HomeMy WebLinkAboutDole 21-01-041
IN THE MATTER OF AN ARBITRATION
BETWEEN:
ALGONQUIN COLLEGE (the College)
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
RE: 2018-0415-0198 – HOLLY DOLE (grievor)
Appearing for the Union: Jean-Michel Corbeil, Goldblatt Partners
Appearing for the Employer: Jock Climie, Emond Harnden
Sole Arbitrator: Norm Jesin
Hearings Held: September 18, 2019, December 15, 2020
and December 16, 2020
Decision: January 4, 2021
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AWARD:
The grievance in this case alleges that the College violated the collective agreement by
failing to recognize the grievor as a full time professor in accordance with the terms of the
collective agreement. The grievor was at all material times designated as a partial load teacher.
That means that although she taught on less than a full time basis, she was not part-time and she
was still included in the full time bargaining unit. It is the contention of the Union that by virtue
of having been assigned additional work as described below, the grievor was actually employed
on a “full time” basis for at least 13 consecutive months. As a result, the Union asserts that
according to the collective agreement, the grievor should have rolled over into full time status as
a full time employee, and she should have been paid as such. The facts giving rise to the
grievance, most of which were agreed to, along with the relevant provisions of the collective
agreement, are summarized below:
Article 1.01 of the Collective Agreement is the recognition clause. The bargaining unit
description contained in that clause includes all academic employees excluding managerial
employees, support staff and those “employed on a part-time or sessional basis”. Note A of
Article 1.01 defines a part time employee as a “person who teaches 6 hours per week or less”.
Partial Load employees are distinct from part-time employees and are included in the bargaining
unit. Partial Load is defined in Article 26.01 B as designating a “teacher who teaches more than 6
and up to and including 12 hours per week on a regular basis”. Such a teacher is included in the
full time bargaining unit, but teaches on a partial load basis.
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A Sessional employee is defined in Appendix V, Article 2 of the collective agreement “as
a full-time” employee appointed on a sessional basis for up to 12 full months of continuous o r
non-continuous accumulated employment in a 24 month period”. A teacher employed on a
sessional basis is excluded from the bargaining unit even when assigned a full time teaching load
so long as they are not assigned on a sessional basis for more that 12 continuous months or for
more than 12 non-continuous months in a 24 month period. If a sessional appointment goes
beyond 12 months in a 24 month period the appointment is said to roll-over and convert to a
full-time employee covered by the collective agreement.
The term “full time” is not defined in the collective agreement. It is not disputed that
teachers who are assigned more than 12 teaching hours per week are designated as full time.
Teachers must do more work than teaching. Such additional work may include course
preparation, student assistance and evaluation, or program evaluation. In addition to the extra
work necessary to deliver the courses they are teaching, they may be assigned additional
complementary work such as program coordination for the coordination of program delivery by
all teachers in the program, curriculum development, or other project work. For full time
employees who are not sessional, all their duties, including teaching contact hours as well as time
for other ancillary duties are recorded on forms known as a Standard Workload Form or SWF.
The process and formulae for attributing these hours are set out in Article 11 of the Collective
Agreement. A teacher may be assigned up to 44 hours in a week (including up to 18 teaching
contact hours and additional non-teaching hours). Any work above 44 hours is paid as overtime
though a teacher may not be assigned more than 47 hours in a week. Neither partial-load nor
sessional teachers are provided with a SWF. The remuneration of a partial load teacher is
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dependent on the number of teaching hours they are assigned. Article 11.01 B 2 A defines a
teaching contact hour as follows: "teaching contact hour" is a College scheduled teaching hour
assigned to the teacher by the College. ....
Program Coordinator duties are generally assigned to full time employees. Coordinators
are referenced in the Collective Agreement in Article 14.04 A 3 as follows: “Coordinator
Allowance - Coordinators are teachers who in addition to their teaching responsibilities are
required to provide academic leadership in the coordination of courses and/or programs. .....”
According to evidence presented by the College it is preferable to assign duties such as
program coordination or curriculum development to full-time employees in the bargaining unit.
That is because the College can usually find employees with less than 44 hours on their SWF’s to
perform such work. The College does not have to pay any additional amounts in assigning such
duties to full-time teachers because as long as the total hours assigned to the teacher is less than
44 hour hours per week, no additional payment is required for the assignment of these duties.
However, if a partial-load teacher is asked to perform work such as program coordination or
curriculum development, the College will have to offer and additional payment to the partial load
teacher for the performance of that work. Therefore, although occasions do arise when the
College may be required to assign such duties to a partial load teacher, the College asserts that
it seeks to avoid such assignments.
From January 2017, for a period of 13 continuous months, the grievor was designated as
a partial load employee. That means she taught more than 6 and up to 12 hours per week during
this period. This in itself is not remarkable as there is nothing in the collective agreement which
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limits the duration for which a teacher may be designated as partial load. However, for 12 of
those months, the grievor was assigned as a program coordinator. She was paid an additional
amount to her partial load remuneration for her assignment as program coordinator. For the 13th
month she was no longer performing the program coordinator work. However, she was assigned
additional work for curriculum development. Again, she was paid an additional amount for that
work.
It is the contention of the Union that the assignments of additional work as program
coordinator and for curriculum development resulted in the grievor working on a full-time basis
for that 13 month period. As such, she should have been designated as a sessional teacher.
However, after working full time for more than 12 continuous months grievor would no longer
be considered as sessional according to the definition of sessional contained in appendix V. That
would mean that the grievor should have “rolled over” into the full-time bargaining unit.
In support of its position the Union relies on the decision of arbitrator Parmar in St.
Lawrence College, [2018] CarswellOnt 2993 (Parmar). In that case the grievor was assigned a
teaching load consisting of 12 teaching contact hours per week in each of the winter of 2014, the
fall of 2014, the winter of 2015 and the fall of 2015. As a result of having been assigned only 12
teaching hours per week, she was designated as a partial load teacher and paid accordingly for
that work. At the same time, she was contracted to perform additional work for which she was
paid separately. That additional work consisted of course development in the winter of 2014 and
program coordinator in each of the fall of 2014, the winter of 2015 and the fall of 2015. In each
semester work under the additional contracts amounted to 45 to 75 hours per term.
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It was the Union’s contention in that case (as it is here) that the grievor should be treated
as having worked full time as a result of the additional work contracted for. That being the case,
the grievor would then have worked on a full time basis for more than 12 months in a 24 month
period and should therefore be treated has having “rolled over” into full time status. The
arbitrator agreed. In particular the arbitrator accepted that program coordination was treated as
work that full time teachers do. She also noted that the evidence disclosed that there were
teachers who would have a workload which was the same as that of the grievor – that is a
workload that would include no more than 12 teaching contact hours along with an additional
program coordinator assignment. The arbitrator concluded that if a workload could be assigned
to and performed by teachers designated as full time, then a partial load teacher with the same
workload should also be treated as a full time teacher.
The College in this case concedes that if the St. Lawrence College is followed then for the
12 months that the grievor was under contract as program coordinator, she should be treated as
“full-time”. However, the College asserts that the decision in St. Lawrence College was wrongly
decided. Counsel for the College has submitted that St. Lawrence College has not been followed
in three decisions which I will discuss below, and should not be followed in this case. Counsel also
asserts that even if I were to accept and adopt the decision of arbitrator Parmar, the facts in the
case at hand are distinguishable and the decision would not be applicable here. In particular the
additional work that the grievor performed in the 13 th month was for curriculum development
and not as program coordinator. It was agreed that if the grievor had had her workload recorded
on a SWF, the SWF for that 13th month would have recorded a weekly workload of 33 hours.
According to the College the evidence disclosed that it was not normal practice to have a full time
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teacher performing such duties for such a reduced weekly hourly total. In the College’s view the
thirteenth month is different than the first 12. Thus, even if the Parmar decision is followed, it is
distinguishable from the facts in this case and should not be applied to the facts before me.
The three decisions relied on by the College referred to above are Algonquin College,
[2018] CarswellOnt 12293 (Knopf); College Employer Council, [2019] CarswellOnt 14218 (OLRB
per M. Wilson) and Re Seneca College, [2019] CarswellOnt 19609 (Knopf).
In the Algonquin College case the grievor was employed as a partial load teacher. She was
also assigned additional work as a program assistant. The Union claimed in that case that the
combination of hours performed over a two year period as partial load teacher and as program
assistant, should result in a “roll over” of the grievor’s status to full time in accordance with
Parmar decision in St. Lawrence College. The parties agreed that if the time spent as program
assistant could be counted in determining the grievor’s status then the Union’s posi tion would
be well-founded. The issue therefore was whether the time spent as program assistant should
be counted.
Arbitrator Knopf dismissed the grievance by distinguishing the facts from those in St.
Lawrence College. The arbitrator concluded that unlike the program coordinator work at issue in
St. Lawrence College, the Program Assistant duties were never assigned to full time teachers and
could not be considered work that could be described as “teaching work” under the terms of the
collective agreement. (see paragraphs 64 and 65). The arbitrator did not agree that the grievor
was working on a “full-time” basis while teaching a “partial load”, and therefore dismissed the
grievance.
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The College Employer Council case was an application for certification by the Union at the
Ontario Labour Relations Board (the OLRB) for an academic bargaining unit of part-time
employees. The bargaining unit applied for was mandated in section 2(1) of the Colleges
Collective Bargaining Act, S.O. 2008 which defined the part-time bargaining unit for Colleges as
follows:
2. (1) Subject to subsection (2), the part time academic staff bargaining unit includes all
persons employed by an employer as,
(a) teachers who teach for six hours or less per week;
(b) counsellors or librarians employed on a part time basis; and
(c) teachers, counsellors or librarians who are appointed for one or more sessions and
who are employed for not more than 12 months in any 24-month period.
The OLRB was tasked (as in any application for certification) with determining which employees
fell within the bargaining unit, so that it could determine whether the application was supported
by a sufficient percentage of employees. The question to be decided by the OLRB in this decision
was whether non-teaching hours should be included in determining whether a teacher fell within
the part-time bargaining unit applied for. (See paragraph 15.)
In considering the matter the OLRB noted at paragraph 29 that the description of the part-
time bargaining unit contained in the legislation was “lifted” from the full time collective
agreement. That is the bargaining unit description for which the Union was required to apply
included both part-time teachers as well as sessional teachers in language that mirrored the
definition of those terms as contained in the existing collective agreement. After reviewing the
that collective agreement and its application to partial load, and full-time employees, the OLRB
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determined that hours that are not teaching hours should not be included in its determination.
At paragraph 47 the Vice-Chair Wilson stated:
47 While examining the statutory provisions in their context supports the conclusion th at
only teaching contact hours are to be used to determine status in the bargaining unit, a
review of the practices and arbitral jurisprudence that has evolved over the decades
buttresses this conclusion. As sophisticated parties with a long collective bar gaining
history, it is not surprising that their submissions relied heavily on the practices that have
evolved as well as their existing collective agreements and related arbitration awards to
assist in the interpretation of this section.
The OLRB was also asked to consider the Parmar decision in St. Lawrence College. At
paragraph 49 the OLRB opined that it was not bound to apply other arbitral cases. In any event
the OLRB stated at paragraph 49 that the question to be decided by arbitration decisions such as
St. Lawrence College was different than the question before it. The arbitrators under
consideration were asked to determine whether duties could be assigned to certain classes of
employees or what the consequences of such assignments might be. That is not the issue before
the OLRB. Still the OLRB did find favour with arbitrator Knopf’s analysis in Algonquin College,
particularly in emphasizing the collective agreement provisions that partial load employees were
paid based on the number of teaching contact hours that they were assigned . In the end the
OLRB decided that it would not consider the assignment of non-teaching hours in determining
the status of employees in the
The question decided in Seneca College much more closely resembles the issue in St.
Lawrence College as well as the question to be decided by me. In Seneca College the grievor was
a partial load teacher and at all material times was assigned no more than 12 teaching contact
hours per week. However, she was assigned a contract as Program Coordinator while teaching a
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partial-load for more than 12 months in a 24 month period. That assignment amounted to an
additional 4-6 hours per week. She therefore sought a “roll over” into full time status.
Arbitrator Knopf, who had previously decided the Algonquin College decision cited above,
was now squarely faced with facts identical to those that existed in St. Lawrence College. The
Union was asking her to adopt and follow the decision in St. Lawrence College whereas the
College was asking her to follow the decision of the OLRB in College Employer Council and to
decline to follow the decision in St. Lawrence College.
At the outset of her analysis in paragraph 27, the arbitrator points out that the parties, in
their collective agreement have treated teaching contact hours as distinct from hours spent on
other complementary functions, including program coordination. She noted that “teaching
contact hours” was a “term of art” defined in Article 11.01 B 2 of the collective agreement and
as such was distinct from other complementary functions described elsewhere in the collective
agreement including functions performed as program coordinator. In particular, she noted that
program coordinator hours were described in Article 14.03 A 3 of the collective agreement as
being “in addition to teaching”. She followed her review of these collective agreement provisions
with the following conclusion:
Therefore, it is difficult to conclude that the parties intended Coordinator duties to be
added to teaching contact hours for purposes of allowing a teacher to move from one
status to another.
In paragraph 29 of her decision, she begins her consideration of the OLRB decision in
College Employer Council. She acknowledged that the issue before the OLRB was different than
the issue at arbitration. However, she added that the OLRB decision was reflective of the fact
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that “parties and arbitrators have historically and almost consistently used teaching contact
hours to determine a teacher's status in and outside of this bargaining unit”. This analysis led the
arbitrator to the conclusion that she could not consider the grievor’s hours as program
coordinator in order to change her status from partial-load to sessional. As a result, the grievance
was dismissed.
The arbitrator expressed sympathy with the grievor’s position at paragraph 37 of her
decision, noting that the evidence established that she worked alongside colleagues designated
as “full-time” performing similar duties but making more money with greater benefits and
security than the grievor. She concluded however that the grievor’s appointment was “consistent
with partial-load status and her additional assigned Program Coordinator duties are within the
scope of the College to assign to her”.
Having considered the authorities presented, the collective agreement, and the facts and
evidence put before me, I am in agreement with the analysis and conclusions reached by
arbitrator Knopf in Seneca College. I accept that there is no definition in the collective agreement
for “full-time” status and that there are employees designated as “full time” who are assigned 12
or less teaching contact hours per week. Those situations tend to arise when a teacher who has
attained “full-time” status has their hours reduced for some usually temporary reason. However,
I agree that the evidence establish that under the collective agreement delineation of status as
between partial load and full time is dependant on the number of teaching hours that are
assigned. I agree and adopt the analysis of arbitrator Knopf that under the collective agreement
that presently exists, the complementary non-teaching hours are not to be used to change the
designation of a partial load employee to sessional and/or full time.
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The College has asked me to rule on its alternative argument regardless of my
determination of the main issue. That is, the College has asked that I express my view as to
whether the facts of this case could be distinguished from those in St. Lawrence College. It is the
College’s assertion that if I had adopted the reasoning in St. Lawrence College, the grievance
should still be dismissed as the evidence established that curriculum development is not routinely
performed by full time teachers 12 hours or less assigned teaching hours.
I do not accept this distinction. The evidence established that there are occasions in which
full time employees perform such duties even though they are assigned less than 13 teaching
contact hours. As I stated earlier such an assignment will occur in rare circumstances in which
the Employer may have no other alternative. Still, there may arise some situations in which
teachers designated as “full-time” are performing a workload similar to that performed by the
grievor. I see no reason to distinguish this case from St. Lawrence College, had I adopted it. Yet,
for the reasons set out above I am not able to adopt the reasoning in St. Lawrence College and
instead, I adopt the analysis of arbitrator Knopf in Seneca College. For all the foregoing reasons,
the grievance is dismissed.
Dated at Toronto, this 4th day of January, 2021.
______________________
Norm Jesin