Loading...
HomeMy WebLinkAboutUnion 20-07-10 IN THE MATTER OF AN ARBITRATION BETWEEN SENECA COLLEGE (the “College”) and ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 560 (the “Union”) Jurisdictional Issue Arising from Workload Resolution Arbitrator Appointment Workload Resolution Arbitrator: Elizabeth McIntyre Appearances For the College: Wallace Kenny, Hicks Morley Barristers & Solicitors Suzanne Abraham, Chair Faculty of Applied Arts & Health Science Ted Bridge, Director Employee & Labour Relations Haseeb Wali, Coordinator Employee & Labour Relations For the Union: Keith Opatowski, Complainant Frank Yee, President OPSEU 560 Matt Cohen, Office Manager OPSEU The matters in dispute proceed to a hearing on July 8, 2020 1. On June 23rd 2020 I was appointed by the Ministry of Labour to act as a Workload Resolution Arbitrator ("WRA") as provided for in Article 11.02 F3 of the collective agreement between the parties. 2. There is no dispute between the parties that the appointment from the Ministry gave me jurisdiction to determine the complaint of Keith Opatowski a matter which was heard on June 8th, 2020 and which is dealt with in a separate award. The parties are in dispute however, regarding my jurisdiction to determine a number of other outstanding workload disputes. It is the position of the Union that the appointment by the Ministry of Labour applies to these additional matters. The College takes the position that my appointment applies only the Opatowski matter. THE COLLECTIVE AGREEMENT 3. The collective agreement sets up a process for the resolution of workload disputes between the parties. The process includes discussion between the teacher and the teacher’s supervisor, review by the College Workload Managing Group (“WMG”) and, if necessary, resolution by a Workplace Resolution Arbitrator (“WRA). The provisions relevant to the jurisdictional issue in this case are as follows: 11.02 F 1 One or more WRAs shall be jointly selected by the College President or the President’s designee and the Union Local President. The appointment of a WRA shall be from July 1 until June 30 of the following year unless both parties otherwise agree in writing. A WRA shall act on a rotation basis or as otherwise agreed. 11.02 F 3 In the event that the College President or the President’s designee and the Union Local President are unable to agree upon the appointment of a WRA, either the College or the Union Local may request the Minister of Labour to appoint a WRA and the WRA shall, upon appointment by the Minister of Labour, have the same powers as if the appointment had been made by the College and the Union Local as provided herein. THE FACTS 4. On June 10th, 2020, at a meeting of the WMG, the complaint of Mr. Opatowski was referred to an WRA. Discussions also took place between the parties regarding the selection of a WRA for other outstanding workload matters. 5. On June 11th, 2020, an email was sent by Haseeb Wali, Employee and Labour Relations Coordinator for the College, to the Mr. Yee, Union president and Mr. Opatowski, setting out a list of 3 summer and 12 fall WMG matters. Mr. Opatowski’s case was the only one noted to be referred to a WRA. 6. On June 12th, 2020, an email was sent from Mr. Opatowski to Mr. Wali and Mr. Bridge, the Director Employee and Labour Relations for the College, advising that , as no agreement on an arbitrator could be reached on the Opatowski matter, OPSEU would be requesting an appointment from the Ministry of Labour. A request was sent to the Ministry by Union President Yee requesting the appointment of a WRA to “address workload complaints at Seneca College.” The request did not specify a particular complaint or complaints. 7. On June 12th, 2020, an exchange of emails between Seneca and OPSEU establishes that the parties were discussing, but not agreeing, on which WRA should hear the outstanding workload grievances other than the one related to Mr. Opatowski. 8. On June 23rd, 2020. a letter of was sent from the Ministry of Labour to the parties setting out my appointment as a Workplace Resolution Arbitrator as provided for in Article 11.02 F3 of their collective agreement. The letter does not refer to a particular matter. However, it states that “(i)t is the responsibility of the parties to refer a specific matter to the WRA” 9. On June 25th, 2020, an email was sent by Mr. Bridge to the Mr. Opatowski declining the Union’s request that I hear four workload matters in addition to the Opatowski matter. DECISION 10. The issue to be addressed is whether my appointment by the Ministry of Labour gives me jurisdiction to determine outstanding workload disputes other than the Mr. Opatowski case on which the parties are agreed that I have jurisdiction. 11. Under Article 11.02 F3 of the collective agreement a request to the Ministry of Labour for appointment of a WRA is conditional on the failure of the parties to mutually agree on an arbitrator. Other than the Opatowski matter there is insufficient evidence to establish that, at the time the request for appointment was sent to the Ministry of Labour, the parties had failed to agree to an arbitrator for the other workload complaints. On June 11th, 2020, the only matter referred to a WRA was the Opatowski complaint. On June 12th, 2020 there was an ongoing communication about WRAs and their availability to hear the other matters. There is no evidence that the College was aware that a request was being made for the appointment of a WRA on any of these other matters. Accordingly, the condition required for the appointment of a WRA by the Ministry was not met with respect to any workload case other than the Opatowski case. 12. The Union asserted that because the request to the Ministry for an appointment referred to complaints in the plural that the appointment must be for more than one complaint. However, neither the request by the Union nor the appointment made by the Ministry on June 23rd, 2020, specify any particular matter. Rather, the appointment letter says that it is the responsibility of the parties to refer a specific matter to the WRA. The only matter which the parties agreed to be referred to me is the Opatowski matter. The College specifically disagreed with the Union’s proposal that I hear four additional workload matters. Had the parties mutually agreed to have the Ministry appointment apply to the other cases I would have had jurisdiction to hear them. However, without that agreement, my appointment only applies to the one case in which the pre-condition set out in Article 11.02 F3 has been met. 13. Article 11.02 F 1 provides that “the appointment of a WRA shall be from July 1 until June 30th of the following year”. Based on that provision and the fact that the hearing in this case took place after July 1st 2020, the Union urged me to agree that my appointment applied to any workplace hearings which took place in the year commencing July 1st, 2020. It is the date of the appointment and not the hearing date that determines the appointment year under Article 11.02 F 1. Given that my appointment was made prior to July 1st, 2020, this provision does not extend my appointment beyond the Opatowski case. 14. For all of the above reasons I conclude that my jurisdiction under the appointment from the Ministry of Labour is limited to the Opatowski matter. Dated in Prince Edward County, Ontario, this 10th day of July, 2020 Elizabeth McIntyre, Workplace Resolution Arbitrator