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HomeMy WebLinkAboutFriend 08-06-17 o IN THE MATTER OF AN ARBITRATION ONTARIO PUBLIC SERVICE EMPLOYEES UNION ("the Union") -AND- .'-...,/ SHERIDAN COLLEGE ("the College") CONCERNING THE WORKLOAD GRIEVANCE of prJessor John Friend ("the grievor" / "Professor Friend") BRIAN MCLEAN Workload Resolution Arbitrator Appearances: For the Union: David How John Friend For the College: Michael Arthur Megan Essex Workload Resolution Procedure held in Oakville on June 3,2008 \..J \....,; On or aboll;t April 21, 2008, I was appointed Workload Resolution Arbitrator pursuant to the collective agreement which binds OPSEU and the College. On the agreement of the parties, I conducted a hearing on June 3, 2008. Professor Friend complains that he has not been provided all of the professional development days to which he is entitled under the collective agreement. He seeks an Order that the College pay him thirteen days pay, which represents the ten professional development days to which he believes he is entitled this year, plus three days which were carried over from last year. The facts which give rise to his complaint are as follows. Under the collective agreement teachers are to be allowed ten professional development days each: 11.01 H 1 The College shall allow each teacher at least ten working days of professional development in each academic year. 11.01 H 2 Unless otherwise agreed between the teacher and the supervisor, the allowance often days shall include one period of at least five consecutive working days for professional development. 11.01 H 3 The arrangements for such professional development shall be made following discussion between the supervisor and the teacher subject to agreement between the supervisor and teacher, and such agreement shall not be unreasonably withheld. \.....J There is no suggestion that under Article 11.01 H employees are permitted to "carry forward" unused professional development days from year to year. In fact, in recognition of the workplace reality that it may be difficult to find suitable professional development programs and schedule ten professional development days in a year, it is not unusual for a teacher to fail to take hislher full allotment of professional development days in a year. There is no, dispute that professional development days not used in a given academic year are normally lost. In April 2007 the College and the Union entered an agreement which permitted four teachers, of which Professor Friend was one, to carry over five professional development days from the 2006-2007academic year to the 2007-2008 academic year. In other words Professor Friend was/is entitled to take 15 professional development days during the 2007-2008 academic year. The scheduling of the days was agreed to be decided upon in discussions between the four teachers and their supervisors. It seems that Professor Friend is a busy teacher. By March 2008, Professor Friend had not requested that the College schedule any professional development days for him. He believed that he did not have enough time in his "off' weeks in between his teaching terms. He felt that his time was fully occupied in his off weeks meeting with students and preparing for the next term. '-..-I o In March 2008 he became concerned that his summer teaching schedule would not permit him to take his professional development days. Professor Friend went to the College's Workload Management Group (WMG) to seek a resolution. At the WMG, the College identified a number of days, including one entire week, in which it believed that Professor Friend could conduct professional development activities. He did not accept this solution. In addition, the College became concerned that Professor Friend was treating professional development days as "days off' rather than a true opportunity for professional development. This concern arose out of the fact that Professor Friend indicated that the professional development he wished to engage in was to read a book relevant to his specialty. However, the book in question had not at the time (and as of the date of the hearing before me, still had not) been published. There is nothing at all wrong with taking professional development time to read appropriate materials. However, the fact that the only professional development which Professor Friend identified was to read a book that had not yet been published seems problematic. \.--/ Professor Friend ultimately did use two professional development days for other activities. However, he has not actually requested that he be provided with a professional development day on particular days. Nor did he do so at the hearing of this matter. Rather than taking days off for professional development, he wishes to be paid for unused professional development days because in his view there is no suitable time during which he can take his professional development days entitlement. DECISION In my view, it is clear from a reading of the collective agreement that it is the employee who is to primarily initiate the scheduling of professional development days. That conclusion arises from a reading of Articles 11.01 H 1-3 and from the practice of the parties. Article 11.08 is also highly persuasive on this point: 11.08 In lre€pin-g...with4he -professional responsibility of the teacher, non-teaching periods are used for activities initiated bv the teacher and by the College as part of the parties' mutual commitment to professionalism, the quality of education and professional development. (emphasis added) It may also be possible for the College to advise a teacher that it wishes the teacher to take professional development on a certain day and that the teacher cannot unreasonably refuse to agree to that request, but that is not an issue I need to decide. Apart from the collective agreement provisions and the parties' practice it only makes sense that teachers should normally initiate scheduling of professional development days because it is teachers who can best identify appropriate professional development activities in which they would like to engage. The College does not usually play any role '-....J in that process. o It is also clear from the collective agreement that professional development days are normally to be scheduled on days when the professor is not teaching. In this regard Article 11.01 B 1 states in part: 11.01 B 1 Total workload assigned and attributed by the College to a teacher 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 program 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. However, the College will permit professional development says to be taken during teaching time if the circumstances warrant. What is missing from the collective agreement is any specific process for the scheduling of professional development days. It would appear that the parties believed that these issues could be resolved by well meaning individuals acting in a professional manner. With these circumstances in mind, I have little difficulty in finding that Professor Friend's complaint cannot succeed. First, he has not actually reasonably requested that he be provided with particular days off to be used as professional days or identified what professional development he would engage in on such days. Such a request, it seems to 1"-,, me, is a precondition to any successful claim that the College had not provided an employee with the professional development days provided for by the collective agreement Second, the College offered Professor Friend a number of days in which he can engage in professional development activities during the remainder ofthis academic year. While two of those dates are now passed, others are in July and August ofthis year. There is no reason why the College would not make best efforts to find other days to replace the days which have passed if professional development activities can be identified for those days. Finally, I see nothing in the collective agreement which makes an award of money appropriate compensation in circumstances such as this. The scheme of the collective agreement is that employees are to be provided with professional development days. If the employee's workload is such that it is not possible to take the allotted days, then the employees SWF must be modified. I do not see that I have the authority to award pay in lieu. What has happened here is that the teacher has waited for more than half the academic year to pass before dealing with his professional development day entitlement. Not surprisingly, it is now more difficult for the College to identify appropriate days which could be taken. But it has done so. The teacher has not, as his is obligation, identified which days he wishes to take as professional development days or made a compelling argument as to why the days identified by the College are inappropriate. I have no reason ,--". to think that if Professor Friend engages in professional development on the College's , ' \.....; '_/ '-./ proposed days that will lead to a workload which violates Article 11 of the collective agreement. In these circumstances, I find that it is unnecessary for the College to modify Professor Friend's Standard Workload Form and I find an award of monetary compensation inappropriate. The College has fulfilled its obligations under the Collective Agreement. /Brian McLean June 17,2008 Toronto