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HomeMy WebLinkAboutHalpe 21-08-311 IN THE MATTER OF AN ARBITRATION UNDER THE COLLEGES COLLECTIVE BARGAINING ACT, S.O.2008, c. 15 ~ BETWEEN ~ CENTENNIAL COLLEGE OF APPLIED ARTS AND TECHNOLOGY (“EMPLOYER or COLLEGE”) ~ AND ~ THE ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION (LOCAL) (“UNION”) AND IN THE MATTER OF AN INDIVIDUAL GRIEVANCE (HALPÉ) Arbitrator: Deborah Leighton APPEARANCES: Counsel for the Employer Wallace Kenny Counsel for the Union Stephanie Hobbs A hearing into this matter was held on December 8, 2020 and June 23, 2021 2 AWARD [1] The grievance before me alleges that the college breached the collective agreement when it denied Professor Halpé’s request for five consecutive professional development days during a non -teaching week, February 25 to March 1, 2019. The union’s position is that article 11.01 H 2 entitles faculty to five consecutive professional development days and the college’s denial of the grievor’s request was not reasonable and therefore a breach of the collective agreement. The college’s position is that the grievor was entitled to ask for leave pursuant to article 11.01 H. However, the article requires both parties to discuss the request and come to an agreement on the leave. The grievor’s request was considered, she was offered four days in that week, and two alternate five-day periods to consider in April and June and therefor there has been no breach of the collective agreement. [2] The hearing proceeded with an agreed statement of facts, documents, and the viva voce evidence of a college witness. The relevant evidence is not in dispute. AGREED STATEMENT OF FACTS 1. Centennial College (the College) is bound to the Collective Agreement between the College Employer Council for the Colleges of Applied Arts and Technology and Ontario Public Service Employees Union (the Union), effective from October 1, 2018 to September 30, 2021. 2. Aparna Halpé (Halpé) is a member of the bargaining unit and has been employed as a full time Professor, School of Advancement, at the College since 2011. (Halpé’s Curriculum Vitae is attached at Tab A). 3 3. During the 2018-2019 academic year, the College scheduled its winter term “Engagement Week” (reading week) for February 25 – March 1, 2019. 4. By way of email dated Wednesday, January 23, 2019, the College advised faculty from the School of Advancement that there would be a professional development day on Wednesday, February 27, 2019 (see notice attached at Tab B). The notice advised that there would be a morning session on Universal Design for Learning (UDL) and an afternoon session on Scholarly Research. The notice included the following: “Attendance for faculty is required…” 5. UDL is a college wide initiative to improve the quality of its curriculum design by making it more accessible to marginalized groups. It is referenced in the College’s “Book of Commitments” under Commitment 1 “Revolutionizing Teaching and Learning”. Both UDL and Scholarly Research are contained in the College’s “Strategic Mandate Agreement” (SMA) which the College is required to enter into with the Ministry of Advanced Education and Skills Development. 6. The College often uses time in the mid-term breaks, which are non- teaching periods, to provide cross department professional development. 7. The College had not communicated with the Union or individual faculty members before scheduling the February 27 professional development sessions. The first notification was on January 23, 2019. The College did not seek the consent or agreement of faculty members or the Union before scheduling these sessions or canvass their availability. 8. In an email dated January 29, 2019 (Tab C), Halpé advised Chair Shawn Brake that she was submitting in hard copy a professional development request form. She asked to take the five consecutive days during Engagement Week (February 25 to March 1, 2019) as professional development to write an article for a new volume of essays. The level of detail Halpé provided on the hand-written PD 4 request form, which includes a three-line single-spaced area for description of the PD activity proposed, was consistent with the normal level of detail provided. 9. By way of email the same day (Tab D), Chair Brake identified the February 27 conflict with Halpé request and advised that “all faculty” were expected to attend the February 27th PD session and said that she could take 4 non-consecutive days as PD over Engagement Week. 10. In an email dated January 30, 2019 (Tab E), Halpé requested that Brake reconsider her request to take her professional development time during the Engagement Week She attached to this email the letter of invitation, dated September 17, 2018, about writing the article (Tab E). 11. Chair Brake responded by email on January 30, 2019 confirming that Halpé could have 4 of the 5 days requested and refusing her suggestion that she might participate in the mandatory SoA event by telephone and offering other alternative 5 day periods she could consider for additional PD (at end of April and June) (Tab F). 12. Halpé did not respond to this email. 13. On January 31, 2019, Chair Brake sent a further email to Halpé (Tab G), and noted that he had also just received the hard copy of her professional development request form. He reiterated that “all full - time faculty must attend (in person) the SoA event on Feb. 27” and “your PD Request Form needs to be modified to identify Feb. 27 th as a day that you will attend the SoA event.” 14. On February 11, 2019, the Union filed the instant grievance on Halpé’s behalf (Tab H). 15. When her request for five consecutive days was denied, Halpé continued her regular duties during the Engagement Week. From 5 February 25 to March 1, 2019, she attended all meetings and continued with her regular course preparation and grading. 16. On February 27, 2019, Halpé attended the SoA event. 143 faculty attended. Because of a snowstorm, some faculty were not in attendance at the morning session. Due to the worsening storm, the afternoon session was ultimately cancelled and the College sent faculty home. 17. On February 28, 2019, Halpé attended the Department of English faculty meeting and other meetings. 18. The deadline for submission of Halpé ’s article was July 15, 2019. 19. The session on Scholarly Research, which was cancelled due to the snowstorm on February 27, 2019, was rescheduled to August 2019. Halpé attended the session. The material was purported to “take the mystic [sic] out of research and scholarship” and to introduce “Boyer’s model of discovery, integration, application and teaching.” Given Halpé’s research and teaching experience, and her familiarity with Boyer’s model, the session did not provide new information to her. 20. Halpé asked to use her five consecutive professional development days so that she would have an intensive, consecutive period of time in which to complete the initial and research and exploration stage for writing an article to be published in Confluences 3: Essays In the New Canadian Literature (Mawenzi House, 2019/2020). Her intention was to use the time for concentrated focus on a plan of work for the necessary elements of her writing process that included transcription, analysis of source material, intensive research of references and other material on the subject matter and background, and development of an annotated bibliography. During the allocated time, she had also intended to interview the translator, who lives in Toronto, and explore the possibility of her paying a class visit to speak about the poems and the process of translation. 6 21. In this article, Halpé intended to provide an in-depth analysis on the function of myth as it is reworked and re-envisioned in the process of narrating the trauma of genocide. The primary text on which the analysis focused was And Then There Were No Witnesses (2018) which brought the work by the renowned Tamil poet Ahilan into English. The translation by Geetha Sukumaran made this poetry accessible to an anglophone audience for the first time, and she intended to use this text in her course ENGL 237: Genocide Literature. The article would seek to define the key terms, “trauma poetry” in relation to the Sri Lankan genocide, and would analyze the way the use of myth in such poetry is a way to reframe the violence of genocide in terms that are both disruptive and recuperative. Working on th is article was also significant because it would have given her a recent publication in her research field, and she planned to apply for a SSHRC grant (2019/2020) in advance of her upcoming sabbatical, for which she would need to show recent scholarship in her research area. 22. The information in paragraphs 20 and 21 was not shared with the College at this time except insofar as it was covered by Halpé’s January 30, 2019 email. Following receipt of Halpé’s January 30, 2019 email, Chair Break did not seek any additional information about the details Halpé had provided. 23. Halpé subsequently wrote to the publisher declining the invitation to write the article. Because she was not able to get the initial research and exploration work done during the Engagement Week, she believed that she would not be able to get the article done in time for submission. 24. The College has an on-line training module for UDL. Faculty can complete this module at any time. Halpé was not aware of this training module until after she had attended the February 27th UDL training session, so did not propose this alternative following the Chair’s rejection of her proposal to participate by phone. The College did not, at any time, offer to Halpé an option of completing this training on- line in lieu of attending in person on February 27th. 7 25. In the spring of 2019, the College produced a promotional video, which featured Halpé, as a recipient of the “Scholarship of Teaching and Learning (SoTL) Research Fund,” a new scholarship designed to help support academic researchers building a research profile. FURTHER EVIDENCE OF THE COLLEGE [3] Carol Roffey, Dean of the School of Advancement, testified that there were approximately 100 full-time faculty in the school. She decided that faculty of the school should meet on February 27, 2019, for a special program on Universal Design for Learning (UDL) and scholarly research. She scheduled this training day during engagement week, February 25 to March 1, 2019. Historically the college has used engagement week to schedule such meetings of faculty. [4] Dean Roffey said that the training session was an important part of the college’s academic plan. She wanted all full-time faculty to attend, including those with extensive research experience, so that they could also learn from each other in the sessions. [5] In cross-examination she stated that it was typical to require attendance at these kinds of meetings during engagement week, because it is virtually impossible to schedule such an event outside of the non-teaching weeks. [6] In reexamination she testified that she did consider reasons why faculty members could not attend. 8 KEY ARTICLES OF THE COLLECTIVE AGREEMENT Article 11.01 H 1 The College shall allow each teacher at least ten working days of professional development in each academic year. Article 11.01 H 2 Unless otherwise agreed between the teacher and the supervisor, the allowance of ten days shall include at least five consecutive working days for professional development . Article 11.01 H 3 The arrangement for such professional development shall be made following discussion between the supervisor and the teacher subject to agreement between the supervisor and the teacher and such agreement shall not be unreasonably withheld. Article 11.08 In keeping with the professional responsibility of the teacher, nonteaching periods are used for activities initiated by the teacher and by the College as part of the parties’ mutual commitment to professionalism, quality of education and professional development. Such activities will be undertaken by mutual consent agreement and will not be unreasonably withheld. No SWF will be issued but such activities may be documented. Where mutually agreed activities can be appropriately performed outside the College, schedule link shall be at the discretion of the teacher, subject to the requirement to meet appropriate deadlines. 9 SUBMISSION OF THE UNION [7] Counsel for the union submitted that the college’s denial of the grievor’s request for five consecutive professional development (PD) days during the engagement week in 2019 breached article 11.0 1 H and article 11.08 of the collective agreement because the permission for the leave was unreasonably withheld. Article 11.01 H 2 entitles faculty to five consecutive days based on mutual agreement between the parties which cannot be unreasonably withheld. The purpose of the entitlement to five consecutive PD days is that it provides concentrated uninterrupted time to work on scholarship and teaching. Counsel argued that the college can withhold consent if there is a reasonable basis to do so. However, in this case the decision not to consent to the leave was unreasonable, primarily because there was no real consideration of the grievor’s request. [8] Reviewing the evidence, counsel said that the college notified faculty on January 23 that the date had been set for February 27, in the middle of the engagement week. The grievor submitted her request for five consecutive PD days to her chair on January 29. The chair responded noting the conflict with the requirements that all faculty are required to attend the February 27 meeting. The grievor replied to her chair on January 30 requesting a reconsideration of her request for five consecutive days of professional development. In her email, the grievor explained that she needed the time to work on an essay that she had been invited to write in September 2018 by a leading Canadian publisher. She also emphasized to her chair that she already had established herself as an effective researcher and had been recently featured in a college video, as a recipient of a scholarship from the “Scholarship of Teaching and Learning Research Fund”. 10 [9] The chair responded to the grievor acknowledging that faculty are entitled to five consecutive days in the 10 days permitted for the year and these are to be scheduled at a mutually agreed time. He reiterated that the February 27 meeting was an event that all full-time faculty are required to attend. He advised her that she could use the other four days of the week. He then suggested other opportunities for five consecutive PD days that could be taken between the winter and summer semesters, at the end of April and in June, as possibilities for five consecutive PD days. [10] Counsel emphasized that the chair did not ask for further details on why Professor Halpé needed the five consecutive days in February. She argued that had he done so he would have learned how important the request was to the grievor’s career. Counsel acknowledged that the grievor did not provide any further reasons for why she needed these particular five days. In counsel’s submission the issue should not be about proving that the five days are needed. Finally, at no point did the chair address the need for the grievor to attend a session on research or why it was mandatory for her, given her extensive experience in this area. [11] Thus, union counsel maintained that that the college unreasonably withheld consent to the five consecutive days when she wanted it. It was reasonable for the college to do this training on UDL and research. However, it was unreasonable to require the grievor to attend because the training was not necessary for her, nor was it required by statute, nor was it necessary for the grievor to have the training at that particular time. [12] The union argued further that the mandatory training set up for February 27 was also in violation of article 11.08. There was no consent by the union prior to this date being set. Consent was never sought by the college or given by the union. 11 Counsel concluded that the breach of article 11.08 nullifies any argument by the college that there was a reasonable basis for denying the grievor’s leave request. [13] As a consequence of the college’s denial of the leave request, counsel said that the grievor notified the publisher that she was unable to write and submit the article by the deadline on July 15, 2019. This was a significant blow to her career, as she was planning to rely on the article to apply for a SSHRC grant. [14] The union seeks a declaration that articles 11.01 H and 11.08 have been breached and an order that the college must adhere to the obligations of both articles. In addition, the union seeks a remedy to compensate the grievor for the damage to her career. The union seeks an order that the grievor be given a full release from teaching duties for seven weeks in May and June 2022. [15] The counsel for the union relied on North Bay Parry Sound District Health Unit and OPSEU, 2012 CanLii 94094 (Nairn) in support of her submission. SUBMISSION OF THE COLLEGE [16] Counsel for the college submitted that the grievor was entitled to ask for five days of PD in engagement week. However, the article requires that the parties have a duty to discuss the leave and come to a reasonable agreement on when the five consecutive days of PD are taken. In this case the college granted four of the five days requested by the grievor and offered two other options for taking five consecutive PD days. [17] Counsel argued that there were competing interests between the college and the grievor: the grievor wanted the week for research for an essay and the college wanted all faculty to attend on February 27, 2019, for important training on UDL 12 and research methods. The union submitted here that the grievor would have nothing to gain from this training, but there was no submission on what the grievor could contribute to the group during the training session. The college wanted faculty with experience in research to participate so they would have the opportunity to learn from each other. Counsel submitted that the college had a legitimate interest in setting an all-faculty meeting in a non-teaching week. As the agreed statement of facts states, it is a normal practice for the college to set such training in a non-teaching week. [18] Counsel observed that there was nothing included in the grievor’s request to the chair that suggested that she needed five days in a row that week. Counsel argued that the grievor does not have the right under the article to take five consecutive PD days at any time she asks for it. Further, there was no explanation for why the lack of one day of PD in the engagement week meant the grievor could not complete work on the article she was invited to write , due on July 15, 2019. Information at paragraph 20 and 21 of the agreed statement of facts was never shared with the college during the discussion in January. [19] Counsel submitted that contrary to the union’s position that her request was simply not considered, the evidence shows that her chair responded immediately to the request explaining the reasons for the all-faculty meeting. He responded again promptly when she made a request for reconsideration. [20] However, counsel emphasized that the grievor made no response to the chair’s proposal of four days during engagement week and two other options for five days of consecutive PD in April and June. When the chair received a hard copy of the grievor’s request, he followed up a second time with his proposal for PD. The grievor did not respond. She chose not to discuss the matter further . 13 [21] Counsel submitted that the onus here is on the union to prove that the college acted unreasonably in considering the grievor’s request for five days of consecutive PD during engagement week. Counsel for the college argued that contrary to the union’s position that there was no real consideration of the grievor’s request, there was an explanation of the college’s interest in using February 27 for training faculty and the chair suggested options to accommodate her research. In this case the college granted four of the five days requested by the grievor and offered two other options for taking five consecutive PD days. [22] Moreover, the college satisfied the obligation to discuss the grievor’s request and try to reach a mutually agreeable plan for PD. The college offered her four of the five days requested and alternate possibilities for the five consecutive days in April and June. The grievor did not respond to this offer and she chose not to take them, which as counsel noted, is her right. [23] Counsel for the college argued that articles 11.01 H 3 and 11.08 have similar requirements of reasonableness. Previous decisions interpreting article 11.08 have found that the UDL and research training is the kind of training or professional development that is consistent with the language of article 11.08. Further case law has established that there are times when the college may unilaterally schedule such training, absent the teacher’s consent, where it would be unre asonable with bold consent. Union counsel argued specifically that in assigning the training for February 27 the union was not consulted in advance and therefore gave no mutual consents to this training. This issue was specifically addressed in northern Co llege, infra, where it was held that when training is required by the College there must be away for individual faculty to read raised concerns about attending. In northern the college precluded discussion by individuals by stating that those who did not attend the training would be disciplined. Counsel argued that in the case before me 14 there was no threat of discipline and there was a discussion with the grievor on attending the training. Therefore, the college submits that it met its obligation under article 11.01 H 3 and 11.08 and the grievance should be dismissed. [24] Counsel for the college relied on the following cases in his submission: Canadore College and OPSEU, unreported, July 19, 2016 (Starkman); Fanshawe College and OPSEU, unreported, June 5, 2014 (Jesin); Northern College and OPSEU, unreported, September 12, 2016 (Hayes). DECISION [25] The central issue before me is whether the college breached article 11. 01 H 3 when it denied Professor Halpé’s request for five consecutive PD days during a non-teaching week, February 25 to March 1, 2019. There was no case law cited to me that applied or interpreted this article. [26] The union relied on North Bay Parry Sound District Health Unit, supra, which interpreted similar language to article 11.01 H 3. The provision in North Bay, allowed an employee to flex time during work hours and that “it will not be unreasonably withheld, provided the needs of the program are met”. The issue in this case was whether the employer had considered if the program needs were met. The arbitrator found on the facts that the employer had not considered program needs when denying the grievor’s request and granted the grievance. [27] Counsel for the union argued that the reasoning in North Bay applies to the case before me. She argued that the denial of the five consecutive PD days was not based on the needs of the college program. 15 [28] Having carefully reviewed this decision, I find that it is not of much assistance to me. In North Bay, the employer had not considered program needs, because the request for flex time was made after the employee had taken the flex time. The employer argued that such requests should be made in advance of the need to take it, and that is why there was no consideration of program needs. The arbitrator decided that there was nothing in the article that required an employee to make the request in advance of taking the flex time. What was unreasonable here was that the employer failed to consider a specific condition in the article -- the needs of the program. There is no specific requirement in article 11.01 H 1, 2 or 3 to consider program needs. [29] Since there is no previous case law on this article, it is important to focus on the language of the article states and the parties’ agreement on much of what the article requires. Both parties agreed that faculty are entitled to at least 10 days of PD in each year. They also agreed that the allowance of 10 days includes at least one period of five consecutive PD days and that the rationale behind allowing five days consecutively is to provide an uninterrupted time to concentrate work on scholarship and teaching. The parties agreed further that the college can withhold consent if there is a reasonable basis to do so. T hus, the key question to decide is whether the college’s decision was “unreasonably withheld,” after the discussion between the chair and the grievor, which requires an attempt to agree on when the PD is taken. [30] The evidence before me is that the college scheduled and all-faculty meeting on the Wednesday of engagement week to provide all full-time faculty with training on UDL in the morning and on scholarly research in the afternoon. Training on UDL is a college initiative to improve curriculum design and accessibility to marginalized groups. Both UDL and scholarly research are part of 16 the college’s strategic mandate agreement with the Ministry of Advanced Education and Skills. [31] Dean Roffey testified that historically the college has used the eng agement week for this kind of professional development. She wanted all full-time faculty in the School of Advancement to attend, including those with extensive research experience, so that the professors could learn from each other. The Dean testified that it is typical to require attendance during engagement week at these special PD programs because it is virtually impossible to schedule such an event outside of non-teaching weeks. Although attendance was required, the Dean did consider reasons why individual faculty members could not attend. [32] Thus, on this evidence I find that the college had a legitimate reason for scheduling this all-faculty PD during the engagement week. The college acknowledged that the grievor also had a legitimate reason to request five PD days during this week for her research. Hence, the grievor and the college had competing legitimate interests on the use of engagement week. [33] Article 11.01 H does not provide that a teacher is entitled to the five consecutive days whenever requested. Article 11.01 H 3 states that the arrangement for PD shall “be made following discussion between the supervisor and the teacher subject to agreement between the supervisor and the teacher and such agreement shall not be unreasonably withheld”. The discussion between the grievor and her supervisor occurred over email. In response to her request for five consecutive PD days and for a reconsideration, the chair responded by explaining that the Dean had set an all-faculty meeting for the Wednesday and therefore he could not approve that day for her use. The chair also said that he would not expect the grievor to attend an all-day department meeting that he had set during that 17 week, in order to facilitate the grievor’s PD request. He then granted four of the five days. He also offered two alternate times that he could approve five consecutive PD days, at the end of the winter and summer terms. This is clearly evidence of taking the request seriously and attempting to come to a mutually agreeable solution, as required by the article. However, after the chair’s second response to the grievor, she did not respond. And when the chair sent a follow up email on his offer, the grievor did not respond. [34] Consequently, I am not persuaded by the union’s argument that the college gave no real consideration to the grievor’s request. The union argued that at no time during this discussion did the chair address the need for the grievor to have the all-faculty training, because in the union’s view, the grievor did not need the training. However, the evidence of Dean Roffey establishes that the PD training for UDL and scholarly research was intended for all faculty, including those with extensive experience and that is why she required all faculty to attend. [35] Counsel for the union also suggested that the chair should have asked for further details on why the grievor needed the five consecutive days in February. She argued that had he done this he would have learned how important the request was to the grievor’s career. With all due respect I am of the view that the discussion contemplated in article 11.01 H 3 requires both parties to discuss the request fully, and there is an onus on the teacher to provide a rationale for why those five consecutive days are particularly important to the research, when there are competing interests, as there were here. [36] Based on the above analysis, I must conclude that the college did not breach article 11.01 H 2 and 3. Given the circumstances of this case, the college acted 18 reasonably in withholding consent to the grievor’s request for five consecutive PD days during the 2019 engagement week. [37] One additional issue remains to be addressed. The union argued, essentially, that because the college did not consult the union before scheduling February 27 training, it had breached article 11.08. There was no “mutual consent” to the training. Thus, there was no reasonable basis to deny grievor’s request for five consecutive PD days pursuant to article 11.01 H 3. Having carefully reviewed the caselaw interpreting article 11.08, I find that I am not persuaded by this argument. [38] It is clear that this kind of training falls within the categories listed in article 11.08 of training pertaining to “quality of education” and “professional development”. Indeed, the union acknowledged that the UDL and research training was reasonable training (just not for the grievor). [39] The issue of mutual consent between the union and the college before scheduling was the issue before the arbitrator in Northern College, supra. In Northern College, the college assigned the PD training as mandatory and stated that those who did not attend could be disciplined. The arbitrator found that it was the threat of discipline that vitiated mutual consent. It is clear from this decision that the college can schedule training under article 11.08 but cannot formally assign it until after “it concludes that the professor has unreasonably withheld consent -- subject to a faculty member’s right to grieve.” (p.10) Thus, in scheduling PD during non-teaching weeks, the college must allow for a discussion with an individual faculty member as to the requirement to attend. [40] The evidence before me supports the finding that the college allowed for such discussions. Dean Roffey testified that she did consider reasons why an individual professor could not attend. 19 [41] There was a discussion between Professor Halpé and her chair regarding the training scheduled for February 27, and there was no threat of discipline if she did not attend. Accordingly, I must find that the college did not breach article 11.08. For the reasons above, I hereby dismiss the grievance. Dated at Kingston, this 31st day of August, 2021 Deborah Leighton Deborah Leighton, Arbitrator