses on Student
Feedback Questionnaires ttom Winter 2000.
One purpose of this letter is to bring to your attention
the results received from the Winter 2001 Student Feedback
Questionnaires. The details are as follows: ...
As a result, I must advise you that, given the results
above, your perfonnance over the past year is unsatisfactory.
Pursuant to Article 14.03 A 2(a) you will not be receiving your
annual increment in September 2001, and you will therefore
continue remain at Step 19..."
4
Reference was also made by Counsel for the College to the Class Defmition contained
in the collective agreement for a Professor which states in part:
"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...
b) The teaching of assigned courses, including. . .
c) The provision of academic leadership, including:. . ."
The College also relied on the Student Feedback Questionnaires (SFQ) which the Board earlier
ruled are applicable in the period between September 1, 2000 and August 31 or September 1,
2001 and stated:
It is the circumstances of that period of time which are
relevant to the Board's decision on this issue."
Robert Moulton testified that he discussed the Grievor's perfonnance with him in the fall
of 2000 as to a need to improve his perfonnance. The Grievor was directed to work with the
Program Department for professional development for that Academic year. The preparation of
5
course outlines are the responsibility of a faculty member and are required in the Spring prior to
the following academic year commencing that fall and are nonnally provided in June prior to the
faculty member leaving for summer vacation. Faculty members are also required to attend the
orientation week prior to the commencement of the Fall tenn. He said that neither by June
2000, the Grievor had not provided his course outlines nor had he done so by the start-up
week prior to the Fall tenn and had not attended the cluster activities in the orientation week.
He met with the Grievor on August 29th when he told the Grievor that his absence ttom the
orientation week was not acceptable and that his course outlines had not been turned in on time
which could lead to disciplinary action. He also infonned the Grievor that because of his overall
perfonnance and especially of the student complaints in the SFQs, that he would not be
receiving his perfonnance increment for the coming year.
Mr. Moulton subsequently received a memo from the Associate Dean,
Stephen Bodsworth dated November 8, 2000 in which among other items, reference was made
to a student complaint as to the perfonnance of the Grievor which they discussed. This was to
be followed by a class survey as a result of an ongoing problem that they had been addressing
with the Grievor. He instructed Mr. Bosworth to conduct a class audit which would involve his
observation ofthe Grievor's classroom which he did on November 29th. It was reported after
that visit that the classroom management was confused and said he was depressed when he left
the class.
6
SFQs are issued to the students typically in late October or early November with their
responses compiled by computer following which Mr. Moulton obtains a Chair Summary
applicable to each faculty member. The student comments are referred to the faculty member
and he sees only this summary which are usually available about a month after their compilation
but these were not available until the next semester as a result of a delay in the computer
program. Mr. Moulton reviewed the SFQ summaries which he reviewed for the Fall and
Winter tenus of the Grievor pointing out the warning signals of the percentage of disagreement
by the students with the Professor. He detected an inability to get material across to the
students, a lack of feedback with the students and poor class management where the students
came in late and were not paying attention. He said that he conducts an open forum each
semester where the students can air their concerns and which he attended in February 2001. At
this meeting, there were issues raised as to the Grievor's perfonnance in the classroom and
several complaints about lack of understanding and communication with the professor.
The Winter tenn SFQs were issued in February, the outcome of which were generally
not too positive. He agreed that there had been a change in the program in the spring of 2000
when there was low enrollment for the third year in the course which was then cancelled except
for those students who had finished their second year and were returning for the following year
but those in their fIrst year of the course would not have a third year available. He did not feel
that this change had an effect on the SFQs in the fall of2000. He said he did not see any
improvement in the SFQs in the winter tenn 2001 ttom what he had seen in the Fall tenn as to
the Grievor's perfonnance.
7
Mr. Moulton referred to a discussion with the Grievor on April 20th when he reported
that a number of students:
"were concerned about challenges you had made to them re
their responses on the students' evaluation fonn for one of your
courses. Apparently, they were told that they had erred
because of the impact the responses might have on the security
of your position at Humber College. They were somewhat
intimidated by your reaction and now fear they will be punished
by having their [mal mark lowered. . ."
Mr. Moulton said he was concerned based on the report ttom Mr. Bodsworth in this matter
that a faculty member would intimidate students based on their response in their SFQ. The
Grievor's response that he had been encouraged by Ruth McLean while taking professional
development to "talk with students following their evaluation as part of a continuous
improvement strategy", was of a concern to him as it would reinforce the results of the SFQs
that the communication was not clear in the class but was conÍÌ"ontational. The report ttom Mr.
Bodsworth of his meeting with the Grievor on
April 20th continued as follows:
"It was understood that student evaluations are meant to be
fonnative and not punitive. That faculty are encouraged to gain
further feedback ttom students but at no time are students to
feel intimidated that there will be negative repercussions if their
responses are not positive or, at best, ambivalent. You are
cautioned that the College takes such matters very seriously and
8
that there were obvious consequences to such behaviour
towards students.
You made a commitment to focus your efforts toward
improving the delivery of courses assigned to you and that you
welcomed any feedback and support you were given. . . "
Mr. Moulton issued the written warning based on the Grievor's failure to meet the Class
Defmition of a Professor, to provide academic leadership and develop an effective learning
environment as set out in the collective agreement. He said that he uses the same measurement
of the perfonnance of each faculty member consistent with that defmition. He does not
compare the perfonnance of faculty members but considers only whether a faculty member
meets that Class Defmition.
Mr. Moulton said that a class audit of a professor is one of the factors used as an
indicator to judge a professor's perfonnance. It is College policy that notice of a class audit is
to be given to a professor of the day of the visit to which a professor could respond. He was
not told that the Grievor did not receive such notice or that it was not a good class to visit on the
day chosen by Mr. Bodsworth. He was of the opinion that one class audit is indicative of an
overall standard. He said that about 100 teachers report to him and have as their goal an
effective learning environment for the students but in his judgment ttom the results ttom his
classes, the Grievor is a poor teacher. He however, does not doubt that the Grievor has a
reasonably good pass and fail rate in his classes but that factor does not in his opinion, connect
to reaching the goals ofthe College. He had not examined the Grievor's tests to see ifthey
9
were appropriate nor did he look at any ofthe Grievor's class assignments as to clarity. He did
not question that the Grievor had posted his hours when he was available to the students and
had not questioned students who had complained about the Grievor's unavailability. He
accepted that the Grievor met his five hour obligation but should have made more time available
for his students. Reference was made to Article 11.01 F where it is set out that an allowance
within the five-hour total weekly workload shall include "three hours for routine out of class
assistance to individual students" but said he accepted the overall statistics ttom the SFQs that
the Grievor was not sufficiently available to the students.
Stephen Bodsworth is the Associate Dean in the School of Applied Technology and is
responsible for the teaching quality in the School including student concerns and faculty
evaluations. He said that the SFQs have been used since 1986 as a tool in those evaluations of
faculty. He testified that he met with the students of the Grievor on October 26th in his office at
their insistence following which he wrote a memo to the Dean reflecting their concerns at that
time which included their major problems with the Grievor's teaching. He said he did not see
the connection between those concerns and the cancellation of the third year program. He
testified that he made a class visit on November 29th at the Dean's request and that he had tried
to contact the Grievor the day before the visit but saw him outside of the classroom on the day
of the visit and said the Grievor did not express any concerns about his visit to the computer lab.
He said he was there for an hour of observation of the students who were involved in a project.
The Grievor gave them instructions and clarification of the project and he and the Grievor
observed what they were doing. He also noticed six students who wandered in late to the class
10
which caused a disturbance without apology as well there were students not paying attention to
the Grievor while he was giving clarifications about the assignment. He said that some students
did not know what the class was about or what was expected of them and had congregated
around two or three students who knew the questions. He was in the class for about fifty
minutes for his observations.
The SFQs were given to the students on November 29th which was in the 14th week of
the 16-week semester. His report of the class visit was not given to the Grievor until February
after he had an assessment of the SFQs which were not received until well into January. He
was also aware that the Grievor was working with Ruth McLean on professional development
during this tenn. The individual student's comments written at the bottom of the SFQ are given
only to the professor. He prepared a memo concerning the class visit and the result of the
SFQs on February 28th but said that he had tried to contact the Grievor in January to review the
class visit but they had not met at that time. He said there was some correlation between the
SFQs and what he had observed at his class visit in that concerns were raised by the students
as to what was expected and what they were learning.
Following preparation of his memo to the Grievor on February 28,2001 which was
copied to the Dean, concerning his class visit in November and the SFQs he reviewed it with
the Grievor who said that he would continue to work on professional development with Ruth
McLean. Mr. Bodsworth does not receive any feedback from that program. He then referred
to the meeting with the Grievor on April 20th and the subsequent memo to the Dean dated May
11
8th when they discussed the students' concerns about alleged challenges to their responses to
their evaluations on the student component of the SFQs which are given to the faculty member.
He said the Grievor had given them the impression that these responses put the security of his
teaching position in jeopardy and feared that they would be punished with lower marks. The
Grievor told him that he had been encouraged by Ms. McLean to follow up with the students
after their evaluations as part of his improvements. They discussed the intent of the evaluation
which was for infonnation and not punitive and that while faculty are encouraged to obtain
feedback ttom the students they should not feel intimidated and he cautioned the Grievor that
the College takes these matters seriously.
The summary of the SFQs ttom the Winter semester in the Engineering Program
involved only 8 of23 students which were printed which he said was a flag that somethingelse
was going on in the class having regard to the results of the SFQs which were not satisfactory.
In his class visit, he said that students were not paying attention and some did not understand
what they were expected to do and there was not an effective learning process in the class ttom
what he observed. He believed that the students were disrupted by noise while they went on
with their assignments and wandered around the classroom conversing with other students
which should have been stopped. Some students were late for class and he expected them to
apologize to the Professor rather than joining the class but had not done so. He agreed there
were three rooms required for this project and two plotters were located in another room used
by the students which caused some to be late arriving in the Grievor's classroom.
12
On April 20th, he met with the Grievor concerning students' reaction to what they
thought was his intimidation and referred to his memo to the Dean dated May 8th. He said the
students came to his office and told him they felt threatened and said his memo reflects his notes
of that meeting. He said there was nothing improper for the Grievor to have such a discussion
with the students but should not intimidate them and there was no need to be afÌ"aid of the results
of the SFQs which are not used for punitive purposes.
Mr. Bodsworth did not know if the Grievor completed his course outlines in June before he
went on vacation but they were not received until August 25th. He said there had been some
problems which had delayed his course outlines.
The Grievor testified that he is a professional engineer holding a M. Eng. fÌ"om Western
University in 1984 and has been a Professor at the College since 1986 prior to which he
worked as a tool and die designer and engineer following employment in India. He testified that
every week he puts his hours of availability for discussion with the students on the blackboard
and that is made known to them at the beginning of the tenn and said it is well known that he is
available in his office to meet with students. After he received the SFQs in April 2001, he
wanted to fmd out about the discrepancies when only 8 of 23 students responded but did not
discuss the impact of their responses on his job security. He had contacted Ruth McLean to
learn how to improve his SFQ results starting in the spring of 2000 and had consulted her about
techniques. The Grievor received the memo dated February 28th on March 8th fÌ"om Mr.
Bodsworth who talked to him about his class visit and the SFQs. He said he learned about the
class visit just before he was to start the class and that had he known of the visit in advance, he
13
would have said it was not suitable for a visit because of the printing and plotting required of the
students who were working on the project which was scheduled at the end of the semester. He
said that in this class, he used a chalkboard and computer projector which he wanted the
students to use rather than looking at him and take notes as he wrote on the board. He said
some of the students were in the plotting room before they came to the lab and were then told
about the requirements in the course. He moved around the class and looked at what they had
produced on their screens and responded to their questions. He said it was an individual
project but there was emphasis on a group effort which is common in projects involving
computers. One group involved was in Mechanical Design and the other in CNC and have
common courses but come ttom different backgrounds and with two software packages used in
the production of drawings.
The Grievor said that he always provides on- going detailed instructions to the students
and gives them the results of their projects. Outside of the class, he uses e-mails and office
hours to review their work. He always keeps regular attendance and is never late for class.
Students however are not obliged to attend classes but always checks the students in the class
and observes their work and gives advice as to their shortcomings in the course objectives.
He said that he received his teaching assignments in the late spring and prepared his
course outlines which were printed and copies sent to the Chair in May prior to his summer
vacation. Programs were changed over the summer, one of the course outlines he had
submitted was no longer required and he was asked to teach an additional course. As well, he
14
had to provide outlines in Microsoft fonnat rather than Word Perfect which he had used to
prepare the course outline in May. He returned for orientation week on Monday, August 21't
and was sick on Tuesday and Wednesday and on his return on Thursday was told to do three
course outlines again by that Friday as a deadline, the revisions on which he worked at home
though still sick. He fmished the course outlines on Friday and sent them on Sunday to the
Programme Co-ordinator over the internet and on Monday, provided him with the hard copies.
He said there was discontent among students in the Manufacturing School with the
curriculum and course fonnat and the sudden changes in the program including the cancellation
of the third year in the mechanical cluster which was announced in the winter of 200 1. After the
third year, graduates could proceed to a university which would give credit for the three year
course. In his letter to the Dean dated October 4,2001, he wrote:
"These students vented their anger on everyone in the system.
Being the first in the line of sight, the faculty could not escape
the students ire. Being most directly involved with the affected
programs, more than anyone else, I was on the receiving end of
adverse students comments. . . "
In cross examination the Grievor said that he did not nonnally discuss SFQs with the
students in that the students' comments on these fonns about faculty are personal and not
involved in any decision. He had however, followed the advice of Ruth McLean who told him
to raise these matters with his students so that he discussed the SFQs with two different groups
15
of students in the Design and Dynamics courses. As to the course outlines, he said he provided
three course outlines to the Co-ordinator, Ed Espin on
May 20, 2000 in Word Perfect which he told Mr. Moulton at in their meeting on
August 29th. He said that he was sick during the Orientation Week and could not get the
required revised course outlines before Friday but had then sent them to Ed Espin on Sunday,
August 27th on the Internet followed by hard copies. He said he attended on Monday of the
Orientation Week but was ill with the flu on Tuesday and Wednesday and provided a doctor's
note for August 24th. He said that on Thursday moming, Ed Espin told him to convert his
course outlines to Microsoft and as he was not familiar with that program he could not complete
those outlines by Friday as requested but was only one day late.
The Grievor said that there are a number of teachers involved in the courses so that
course outlines are distributed amongst the teachers with the preparation of outlines given to
those persons who traditionally teach the course. He prepared course outlines for the courses
he taught on May 14th and gave them to Ed Espin on May 20th. He said that Mr. Moulton did
not ask him about a specific course in their meeting in August or explain the practice for the
preparation of outlines in the department and said the Dean was not prepared to listen when he
maintained that he had provided the course outlines for which he was responsible.
The Grievor agreed that it was expected of a Professor to provide an effective learning
environment for students and that their feedback is of some value as is a classroom visitation but
which are not the only relevant factors. He accepted that some improvement was required of
16
him and had been trying to make an extra effort through professional development counselling.
He said the students are told that the SFQs are used to improve the classes and had used his
students' not to intimidate or threaten them but to deal with discrepancies on the fonus. These
fonus are not used to create adverse assessments when students are critical of the professor
and are not used by Faculty in a manner adverse to the students.
The Grievor said that on the morning of Mr. Bosworth's class visit, he had received an
email at 8:15 a.m. about the visit and was met outside of the Design class which started at 9:55
a.m. with others who were waiting because the prior class had not fmished on time. He did not
mention to Mr. Bodsworth of his concern of this class visit but had he had advance notice of the
visit, he would have told him about the class project which was scheduled for that day and
which he discussed with the students at the start of the class along with the nature of the work to
be done. Students would be talking to others in the class in the use of the computer program as
some had different backgrounds for that class. Some students were in another room to use the
plotter which could have made them late for his class but students were going ttom or coming
into the classroom or engaged in interaction with other students on the computers. He said that
this was not a basis to consider that it was not a satisfactory class. He had walked around the
class to remind the students what was required and had answered their questions during which
time, there was no class instruction.
The Grievor disagreed with the recommendations indicated by Mr. Moulton in his
memo dated February 28,2001 and said he was always trying to improve and was taking
17
professional development counselling. He said that he was regular in his attendance and always
punctual and kept student attendance. He gave the students their objectives and a summary of
the class. He said that his perfonnance on the day of the class visit was quite satisfactory. He
recognized the value of the SFQs but said they do not correlate to his perfonnance as a teacher
and felt he was satisfactory but he would not disregard the results of the SFQs. He continued
to take professional development to improve his evaluations. He said the cancellation of the
third year courses had a very strong influence and was a factor in the results of these SFQs as
the atmosphere following the notice of the cancellation had some affect on these students'
evaluations. He agreed that the fall and winter course summaries show a high degree of
dissatisfaction and did not deny that they did not look good and admitted a weakness.
The Grievor met with some students after the March break and the distribution of the
SFQs for the Winter tenn as he was concerned with the discrepancies on the fonns and
intended to fmd out what the students' expectations were in order to match his conduct with
their thoughts. At that meeting, he had discussed his availability to the students and their
comments that he was not clear in class as well, whether the questions as answered on these
fonus were a fair indication of their concerns. He did this to fmd a way to improve himself and
not to create concerns for the students and denied the discussion was coercive but that he tried
to emphasize that it was an effort to improve himself.
The submission for the College is that the Grievor had been notified that there was a
need to improve his perfonnance as a Professor and was aware of the standards to which he
18
was being assessed under the class defmition of a Professor in the collective agreement which
included academic leadership and a requirement to develop an effective learning environment for
students. The College relied for the purposes of discipline on whether there was satisfactory
perfonnance by the Grievor with reference to one of the factors of the SFQ as being a relevant
evaluation of the academic leadership of the teacher. The questions in the SFQs are relevant to
these standards and have been used at least since the Grievor was employed by the College in
1986, as part of the evaluation process. The Grievor was required to produce course outlines
prior to the summer vacation in 2000 but it was Mr. Moulton's evidence that he did not receive
them nor on an enquiry made of
Mr. Espin that he had he received them ttom the Grievor nor was his explanation given by the
Grievor at their meeting on August 29th. So that in its submission, the Grievor's evidence should
be rejected as to the preparation and timely production of the course outlines as required.
There was no corroboration of the Grievor's testimony by Mr. Espin who was not called as a
witness ttom which an adverse inference should be drawn by the Board in rejecting the
Grievor's evidence in this matter.
As a result of a student complaint, Mr. Bodsworth made a class visit to audit the
Grievor's perfonnance in class on November 29,2000. His evidence of his observations of the
Grievor in that class is consistent with the student complaints about the Grievor. It was
submitted that the Grievor lacked insight and did not care enough to see a problem with his
perfonnance in the class but concluded Mr. Bodsworth's report of that class audit as positive
but which was in fact critical of his teaching.
19
It was submitted that the most serious issue in this case is the intimidation by the Grievor
of the students after receipt of the winter tenn SFQs as indicated in the complaints of the
students at that time who were concerned according to
Mr. Bodsworth's memo dated May 8, 2001 about his challenges to their responses on the
evaluation fonns yet the Grievor did not see any legitimacy for their comments. The students felt
threatened when he had enquired about their reasons for the discrepancy between the SFQs
comments and the reality which presupposes that he was right. This was the wrong way to
perfonn his job as a teacher. The incidents involving the Grievor with students spans two
semesters with consequences that were not consistent with his providing effective teaching and
academic leadership for the purposes of receiving a step increment. A written warning which is
the lowest level of discipline was issued to bring to his attention the necessity of changing his
methods and to improve his perfonnance as a Teacher with reference to those concerns. As a
result of the Grievor's failure to recognize his need to improve his classroom teaching and to
provide a positive learning environment for the students as set out in the written warning letter
dated August 27, 2001 justified this disciplinary action.
The submission of the Union is that the College relied on hearsay evidence of the SFQs
because no students were called as witnesses to the nature and content of the Grievor's
statements in class and therefore the SFQs cannot be the sole basis for a finding of fact by the
Board as that evidence is not reliable. The discipline issued on August 27th was unreasonably
issued in that at the meeting on April 20th, there was no indication that discipline would be
20
imposed either then or in the memo of Mr. Bodsworth dated May 8th to indicated that they had
not believed the Grievor's explanation. The Grievor accepted their comments as counselling
and not discipline and did not challenge the report. It was submitted that one brief visit to audit
a class is not sufficient to show the Grievor's perfonnance was not satisfactory. The details of
that visit in November were not reported to the Grievor until February and prior to when the
Grievor received the second set of SFQs which made it difficult for him to make any
improvements ifhe had poor perfonnance. There was no evidence of a follow-up class visit by
Mr. Bodsworth to check the Grievor's perfonnance. That circumstance is not justification to
withhold the Step Increment. The Grievor was not advised in time of the visit which was a lab
class on a die design project which did not involve teaching as much as a description of what
was required of the students which instructions the Grievor gave at the outset of the project in
the class but it was not the best forum to view the class. There was a problem with the software
used by students who were taking different courses with other requirements. There was no
suggestion that there was a fundamental communication problem in that class.
It was submitted that the SFQs were used as a significant factor to withhold the Step
Increment yet the College considered these evaluations as fonnative and not punitive according
to Mr. Bodsworth's memo dated May 8th. Reference was made to the memo of Richard
Hook, Vice President, Academic who on January 20th referred to the SFQ that as initially
developed "was explicitly intended as only part of total faculty evaluation". It was also
stipulated that data ttom individual classes would not be relied upon but rather than any
21
assessments by a manager would be based upon cumulative results and would only pertain to a
specifY portion of the fonn. . ."
On this basis, it was submitted that the College was wrong to use the SFQs as a basis
for discipline in August as it is a report designed to help the teacher rather than being a
disciplinary measure which process was not followed by the Dean and was unfair to the
Grievor. There was no evidence of any standard which was used by the College for salary
progression for Professors. The class defmition in the collective agreement is used to
differentiate the Professors :trom other employees but is not a measure of their quality of
perfonnance. There is no evidence of what standard the College uses as to the perfonnance of
other teachers and without such comparative data it is submitted, it cannot be found that if the
Grievor was being fairly treated with the reliance of the College on the SFQs relating to the
Grievor without a comparison to other Professors. The College discounted the Grievor's
explanation of his problems which were outside of his control as well as his undertaking of
professional development. Even using the class definition as a standard, it was not established
that the Grievor's perfonnance was not satisfactory without detailed infonnation relating to the
headings in that definition or of ancillary areas to the role of a Professor. Reference was made
to Re Algonquin College and Civil Service Association of Ontario 1 LA.c.(2d)94 (Weatherill).
It was further submitted that the relevance of the evidence concerning the Grievor's late
provision of the course outlines is debatable as any delay in August is not relevant to the
academic year of 2000/0 1 as the College referred to the prior year. Alternatively, if it is found
22
that the course outlines were relevant to the current year, it is a very small part in the overall
decision and the Grievor's explanation with the problem of the change in the computer program
and his illness should be accepted as his explanation of the delay of a few days which was not
senous.
Firstly, the Board fmds on the evidence that there is no basis for the imposition of
discipline against the Grievor by a written warning dated August 27,2001. While there were
obvious difficulties and concerns of Mr. Moulton and Mr. Bodsworth of the Grievor's teaching,
there was no evidence to connect those concerns with any fonn of resistance to authority of an
insubordinate nature or any other fonn of culpable conduct which would support the right of the
College to impose discipline against employees under Article 6 of the collective agreement as
we fmd on the evidence that there was no cause for the warning to be issued and placed on the
Grievor's employee file.
The concerns of the College as expressed by Mr. Moulton in the letter of warning relate
to the Grievor's perfonnance and the alleged challenges made by him as to their evaluations as
well as the reference to the class visit and lateness of the course outlines. None of these
headings involve the Grievor in any inappropriate and culpable conduct towards the
administration of the College for which discipline could be justified. While there are obvious
differences in the perception of the College as to the Grievor's teaching perfonnance ttom
those of the Grievor, there was an admission of the necessity for his improvement and he had
entered into a professional development program as suggested which continued through the
23
winter tenn 200 1 and was in effect while these incidents referred to in Mr. Moulton's letter of
warning and his recommendations therein, were made. The evidence does not demonstrate any
reasonable cause for disciplinary action but is contrary to the concept of using disciplinary
penalties as corrective of an employee's behaviour which is clearly not relevant to the issue of
the Grievor's perfonnance as a teacher during the period of evaluation. We accept the
Grievor's explanation of his reason to discuss the results ofthe evaluations with the students to
have, as directed in his professional development programme, more personal contacts and
feedbacks as to his perfonnance. Without direct evidence of adverse effects of this meeting as
set out in the letter of warning, we are not prepared to find that the Grievor intended or did
engage in any inappropriate conduct with his students. More particularly, we cannot conclude
ttom the evidence that the Grievor intended and had intimidated or had engaged in a reprisal
against the students but rather his direct evidence is that his intentions were misconstrued by the
students. That may have resulted ttom his manner of speaking to them but this incident was not
established as his conduct of the Grievor to justifY disciplinary action.
The alleged late provision by the Grievor of his course outlines was reasonably
explained by the Grievor whose evidence we accept in this regard at the hearing, that he had
filed a doctor's note with regard to his illness in the orientation week and that the conversion of
the course outlines to another computer program took him some time to complete. In total, he
was not rejecting the request to submit the revised course outlines but was delayed for these
reasons by a day or two and had a valid excuse for his absence during the orientation week. It
is not necessary in these circumstances for the Board to detennine whether in fact the Grievor
24
had delivered his course outlines on the word perfect system to Mr. Espin in May before he left
for summer vacation as that was not a concern until August when the circumstance which
caused the one or two days of delay in providing the revised course outlines was adequately
explained by the Grievor. Weare not persuaded to draw an adverse inference from the
absence of testimony by Mr. Espin as we fmd that he would not be a necessary witness to be
called in this regard.
The second issue is the denial by the College of the Step salary increment to have been
effective in September 2001 under the tenus of Article 14.03 A 2 (a) in which it is stated as a
condition for such payment, "where perfonnance in the past year was satisfactory."
The SFQs are part of an evaluation process of Faculty and as set out in
Mr. Hook's memo which indicated that:
"data fium individual classes would not be relied upon but
rather that any assessments by a Manager would be based
upon cumulative results and would only pertain to a specified
portion of the fonn. . ."
On the evidence, there can be no doubt that Mr. Moulton based practically a total
reliance of the results of the SFQs in the fall and winter tenn together with one class visit in
November by Mr. Bodsworth along with a reference to the Class Definition of a Professor in
the collective agreement to assert that the Grievor did not provide:
25
"a positive learning environment to our students and this
feedback is an indicator that you are not meeting this
requirement. Furthennore since we have reviewed the SPQs
over several semesters there appears to be a continuing pattern
of behaviour."
in order to conclude that the Grievor's perfonnance was not satisfactory and that a Step
increase would not be paid.
There can be no doubt on the face of the SFQs that problems as to the nature of the
Grievor's teaching in class was defective in the problem areas of reference on these fonns. The
Grievor had acknowledged that improvements were necessary and had agreed to undertake
professional development which as noted above, he had continued though these teaching tenus
and which caused him to obtain student feedbacks. The SFQs however, were delivered late in
both tenus which did not give the Grievor time to improve his teaching methods based on his
program of professional development, within that academic year. Further, the only class visit
made by Mr. Bodsworth in November turned out not to be of a regular class but a class project
at the end of the tenn and was not shown to be a fair assessment of the Grievor's classroom
teaching. In that circumstance, there should have been a follow up visit with proper notice to
the Grievor who could have had an input as to an appropriate class for such an evaluation but
which was not undertaken. The result of this class visit was not brought to the attention of the
Grievor until some four months after the event by which it lost its value as an evaluation indicator
of deficiencies of perfonnance as the Grievor was not given a fair opportunity to deal with Mr.
Bodsworth's criticisms ttom that class visit and make adjustments. A second class visit after a
26
critique was given of the class visit in November would have resulted in our view, a more
objective and reasonable evaluation of his teaching.
We do not fmd on the evidence that SFQ results are considered as the standard for
Faculty evaluations but are guidelines for improvements to the learning environment but here the
evidence discloses that Mr. Moulton relied on the SFQ student responses as an evaluation
standard for the purposes of Article 14.03 A 2 (a) as set out in the written warning. The results
of these SFQs are hearsay evidence which and cannot be relied on by the Board to base a
rIDding of the facts relied on by the College in denying the step increment. Mr. Moulton's
decision in this issue was clearly set out in his letter, that the evaluation of the Grievor's overall
poor perfonnance "as detailed in the responses and student feedback questionnaires from
winter 2000" detennined that the Grievor's perfonnance for the purposes of Article 14.03 A 2
(a) was not satisfactory. SFQs are not to be used in a punitive fashion and are only part of
evaluation of Faculty so that there are limitations as indicated in the memo of Mr. Hook to the
use and application by the College of the SFQs. The reliance of the College on the results of
these fonns are not established as the standard of evaluation for Faculty nor are the SFQs in this
case confinned by evidence on which the Board could rely.
The Class Defmition of a Professor in the collective agreement provides the headings by
which an employee in that classification is differentiated within the job classification plan ttom
other positions in the bargaining unit. Certainly, it is a guideline to be considered in the general
evaluation process of Faculty but does not constitute for that purpose a standard of
27
perfonnance on which to judge the application of the Step level payment provided in Article
14.03 A (2). Clearly, the College placed substantial if not exclusive reliance on the results of
the SFQs in denying the increment to the Grievor but this being designed only as part of an
evaluation process and that no common evaluation standard was established for the evaluation
of all Faculty, the Board cannot conclude on this fonn of evidence that the College established
that the Grievor failed to meet a teaching standard required by its Faculty and of therefore by
the Grievor.
For all of these reasons, we fmd that the College did not have cause to impose discipline
against the Grievor and that the Written Warning was therefore not justified. Further, the Board
fmds that the annual increment in September 2001 was improperly denied. Pursuant to Article
14.03 A 2 (a), therefore we fmd that the Grievor is entitled and shall be paid his annual
increment as of September 2001.
28
Having regard to all of the evidence and the submissions of the parties and for all these
reasons, it is the Board's award that the grievance is allowed. The Board will retain jurisdiction
as to the implementation of its award.
DATED AT OAKVILLE THIS 3RD DAY OF MARCH, 2004
HOWARD D. BROWN, CHAIR
JAQUELINE CAMPBELL, COLLEGE NOMINEE
SHERRIL MORRAY, UNION NOMINEE
.~~ ~"""....= r."'L
----- -----..-..... ---..- -~~
. -
DISSENT
This grievance deals with two issues: the imposition of discipline by written warning and
the denial of a salary increment for unsatisfactory performance.
I do agree that a teacher Whose performance is deemed to be unsatisfactory should only
be disciplined if the shortcoming identified is of a culpable nature. In this case, the
evidence dealt with the difficulties and conCerns the College had with respect to the
grievor's teaching and no indication was given that the grievor displaYed insubordination
in any way. However, I am troubled by the grievor's evidence in cross-examination with
respect to his exchange with students regarding the negative SFQs. Although the
Board has not reproduced the cross-examination, it is clear from the words that he used
when speaking to the students that their adverse reaction was warranted and
corroborates the substance of their subsequent complaint to Steven Bodsworth. Even if
we accept that the grievor may not have intended to intimidate the dass. that was
clearly the result. When asked if he was surprised that students may have been
intimidated he stated" some people could have that impression". In my opinion, the
grievor was aware that his comments to students could create an adverse impression.
This in itself raises an issue of culpable conduct and supports the College's concerns
with his overall peñormance.
With respect to the denial of the increment. the evidence is clear that the College was
justified in its concerns. The SFQs, student complaints, the classroom visit assessment
and the grievor'sown admissions during cross-examination aU point to a professor
whose performance could not be said to be satisfactory. The award contains several
references in this regard "there were obvious difficulties", "obvious differences in the
perception of the College as to the grievor's teaching performance from those of the
grievor" and there was an admission from the grievor of the necessity for improvement
which was the basis for his entering a profeSSional development program. The Board
also states" there can be no doubt on the face of the SFQs that problems as to the
nature of the grievor's teaching in class was defective in the problem areas of reference
on those forms". The delay in providing the grievor with the classroom visit assessment
does not negate the fact that his performance during that class was unsatisfactory.
The Board dismisses the SFQs as hearsay evidence. The fact is that this form of
feeback has been sought from students at Humber for more than 15 years and has been
a consistent factor in evaluating a professor's performance. There is nothing in the
collective agreement that requires the College to evaluate professors only having regard
to facts which might be admissible in an arbitration proceeding according to the laws of
evidence. The assessment of the students as stakeholders is obviously relevant to the
performance evaluation of a professor. There is no reason, therefore, why the College
cannot rely on this information.
'='1<1::5 762 1<1246 P.1<I3
..~" ~~ -~~~ ~~ -~'-'..-n H",r-.l:>I::.LL. r'lLor'lN' . '-'UN::>
. .
-2-
The Board also takes issue with the use of the class definition às a jstandard" for
performance evaluation. While I appreciate that "the class definition in the collective
agreement is used to identify the various job classifications, it can nevertheless be
considered as a standard for performance expectations of professors. Demonstrating
academic leadership, creating an effective learning environment cannot be said to be
irrelevant criteria in assessing such performance. These requirements are at the core of
what a professor does. If a common performance standard was established for the
evaluation of faculty. it is likely that these very factors contained in the cfass definition of
professor found in the collective agreement would be an important aspect of such a
standard.
For aU of these reasons, I would have found that the College was justified in denying the
griever a salary increment in September 2001 and that the grievance in this regard
should have been dismissed.
'?I~~ &t ~t!
Jacqueline Campbell
Employer Nominee