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HomeMy WebLinkAboutFoster 19-11-12IN THE MATTER OF AN ARBITRATION Pursuant to the Colleges Collective Bargaining Act Between: THE COLLEGE EMPLOYER COUNCIL FOR THE COLLEGES OF APPLIED ARTS AND TECHNOLOGY (the College) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 242 (FOR ACADEMIC EMPLOYEES) (the Union) Re: Niagara College: Partial-Load Seniority Grievance of Leslie Proctor Foster OPSEU File # 2018-0242-0020 A W A R D Paula Knopf – Arbitrator APPEARANCES: FOR THE COLLEGE: Wallace Kenny, Counsel Nicole Perreault, Director of Human Resources FOR THE UNION: Mary-Elizabeth Dill, Counsel Ravi Ramkissoonsingh, President, Local 242 Terry Poirier, Chief Steward Leslie Proctor Foster, Grievor The hearing of this matter was held in St. Catharines, Ontario on September 13, 2019, followed by written submissions received up until October 28, 2019. 1 This is a grievance alleging that the College violated the Collective Agreement by failing to offer the Grievor a partial-load teaching opportunity for a course she had previously taught. Instead, the course was assigned to a person with no previous service in this bargaining unit. In response, the College asserts that because the Grievor was a part- time employee, she had no status to grieve this matter resulting in this arbitrator having no jurisdiction to resolve this grievance. In the alternative, the College submitted that the Grievor did not have sufficient service to claim hiring priority for the assignment. The College also asserted that the Grievor lacked the proper qualifications to teach the course. The Union challenges all of the College’s assertions. The parties’ positions raised jurisdictional and interpretive issues, as well as factual questions related to the Grievor’s qualifications. At the parties’ request, this Award deals only with the threshold issues of arbitral jurisdiction and contractual interpretation. Since those two preliminary issues are intertwined, they shall be dealt with together. To appreciate the parties’ arguments and the implications of their positions, it is important to set the context with the parties’ Agreed Statement of Facts: 1. The Employer and the Union are parties to a Collective Agreement, effective October 1, 2017 to September 30, 2021. 2. The Grievor, Leslie Proctor Foster [the Grievor], began teaching at Niagara College (the “College”) in the fall of 2015. She has taught a variety of courses as a part-time, sessional and partial-load employee over the years, including several mathematics and science courses. 3. The Grievor has taught the following courses as a partial-load employee: 2 WINTER 2016 COURSE DEPARTMENT/ SCHOOL TEACHING CONTACT HOURS MATH 1107: Business Mathematics School of Academic and Liberal Studies 3 HOSP 1224: Management Accounting School of Hospitality, Tourism, and Sport 7 Total: 10 hours/wk WINTER 2017 COURSE DEPARTMENT/ SCHOOL TEACHING CONTACT HOURS MATH 1231: Math II School of Technology School of Academic and Liberal Studies 4 MATH 1134: Math I School of Technology School of Academic and Liberal Studies 3 MATH 1160: Pre-Health Mathematics I School of Academic and Liberal Studies 3 MATH 1109: Mathematics for Practical Nursing School of Academic and Liberal Studies 2 Total: 12 hours/wk FALL 2017 COURSE DEPARTMENT/ SCHOOL TEACHING CONTACT HOURS MATH 1100: Mathematics for Horticulture School of Academic and Liberal Studies 3 MATH 1160: Pre-Health Mathematics I School of Academic and Liberal Studies 3 BIOL 1180: Anatomy and Physiology II School of Academic and Liberal Studies 3 ANAT 1198: Anatomy and Physiology I School of Academic and Liberal Studies 3 Total: 12 hours/wk 3 4. The Grievor has also taught the following courses on either a sessional or part- time basis: MATH 1021: Applied Math for Construction Trades; MATH 1035: Culinary Math; MATH 1113: Health Sciences Mathematics; BIOL 1180: Anatomy and Physiology II; BIOL 1119: Biology of Human Disorders; SCIE 8209: Science and the Environment; and SCIE 1105: Science and Nature. 5. Since 2015, the Grievor has accumulated 5.5 months of service as defined in Article 26.10 C of the Collective Agreement. The Grievor has not yet accumulated eight months of service as defined in Article 26.10 C. 6. Pursuant to Article 26.10 D of the Collective Agreement, the Grievor was deemed to have registered her interest in being a partial-load employee for the 2018/2019 academic year. As such, in the 2018/2019 academic year, the Grievor was a registered partial-load employee for the purpose of Article 26.10 E. 7. In the fall of 2018, the Grievor was employed by the College on a part-time basis, teaching Math 1160: Pre-Health Mathematics I and ANAT 1198: Anatomy and Physiology I. 8. In or around November 2018, the Grievor received her teaching assignment for the winter 2019 term. She was assigned only one course, ANAT 1198: Anatomy and Physiology I, which amounted to a total of three teaching contact hours per week for the winter 2019 term. 9. Soon after the Grievor received her teaching assignment for the winter 2019 term, she learned that the College had assigned Kimberley Boyd nine hours (three sections) of Business Mathematics (MATH 1107) and three hours (one section) of MATH 1310. At the time, Ms. Boyd had never before held a partial - load assignment and, therefore, had no partial-load seniority as defined in Article 26.10 C. The Grievor had previously taught MATH 1107 as a partial-load 4 employee, however, the College did not offer this partial-load assignment to the Grievor. 10. Ms. Boyd, having never been a partial-load employee, had not registered interest in being considered for a partial-load position in the 2018/2019 academic year. The relevant provisions of the Collective Agreement are: 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, . . . .except for those listed below: . . . . . . (v) teachers, . . . .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. Article 6 MANAGEMENT FUNCTIONS 6.01 It is the exclusive function of the Colleges to: (ii) . . . . assign, appoint . . . . (iii) manage the College and, without restricting the generality of the foregoing, the right to plan, direct and control operations, facilities, programs, courses, systems and procedures, direct its personnel, determine complement, organization, methods and the number, location and classification of personnel required from time to time, . . . . . . and all other rights and responsibilities not specifically modified elsewhere in this Agreement. 6.02 The Colleges agree that these functions will be exercised in a manner consistent with the provisions of this Agreement. Article 26 PARTIAL-LOAD EMPLOYEES 26.01 A This Article contains provisions exclusively related to partial-load employees. However, this Article is not inclusive of all rights of partial-load employees under the Collective Agreement. 5 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. . . . . . . . 26.10 Job Security 26.10 A It is agreed that Article 27, Job Security, has no application to partial - load teachers except as referred to in 27.04 A, 27.06 A (iv), (v), (vi), 27.08 B, 27.11 B and 27.12. Such partial-load teachers may be released upon 30 days' written notice and shall resign by giving 30 days' written notice. 26.10 B For the purpose of determining the service of a partial-load teacher under 27.06 A (iv), (v), (vi), and 27.08 B and for the purpose of determining progression through the grid ten months of on-the-job experience will entitle the employee to one year of service and to progress one step on the grid, except as noted in 26.10 C. 26.10 C On-the-job experience will be calculated as follows: a partial-load teacher will be entitled to credit for service from September 1, 1971 (but not earlier) on the basis of ½ month's credit for each full month of service up to January 1, 1977 and thereafter on the basis of ½ month's credit for each calendar month in which the employee teaches 30 hours or more and from October 1, 2017 (but not earlier) on the basis of one month credit for each calendar month in which the employee teaches 30 hours or more. 26.10 D In addition to maintaining a record of a partial-load employee’s job experience, the college will keep a record of the courses that the employee has taught and the departments/schools where the partial-load employee has taught such courses. By October 30th in each calendar year, a currently or previously employed partial-load employee must register their interest in being employed as a partial-load employee in the following calendar year. This individual will be considered a registered partial-load employee for the purpose of 26.10 E. All partial-load employees employed for all or part of the period from September 1 to December 31, 2017 will be deemed to have registered for the 2018 -2019 academic year. 26.10 E Subject to the application of Articles 2.02 and 27.06 A, commencing in the 2018- 2019 academic year, where the school or department within a college determines that there is a need to hire a partial-load employee to teach a course that has previously been taught by that registered partial-load employee in the department/school, it will give priority in hiring to such partial-load employee if: (i) They are currently employed, or if they have previously been employed as a partial-load employee for at least eight (8) months of service as defined in 26.10 C within the last four (4) academic years, and 6 (ii) The assignment of such course will not cause the employee to exceed the maximum teaching contact hours for partial-load employees. The offer of partial-load employment is conditional on the college subsequently determining there is sufficient enrolment to warrant the assignment being offered. Where two (2) or more partial-load employees would be entitled to be offered the course assignment, the employee with the most service will be offered the first opportunity. 27.11B Where a vacancy for a full-time position in the bargaining unit occurs consideration shall first be given to full-time and current partial-load employees or to persons who have been partial-load employees within four (4) months prior to the posting. These applicants shall be considered internal applicants. Referral to Arbitration 32.03A In the event that any difference arising from the interpretation, application, administration or alleged contravention of the Agreement has not been satisfactorily settled under the . . . Grievance Procedure, the matter shall then be referred to arbitration . . . 32.03B . . . . Any matter so referred to arbitration, including the question as to whether a matter is arbitrable, shall be heard by a sole arbitrator . . . The relevant provision in Schedule 1 of the Colleges Collective Bargaining Act is: 1 The full time academic staff bargaining unit includes all persons employed . . . . as teachers, . . . but does not include, . . . . (d) teachers . . . in the part time academic staff bargaining unit; [emphasis added] The Submissions of the Parties The Submissions of the College1 The College asserted that the arbitrator has no jurisdiction to hear or resolve the merits of the Grievor’s case because, as a part-time employee, she was not a member of this bargaining unit or an “employee” covered by this Collective Agreement at the time she 1 Since the preliminary objection to jurisdiction was raised by the College, its submissions are set forth first, although the Union had the onus of proof with regard to the merits of the case. 7 grieved. It was submitted that grievances under Article 32.10 can only be filed by partial-load employees. It was stressed that part-time employees have “no rights” under the Collective Agreement, including Article 26, and therefore have no status to grieve. Accordingly, the College argued that the Grievor had no status or right to claim priority for partial-load course assignments. In the alternative, it was suggested that since the Grievor was not a partial-load employee when the teaching assignment was offered, she would only be able to rely on her service as a previously employed partial-load employee to claim any priority. However, since she lacked eight months of service, the College asserts that she did not meet the criteria required to claim any priority. The College argued that the Grievor’s deemed registration under Article 26.10 D cannot and should not impact on the meaning or application of Article 26.10 E. The College argued that the Article should be read “as a whole”, with the presumption that the words “currently employed” in Article 26.10 E (i) mean employed as a partial- load employee. It was submitted that allowing part-time employees any rights, including the right to grieve under Article 26, would ignore the words that begin Article 26.01 A, i.e., “This Article contains provisions exclusively related to partial-load employees,” [emphasis added]. The College also argued that Article 26.10 E should be read conjunctively so that “employed as a partial-load employee” would modify current or previous employment referenced in the phrase. It was said that any ambiguity ought to be resolved by giving effect to Article 26.01 A and the exclusions of sessional and part- time employees from any rights under this Collective Agreement unless specifically stated. It was argued that when Article 26.10 E is read as a whole, the phrase “they are currently employed, or . . . previously employed as a partial-load employee” must be read to refer only to partial-load employment. This was said to be supported by the Article’s purpose, which is to determine competing priority status only between partial- load employees. 8 The College asserted that if this grievance succeeds it could result in an “absurd” situation where a currently employed part-time employee with no bargaining unit status might be able to claim priority over a currently employed partial-load employee. The College argued that this would contravene a decision of mine in College Employer Council for the Colleges of Applied Arts and Technology v Ontario Public Service Employees’ Union (for Academic Employees), 2019 CanLII 64531 (ON LA). It was also stressed that where the parties intended to give non-bargaining unit employees access to bargaining unit positions, they have done so explicitly, such as in Appendix 5 for Sessional employees. It was stressed that the only ways a part-time employee has contractual access to a bargaining unit appointment is if s/he is a registered partial-load employee with eight months of prior partial-load service or if s/he is treated as an internal applicant for a regular full-time position under Article 27.11. The Submissions of the Union Turning first to the jurisdictional argument, the Union submitted that the Employer should be deemed to have waived any objection to arbitrability because it proceeded through each stage of the grievance procedure and argued the merits of the case on the basis of an agreed statement of facts before articulating the jurisdictional objection. The Union argued that “fairness and equity” should compel the denial of the Employer’s jurisdictional objection. In addressing the jurisdictional objection directly, the Union submitted that the Grievor has the right, as a “registered partial-load employee”, to file this grievance and have it arbitrated pursuant to Articles 32 and 26.10 E. The Union stressed that the purpose of Article 26.10 E is to allow current and previously employed partial-load employees to use their accumulated service to claim priority over these “sought after partial-load assignments”. The Union argued that the fact that the Grievor was not a bargaining unit employee at the time her claim arose is a natural outcome of the express language in Article 26.10 D that defines a “registered partial-load employee” as any currently or 9 “previously employed” partial-load employee who registers their interest in being employed as a partial-load employee in the following calendar year. The Union also stressed that the Employer acknowledged that non-bargaining unit “registered partial-load employees” with eight or more months of service as defined in Article 26.10 C are entitled to hiring priority (subject to the further conditions outlined in the final paragraph of Article 26.10 E). Therefore, it was suggested that the lack of bargaining unit status alone cannot oust an arbitrator’s jurisdiction to determine the merits of such claims. It was suggested that if the Employer’s position were sustained, an arbitrator would be without jurisdiction to enforce the vested contractual rights of some registered partial-load employees. The Union stressed that parties to a collective agreement can confer rights on non- bargaining unit members that are enforceable at arbitration. The Union pointed out that claims of unjust dismissal and the enforcement of seniority rights are typical examples of when previous employment is no bar to access to arbitration to enforce contractual and vested rights. The Union argued that the Grievor’s right to claim priority for a partial-load position arises out of Article 26.10 D preserving her vested service rights as a partial- load employee. Reliance for this was placed on Atomic Energy of Canada Ltd., Engineering Co. v PSAC, Local 358, 1983 CarswellOnt 2461 (Saltman); Blouin Drywall Contractors Ltd. v C.J.A. Local 2486, 1975 CarswellOnt 827; U.A.W., Local 1535 v Northern Electric Co., 1972 CarswellOnt 1530; Steinberg Inc. v UFCW, Local 633, 1991 CarswellOnt 6514; Affinity Credit Union v UFCW, Local 1400 (Wasylenko), 2013 CarswellSask 337, upheld on judicial review: 2014 SKQB 41 and 2015 SKCA 22. In the alternative, the Union submitted that if anything in the Collective Agreement bars the Grievor’s access to the grievance and arbitration procedure, such a bar should be considered unenforceable because it would be contrary to s. 14(1) of the Colleges Collective Bargaining Act (the “CCBA”) that provides that all collective agreements must provide for the final and binding settlement by arbitration of all differences between the parties arising from the interpretation, application, administration or alleged 10 contravention of the collective agreement, including any question as to whether a matter is arbitrable. In support of this, the Union relied on Ontario Hydro v Ontario Hydro Employees’ Union, Local 1000, 1983 CarswellOnt 1262. Turing to the interpretative issue, the Union argued that the Grievor was improperly denied her partial-load course priority when someone with no partial-load seniority was hired instead. The Union relied upon the Agreed Facts stipulating that at the time that the grievance arose, the Grievor had 5.5 months of partial-load service, she was employed by the College on a part-time basis and she was a registered partial-load employee for the purposes of Article 26.10 E. On the basis of these facts, the Union submitted that the Grievor should be considered as a person who was “currently employed” and who met the criteria for claiming priority over someone with no partial- load seniority. The Union submitted that Article 26.10 E should be read “as a whole”, resulting in an acceptance that when Article 26.10 E refers to “they” or to “partial-load employees” or to “such partial-load employees”, it means “registered partial-load employees”. The Union asserted that the rights conferred by Article 26.10 E pertain to all “registered partial-load employees”, which would include currently and previously employed partial-load employees who have registered their interest in partial-load employment. Acknowledging that the Grievor did not have eight months’ service as a partial-load employee, the Union stressed that the Grievor should still be considered as qualifying for the priority because she met all of the other qualifying criteria and she was “currently employed” (albeit as a part-time employee) at the time the position was being offered. Since no other applicant had partial-load seniority, the Union submitted that the Grievor ought to have been appointed to teach the course. It was submitted that the Employer’s interpretation of Article 26.10 E is not supported by the plain language of the Collective Agreement and that only clear language could be applied to restrict the seniority rights of partial-load employees. The Union suggested 11 that the College’s interpretation of Article 26.10 E (i) requires “reading in” of the words “employed as a partial-load employee” into the phrase “currently employed”. It was asserted that such a ‘reading in’ is not justified because elsewhere in Article 26, where the parties intended to refer to partial-load employees, they do so explicitly. Further, where the parties intend to limit eligibility, they have done so explicitly, such as in Article 27.11 B. The absence of the phrase “currently employed as a partial-load employee” in Article 26.01 E (i) was said to signify that current employment at the College in another capacity is sufficient to satisfy one of the criteria in Article 26.10. The Union also argued that if “currently employed” is read as meaning “currently employed as a partial-load employee”, this would disentitle past partial-load employees who are no longer employed from accessing the rights they acquired under Article 26.10 D. The Union stressed that Article 26.10 D is a job security clause for both current and past partial-load employees. It was submitted that the clause should be applied to protect the rights the clause creates. The Union warned that if the College’s interpretation is accepted, the priority rights would only be available to people who already hold partial- load positions, effectively eliminating the rights of previous partial-load teachers. In response to the Employer’s assertions that the Union’s position is “absurd”, the Union stressed that there is nothing unsound about claiming a greater entitlement to a partial- load assignment over another “registered partial-load employee” who has less partial- load seniority. The Union suggested that even the Employer’s interpretation could result in an individual who is currently employed as a partial-load employee having priority for a new partial-load assignment over another registered partial-load employee who has more partial-load seniority but who is not currently employed as a partial -load employee. The Union relied on the caselaw that reminds arbitrators that collective agreements are to be read with the presumption in favour of seniority rights, absent clear and express restrictions on those rights. See College Employer Council for the Colleges of Applied Arts and Technology v Ontario Public Service Employees’ Union (for Academic Employees), supra; Brown and Beatty, Canadian Labour Arbitration, para. 4:2110; Ontario Power Generation and Society of Energy Professionals (OPGN - 12 2010-5706/1538), 2013 CarswellOnt 17912 (Surdykowski); U.E., Local 512 v Tung-Sol of Canada Ltd., 1964 CarswellOnt 520 (Raville); Toronto Star Newspaper Ltd. v Southern Ontario Newspaper Guild, Local 87, 1983 CarswellOnt 2386 (Picher); Northern Telecom Canada Ltd. v United Automobile Workers, Local 1525, 1983 CarswellNS 602 (Veniot); Canron Western Constructors Ltd. v IABSRI, Shopmen’s Local 712 (Ye), 2013 CarswellB.C. 2451 (Keras). The College’s Reply Submissions The College argued that while employment status is relevant for determining priority claims for partial-load teaching assignments, my earlier decision pointed out the difference between eligibility and priority, see College Employer Council for the Colleges of Applied Arts and Technology v Ontario Public Service Employees’ Union for Academic Employees, supra. Therefore, it was said that the Grievor’s part-time status gives her no access to arbitration in this situation, especially given her lack of eight months of partial-load service. The College also argued that no part-time employee should be able to claim priority over a partial-load employee. In addressing the Union’s waiver argument, the College stressed that objections to jurisdiction cannot be waived. In support of this, the College pointed to the decision in Fanshawe College and OPSEU, December 10, 2007 (Knopf); Centennial College (Middleton), March 7, 2007 (M. Picher); Canadore College (Rocheleau), March 16, 2012 (Bendel). The Decision The first item to address is the Employer’s jurisdictional objection to the arbitrability of this grievance. The Union has asked that the objection be dismissed on the basis of equity and fairness because the College proceeded all the way through the grievance procedure, the preparation of the Agreed Facts and well into its submissions at this hearing before raising the jurisdictional objection. While the objection is dismissed, it is 13 not dismissed on the basis of “fairness”. Both the governing statute and the Collective Agreement invest arbitrators with the power and the responsibility to resolve disputes that arise out of the interpretation, application, administration or alleged violations of the contract. Absent that authority or consent, an arbitrator has no power. However, if a grievance falls within that range of authority, our duty is to hear and resolve the issues. Therefore, an arbitrator cannot ignore a valid objection to jurisdiction, even if it is raised late in the process. Jurisdiction goes to the core of an arbitrator’s ability and duty to resolve a dispute. An arbitrator’s fundamental jurisdiction cannot be affected by one party’s conduct. An arbitrator cannot assume or accept jurisdiction over a matter simply because one party fails to make a timely objection to the arbitrator’s fundamental authority to resolve the issue(s). Therefore, even though the College’s processing of this matter through to arbitration may have created the assumption that it had waived any jurisdictional objections, that conduct is not the basis for accepting that this is an arbitrable dispute under this Collective Agreement. The only real question is whether this grievance raises issues that fall within the authority of an arbitrator under this Collective Agreement. Nevertheless, it was impossible to ignore the fact that the Employer did not raise the jurisdictional objection until the midst of this hearing. This took the Union by surprise and raised a perception of unfairness. That perception was addressed by adjourning the proceedings, requiring the Employer to articulate its objections in writing and allowing the Union sufficient time to respond. Having received the parties’ written submissions on the jurisdictional objection, it must be concluded that the objection should be dismissed. This is in spite of the fact that the Employer is correct to point out that Article 26’s provisions are “exclusively related to partial-load employees” and that the Grievor was a part-time employee who, by statute, is excluded from this bargaining unit. If those were the only factors to consider, the Employer’s jurisdictional objection would have been upheld. 14 However, Article 26.10 is a complex job security provision that establishes unique rights for specified situations. Most importantly, Article 26.10 D allows “currently or previously employed partial-load employees” to register an interest in being re-employed on a partial-load basis for the following year. If previously employed partial-load employees can have access to future partial-load appointments, their previous partial-load employment and accumulated service confer rights that must be enforceable through arbitration. The logical outcome of the Employer’s jurisdictional objection would be that someone would have to be a current partial-load employee to file a grievance under Article 26.10. Such an interpretation would “read out” the phrase “previously employed partial-load employee”. Every word in the article must be given meaning. Therefore, Article 26.10 must be read and applied in ways that allow previously employed partial - load employees to register and assert claims of priority for future appointments. If they have those rights, they must also have access to arbitration to enforce those rights. This conclusion is supported by the case law cited by the Union. Collective agreements often confer rights that can be enforced after someone no longer holds bargaining unit status. For example, seniority confers recall rights that can be enforced after a layoff. Further, long-term disability and pension entitlements can be arbitrated if the claim arose during a period of employment. These are only a few examples of vested rights that survive the termination of an employment relationship. As Arbitrator Saltman rightly pointed out in Atomic Energy of Canada Ltd. and PSAC, supra, “ . . . there would be little value in providing for the retention of seniority rights unless seniority could be used to gain entry into the bargaining unit.” Article 26.10 is a job security provision that confers retained service rights. There would be “little value” in providing for a priority hiring provision based on accumulated partial-load service for both previously and currently employed partial-load employees if “previously employed” persons could not enforce those rights. Further, even the Employer’s submissions acknowledged that a previously employed partial-load employee with eight months’ partial-load service does have access to the priority claims under Article 26.10 E. All previously employed partial-load employees have the right to register their interest and to assert a claim of priority for a future, partial-load appointment. In doing so, they are asserting vested service rights. 15 They need not be members of this bargaining unit at the time they register if they were “previously employed” partial-load employees because their vested rights survive. Therefore, the Grievor’s status as part-time employee at the time the grievance arose is actually irrelevant. Her claim and status to grieve is based on her being a “registered partial-load employee”. As such, she was asserting her vested bargaining unit rights. Accordingly, her claim is arbitrable under this Collective Agreement. My authority and “fundamental jurisdiction” to resolve the merits of this case arise out of Articles 32, 26.10 D and 26.10 E of the Collective Agreement. This brings us to the merits of the grievance. Both parties made reference to my earlier decision regarding Article 26.10. It dealt, in part, with the specific question of what courses create hiring priority for that clause. I reviewed the arbitral caselaw on contract interpretation in that award, so it need not be repeated here. Since both parties referred to my explanation of the job security provisions, they should be reproduced: Article 26.10 D sets out the factual circumstances that give past and current partial-load employees the right to be considered for future partial-load course offerings. Their current or past partial-load status and the factual issue of having taught a course in a department/school is what makes a person eligible to be considered to be a registered partial-load employee for purposes of Article 26.10 E. Article 26.10 E then creates a way for a College to prioritize among eligible registered partial-load employees. Priority for the job is a different matter from eligibility. Further conditions for hire are set out in Article 26.10 E (i) and (ii) and are not at issue in this case. The priority hiring opportunity among the employees entitled “to be offered the course assignment” is determined by the eligible employee with “the most service”. Service was addressed and defined by the parties in Article 26.10 C and was based on partial-load hours. Article 26.10 is a job security provision and must be read as a whole to protect the job security of partial-load employees. In order to be consistent with the scheme of the contract and give effect to the priority given to the stated purpose of partial -load job security, the term “service” in Article 26.10 E must be read to give effect to Article 26.10 C by giving preference to bargaining unit service. It cannot be applied in such a way that the courses create the hiring priority. Teaching the courses in the 16 past is simply one aspect of the eligibility for future hire. Service determines hiring priority. This conclusion is also consistent with the fact that part-timers and sessionals are not members of this bargaining unit. Part-timers and sessionals are excluded by Schedule 1 of the governing statute . . . . While sessionals have some rights under the full-time Collective Agreement, those rights are limited to the rights specified in Appendix 5. It would take very clear language to allow individuals who are not in this bargaining unit and are not covered by this Collective Agreement to acquire rights within this contract that affect bargaining unit members’ job opportunities and job security. If teaching on a part-time or sessional basis is accepted as creating priority rights under this Collective Agreement, it would mean that working outside this bargaining unit could create vested rights that could affect the job security of partial-load members. That is not a conclusion that is consistent with the purpose of Article 26.10. I have not ignored the Union’s concern about the possibility that someone from “off the street” could possibly be considered on an equal footing to a past or current partial-load employee. However, the Employer’s example ought to be far more concerning to this bargaining unit. That example points out the possibility of two current or previously employed partial-load employees who register their interest in a course. One could have taught the course on a part -time basis more than someone who taught it as a partial-load employee. If the Union’s interpretation prevailed, the greater number of hours of part-time teaching could prevail over the hours spent as a partial-load teacher of the course. As a result, part-time teaching would trump partial-load teaching. Did the parties actually intend to create a situation where teaching outside of this bargaining unit could create vested rights that could affect a partial-load priority hiring opportunity? Since part-time hours cannot even enter the equation under Article 26.10 C, and since Article 26 only pertains to partial-load employees, it cannot be concluded that anything other than courses being taught by a partial-load employee are what matters for purposes of service under Article 26.10 C. It must therefore follow that only partial-load service is relevant for purposes of hiring priority under Article 26.10 E. This is the only interpretation that favours the rights acquired as a partial-load teacher and that provides the security for partial-load employees that Article 26 is designed to protect. The case at hand raises different issues. In this case, the question is whether the Grievor’s previous partial-load service and current status as a part-time employee allow her to claim priority under Article 26.10 E (i) and (ii). 17 As the College pointed out, priority for a partial-load appointment is a different concept from eligibility. Priority is given to the registered applicants who: 1. have previously taught that course in that department/school and is 2. “ . . . currently employed” OR 3. “. . . . [have] been previously employed as a partial-load employee for at least eight (8) months of service as defined in 26.10 C within the last four (4) academic years.” [emphasis added] The Agreed Facts acknowledge that the Grievor was a part-time employee who was also “a registered partial-load employee for the purpose of Article 26.10 E”. They also affirm that the Grievor had previously taught the course in question. However, the Grievor ha d not accumulated eight months of partial-load service, as defined in Article 26.10 C. Therefore, she has priority only if she can be considered to be “currently employed”. Does the Grievor’s part-time employment with the College at the time in question meet the criteria of being “currently employed” for purposes of Article 26.10 E (i)? The College argued that “currently employed” must be read to mean ‘employed as a partial-load employee’. The Union asserts that this would “read in” words that create a limitation on the job security rights that were not negotiated by the parties. If the College’s interpretation is accepted, it would mean that someone would have to accumulate either eight months’ partial-load service or be employed as a partial-load employee at the time of claiming priority for the appointment. That would be a reasonable contractual expectation for the parties to impose on applicants. It would preserve and give preferential job security to current partial-load employees. Alternatively, if the Union’s interpretation is accepted, it would mean that one could also be employed by the College in another capacity to claim priority. That could be another reasonable interpretation because there are many faculty members who are “precariously employed” with different kinds of status. It would also be reasonable to assume that these parties might choose to give someone who is currently employed by the College in something other than partial-load status priority over someone who had 18 no employment connection to the College at all. But that could be a double-edged sword. While it would give preference to a part-time employee over someone who is not a College employee, it could also result in a part-time employee having priority over a partial-load teacher with less partial-load service. Therefore, both the Union and the College have posited reasonable ways of interpreting this provision, but that also raise interesting implications. If there is more than one plausible interpretation to give to challenging language, the caselaw has directed that the presumption is to give preference to an interpretation that protects, “enhances and preserves” seniority rights; see Northern Telecom Canada, supra, at para 16, as well as Tung-Sol of Canada Ltd., Toronto Star Newspapers Ltd., supra. At the same time, it is well accepted that the rules of interpretation also direct arbitrators to give effect to the plain meaning of the language of the Collective Agreement. Article 26 begins with the declaration: “This Article contains provisions exclusively related to partial-load employees”. Article 26.10 is titled, “Job Security”. It is a job security provision for partial-load employees, giving value to accumulated partial-load service. Article 26.10 E creates the criteria for priority for assignments. It clearly states that there will be “priority in hiring to a registered partial-load employee” if they are currently employed or have been previously employed as a partial-load employee for at least eight months of service. One cannot ignore the importance of the eight months’ partial-load service requirement. It begs the question of how would a registered partial- load employee with less than eight months of service become eligible for priority in hiring? The parties have written in eight months of partial-load service as a threshold for a previously employed partial-load teacher to be given priority. Therefore, it must be concluded that the eight months of partial-load service is critical for the previously employed partial-load employee to be able to claim priority under Article 26.10 E. There would have to be very clear language to enable someone to claim that priority if s/he is not a current employee and has less than eight months’ partial-load service. 19 The Union has strenuously argued that a “registered partial-load employee” who is “currently employed” by the College in another capacity can claim priority under this clause. In theory, this may be correct. However, while my conclusion regarding jurisdiction gives someone outside the bargaining unit the right to assert a veste d right on the basis of being a “registered partial-load employee”, that only entitles him/her to be eligible for the course and to assert his/her partial-load service to create priority over other applicants. To be a registered partial-load employee, Article 26.10 D prescribes that one must either be a currently or a previously employed partial-load employee. The words “currently” and “previously” are adjectives that both apply to the words “partial- load employee”. The clause clearly deals with current or previous partial-load employment. Similarly, in Article 26.10 E (i), where the same language is used to set the criteria for establishing priority among registered partial-load employees, the Collective Agreement refers to “currently” and “previously” employed. This must also mean employed as a partial-load employee because only partial-load employment is relevant. To put it another way, the only logical way to read Article 26.10 E (i) is to recognize that it can only refer to current partial-load and past partial-load employees. No one else has priority rights under this clause. This conclusion is consistent with the scheme of the Collective Agreement and the governing statute. A part-time employee cannot be a “current employee” under this Collective Agreement. That would violate the recognition clause and Schedule 1 of the Colleges Collective Bargaining Act. This interpretation is also consistent with a reading of the clause as a whole. This is best illustrated by focusing on the words that are relevant to this case. When “there is a need to hire a partial-load employee to teach a course that has previously been taught by that registered partial-load employee” the College “will give priority in hiring to such partial-load employee” if they are a “current employee” or “if they have previously been employed as a partial-load employee for at least eight (8) months of service as defined in 26.10 C within the last four (4) academic years”. Using the simple rules of grammar, the words “such partial load employee” refer back to the registered partial -load 20 employee who has previously taught the course. Accordingly, the words “if” and “or” mean that the priority is conditional on “such” registered partial-load employees being either “a current employee” or someone with the requisite eight months of service. The words “if” and “or” both have to be given effect. These are alternative routes to claim the priority. If a registered partial-load employee who is not a current partial-load employee and who has less than eight months of partial-load service could claim priority under this clause, the condition of the requisite service would be written out of the clause. This is not “reading in” a qualifier, as the Union suggested. It is simply giving effect to the language and scheme of Article 26.10 that is designed to give job security to partial- load employees based only on current and previous partial-load service. Therefore, while Article 26.10 E can give priority to a part-time teacher who is a registered partial- load employee with the prescribed level of service, it does not give priority to a previously employed partial-load employee unless s/he has that level of service. This analysis leads to the conclusion that the Grievor’s status as a registered partial-load employee gave her the right to grieve. However, because she lacked current partial- load employment at the time of the course offering or eight months of partial-load service, she cannot succeed with her claim for priority in hiring under Article 26.10 E. As a result, the issue of qualifications need not be addressed. Therefore, the grievance must be dismissed. Dated at Toronto this 12th day of November, 2019 ______________________________ Paula Knopf Generated by CamScanner