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HomeMy WebLinkAboutWaind et al 21-09-09IN THE MATTER OF AN ARBITRATION Pursuant to the Colleges Collective Bargaining Act BETWEEN: CONESTOGA COLLEGE (“College”) - and – ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 237 (“Union”) (Grievances of Waind and Losier – Preliminary Motion) SOLE ARBITRATOR: Jasbir Parmar On Behalf of the College: Kathryn Meehan, Hicks Morley Hamilton Stewart Storie LLP Dean Bulloch, AVP, Human Resources Carolyn Galvin, Director, Employee & Labour Relations Chris Buuck, Retired AVP, Academic Administration & International Education Shawn Brake, Executive Dean, School of Interdisciplinary Studies and the Language Laura Stoutenberg, Associate Chair LINC Debra Marshall, Retired Executive Director LINC On Behalf of the Union: Melanie Anderson, Goldblatt Partners LLP Maureen Murphy-Fricker, President Lana-Lee Hardacre, Former President Annette Losier, Grievor Sonia Waind, Grievor Hearing held on May 21 and June 14, 2021, via videoconference. 1 ISSUE [1] Sonia Waind and Annette Losier have been employed for several years in the College’s Language Instruction for Newcomers to Canada (“LINC”) program . Originally, they were hired as partial load instructors, and then subsequently as full-time instructors (Ms. Waind in 2011 and Ms. Losier in 2015). By way of individual grievances, filed respectively, on November 11, 2019 and January 3, 2020, the Grievors allege the “College has not classified correctly academic work under the professor classification”. In other words, they allege the work they perform is that of a professor, and not that of an instructor. By way of remedy, they ask that their present position be declared that of a full-time professor, which would result in, inter alia, a higher wage rate. [2] This decision addresses the College’s preliminary motion. The College submits the Union should be precluded from bringing these grievances to arbitration on the basis of two grounds: promissory or issue estoppel and the doctrine of laches. [3] For the reasons below, upon consideration of the evidence, submissions, and authorities, I find the College has not established these equitable principles are applicable in the circumstances of this case. EVIDENCE [4] The parties provided me an Agreed Statement of Facts, which I set out in full in an earlier decision, dated June 7, 2021, addressing the admissibility of certain evidence. I reference some key facts. [5] The LINC program at the College began in 2008, and was staffed by employees hired as partial load instructors. There were no professors employed in the program. [6] In 2010, the Union filed a grievance alleging that the College improperly contracted employees in the LINC program as partial load when, because they were in fact working more than 12 hours per week, they should properly be considered full-time employees. As a remedy the Union requested that the partial-load employees be designated as full-time employees. [7] The parties resolved the 2010 grievance by way of a Memorandum of Agreement (MOA), which stated as follows: Whereas the Union filed a grievance dated March 15, 2010 under the collective agreement between the College and the Union regarding partial load faculty in the LINC program; And whereas the parties wish to reach a full and final settlement of all issues related to the Grievance; The Parties hereby agree as follows: 2 1. Representatives from the Union Local and College Management w ill meet, on a without prejudice basis, with the partial load faculty teaching in the Language Instruction for New Canadians (LINC) program on November 11, 2010. A t this meeting, the proposed settlement to the Union grievance will be presented, specifically, that the College will submit a proposal to Citizenship & Immigration Canada (CIC) which reflects the creation of three full time Professors and nine full time Instructors in the staffing model. Remaining hours to be covered will include partial load and part time teaching assignments. 2. Partial load faculty currently teaching in the LINC program will be invited to express their interest in a full time teaching position with the LINC program. This will be carried out in an anonymous fashion. 3. Subsequent to that meeting, the Director, Conestoga Language Institute, will discuss with CIC the viability of the proposed staffing plan. 4. Should CIC approve the College’s proposed model for delivering LINC training, the College agrees to the following: - Successful candidates for the full time positions will have a full time start date of April 1, 2011. This is subject to change should CIC agree to a different date re financing of the full time faculty - Individuals hired into the full time positions will have a probation period of one year of continuous employment - Individuals hired into the full time positions will have their start salary calculated based on their current qualifications and experience as per the Job Classification Plans contained in the collective agreement 5. It is agreed that the College will create new full time positions in LINC in accordance with funding provided by CIC and that this will constitute a full and fin al settlement of all issues related to the Grievance. Should CIC not approve funding of three full time Professor and nine full time Instructor positions as put forward by the College in December 2010, the College will endeavour to secure as many full time positions as possible through CIC and will endeavour to secure additional full time positions through future submissions to CIC. In any event, the Union acknowledges that the College has made its best efforts to create full time positions in its LINC delivery. 6. If CIC does not provide the funding necessary for the three full time Professor and nine full time Instructor positions, the College will request that CIC provide a letter outlining the rationale for its position. 7. In light of the foregoing, the Union hereby withdraws the grievance. 8. This settlement is without prejudice or precedent and shall not be raised in future whatsoever, save and except to enforce the terms herein or so as otherwise required by law. [8] Subsequent to the execution of the MOA, the LINC program has been staffed through a mix of full-time professors, full-time instructors, and non-full-time instructors. In that time, there have been eleven instructor job postings, seven professor postings, and one posting for “professors/instructors” in the program. The Union did not file any grievances in relation to those postings. [9] The Grievors, who have always been classified as instructors, performed substantially similar work prior to the MOA as they did after the MOA. 3 [10] In addition to the Agreed Statement of Facts, evidence was provided by three witnesses through will-say statements supplemented by viva voce evidence. [11] Debra Marshall was the Executive Director of Human Resources at the time of the 2010 grievance. Chris Buuck was the Associate Vice-President Academic with responsibility for the LINC program at the time of the 2010 grievance and the instant grievances. Lana-Lee Hardacre was the Union Local President at the time of the 2010 grievances and the instant grievances. All three of them were involved in the parties’ settlement negotiations relating to the 2010 grievance. [12] While I have closely considered all of the evidence of the witnesses, I have set out below only the evidence I found to be most material to the issues in dispute. COLLECTIVE AGREEMENT [13] The collective agreement, both the one in effect at the time of the filing of the instant grievances and the one in effect at the time of the filing of the 2010 grievance, provides class definitions for both the professor classification and the instructor classification. PROFESSOR Under the direction of the senior academic officer of the College or designate, a Professor is responsible for providing academic leadership and for developing an effective learning environment for students. This includes: a) The design/revision/updating of courses, including: - consulting with program and course directors and other faculty members, advisory committees, accrediting agencies, potential employers and students; - defining course objectives and evaluating and validating these objectives; - specifying or approving learning approaches, necessary resources, etc.; - developing individualized instruction and multi-media presentations where applicable; - selecting or approving textbooks and learning materials. b) The teaching of assigned courses, including: - ensuring student awareness of course objectives, approach and evaluation techniques; - carrying out regularly scheduled instruction; tutoring and academic counselling of students; - providing a learning environment which makes effective use of available resources, work experience and field trips; - evaluating student progress/achievement and assuming responsibility for the overall assessment of the student's work within assigned courses. c) The provision of academic leadership, including: - providing guidance to Instructors relative to the Instructors' teaching assignments; - participating in the work of curriculum and other consultative committees as requested. 4 In addition, the Professor may, from time to time, be called upon to contribute to other areas ancillary to the role of Professor, such as student recruitment and selection, time-tabling, facility design, professional development, student employment, and control of supplies and equipment. INSTRUCTOR The instructor classification applies to those teaching positions where the duties and responsibilities of the incumbent are limited to that portion of the total spectrum of academic activities related to the provision of instruction to assigned groups of students through prepared courses of instruction and according to prescribed instructional formats; and limited to instruction directed to the acquisition of a manipulative skill or technique; and under the direction of a Professor. Notwithstanding such prescription, the Instructor is responsible for and has the freedom to provide a learning environment which makes effective use of the resources provided or identified, work experience, field trips, etc., and to select suitable learning materials from those provided or identified to facilitate the attainment by the students of the educational objectives of the assigned courses. The Instructor’s duties and responsibilities include: - ensuring student awareness of course objectives, instructional approach, and evaluation systems; - carrying out regularly scheduled instruction according to the format prescribed for the course, including as appropriate, classroom, laboratory, shop, field, seminar, computer-assisted, individualized learning, and other instructional techniques; - tutoring and academic counselling of students in the assigned groups; - evaluating student progress/achievement, assuming responsibility for the overall assessment of the students’ work within the assigned course, and maintain rec ords as required; - consulting with the Professors responsible for the courses of instruction on the effectiveness of the instruction in attaining the stated program objectives. In addition, the Instructor may, from time to time, be called upon to contribu te to other activities ancillary to the provision of instruction, such as procurement and control of instructional supplies and maintenance and control of instructional equipment. [Emphasis added] [14] Significantly, both the professor and instructor class definitions have teaching as a job duty. However, the type of teaching performed by instructors is limited in nature. ANALYSIS [15] The College submits the Union should be precluded from proceeding with the two individual grievances. The College makes two arguments in support of that position. The first is on the basis of promissory or, alternatively, issue estoppel. The second is on the basis of the doctrine of laches. 5 [16] There is no dispute in this case about the evidentiary elements necessary to establish estoppel. As set out in Toromont Industries Ltd. v. IAMAW (2009), 192 L.A.C. (4th) 1 (Surdykowski), the party seeking to assert estoppel must prove that: a. The other party made a clear and unequivocal representation concerning the interpretation or application of the collective agreement; b. That the representation was intended to and does in fact affect the legal relations between the parties (intention can be established by implication); c. That it relied upon the representation by doing something or foregoing the opportunity to do something, and that it would have acted otherwise but for the representation; d. That its reliance is detrimental because the situation cannot be restored to what it was when the representation was made. [17] The College submits the Union made a representation to the College that it accepted that the work being performed by employees holding the instructor position in the LINC program since its inception was properly classified as instructor work. Since the Grievors performed substantially the same work as instructors from their original date of hire and through to the filing of the grievances, it is submitted the Union should be estopped from now asserting that work is not properly classified as instruct or work. [18] The College’s submissions on estoppel relied significantly on the MOA, and in particular the settlement negotiations that led to the MOA. It is useful to begin there, given my earlier decision about the limited nature of the admissibility of evidence about settlement negotiations leading to the MOA. [19] The College submits that the MOA itself constitutes a representation because, it asserts, the Union agreed in the MOA that there would be a staffing model in the LINC program where employees holding instructor positions would perform substantially similar work to that which they performed prior to the settlement, and the change would be that a new position of professor would be created to provide academic leadership and direction to those instructors. [20] The College did not argue that this interpretation of the MOA is evident from a plain reading of the MOA. This is not surprising, because a plain reading of the MOA clearly does not support the College’s position. I note that it is a basic tenet of interpretation, which is applicable to settlement agreements, that effect must be given to the mutual intent of the parties as reflected by their written agreement. Parties are presumed to have meant what they said. A review of what the parties said in the MOA indicates the essence of the settlement was that the College was obliged to create, or at least attempt to create, a certain complement of full-time professor and full-time instructor positions as part of 6 the staffing model in the LINC program. While the MOA uses the terms “instructor” and “professor”, there is no reference therein to the specific job duties that would be performed by employees in either of those positions, full-time or non-full-time. There is also no reference to the duties performed by any employee at the time of the filing of the grievance, including no reference to whether or how those duties would be performed after the execution of the MOA. [21] The College did not allege there was any ambiguity in any of the terms of the MOA. However, it submitted that evidence of the parties’ settlement negotiations would show that the terms “staffing model”, “staffing plan” and “proposed model for delivering LINC training” in the MOA referred to how positions in in the LINC program were to be classified. On that basis, and only for that singular purpose, I earlier determined that evidence of the parties’ settlement negotiations, to which settlement privilege attached, was admissible. [22] However, there is no evidence from any witness that any part of the MOA referred to the proper classification of any employees. Ms. Hardacre specifically stated it did not. Ms. Marshall expressly agreed, on cross-examination, that when the parties used the terms “staffing model” and “staffing plan”, both in the course of their settlement discussions and in the MOA itself, it was in reference to the model upon which the College would make its proposal for funding to CIC for the LINC program – namely the particular complement of full-time professors and full-time instructors. She did not indicate that the terms had anything to do with the specific job duties that would be performed by either classification. In fact, she stated there was no discussion about the specific work that would be assigned to professors as opposed to instructors. [23] There was evidence from Ms. Buuck about some statements made by Pat Bower, a union steward. I refer in particular to Ms. Buuck’s evidence that during the parties’ negotiations about the grievance Ms. Bower “expressly agreed that the teaching work in the LINC program was the work of instructors”, and that Ms. Bower indicated that she had done some research about other colleges and confirmed that “yes, in fact instructor was the correct classification for our folks but what was absent in our model was professors”. These comments are of little significance because Ms. Buuck expressly acknowledged that the parties did not include in the MOA any agreement about the definition of the scope of the work of instructors in the LINC program, or any agreement that instructor roles would not be changing. [24] Given this evidence, there is no basis to conclude the MOA, properly interpreted, is an agreement by the Union that the work assigned to LINC instructors prior to the MOA properly fell within the instructor classification, that instructors would perform substantially similar work after the execution, or that the collective agreement class definitions did not apply in the LINC program. As such, the College has failed 7 to establish that the MOA constitutes a clear and unequivocal representation in respect of the interpretation or application of the collective agreement provisions relating to instructor and professor classifications. [25] It seemed to me that the College was relying on Ms. Bower’s statements in and of themselves, separate and apart from their value in determining the proper interpretation of the MOA. The College submitted Ms. Bower’s statements constituted an express representation by the Union that it accepted the instructors in the LINC program as being properly classified. [26] However, as I noted in my earlier decision, evidence of statements made during the settlement negotiations is only admissible to the extent they were of any assistance in interpreting the MOA. I refer to paragraphs 28 and 31 of my earlier decision: [28] What these cases show is that evidence which otherwise may be subject to settlement privilege is admissible if it is necessary to determine an issue in dispute, such as the scope of a settlement or the interpretation of a term of a settlement. However, it is important to keep in mind the caution in Bombardier, that the existence of a dispute does not mean the settlement discussions are admissible holus bolus. In fact, the Court in that case indicated there should be a separate motion to determine which specific evidence from the settlement discussions was adm issible on the basis of necessity (see para. 66). Only the discussions that directly relate and assist in determining the dispute are admissible; the privilege continues to apply in respect of the remainder of the settlement discussions. … [31] There is, however, a dispute as to the proper interpretation of the terms that comprise the settlement. The College submits that, properly interpreted, the MOA addresses the issue of classification and the Union submits it does not. A dispute about the proper inte rpretation of the settlement must be resolved through an interpretation of the wording of the terms of the settlement, and there is a well-established set of principles to aid arbitrators in this task. As a general principle, extrinsic evidence is permitted where it would aide in the task of interpretation, to the extent it reveals the mutual intention of the parties as reflected in the written agreement. In the present case, the College has not asserted the MOA is ambiguous, but does assert the impugned evidence will provide the context to support its asserted interpretation of the MOA as impacting the issue of classification. Without having fully heard the College’s argument as to the proper interpretation of the terms of the MOA based on this evidence, it is not possible for me, at this stage, to conclude that it is irrelevant and therefore not necessary. For that reason, I find the evidence of the parties’ settlement discussions preceding the execution of the settlement is admissible. [Emphasis added] [27] Beyond their relevance with respect to interpreting the MOA, these statements continue to be protected by settlement privilege and are therefore inadmissible for any other purpose. As they are inadmissible, and therefore cannot be relied upon, they cannot possibly be representations upon which estoppel can be based. [28] Even if the parties’ privileged discussions in the course of the settlement negotiations were admissible, in my view the evidence does not assist the College in meeting the test for estoppel. Ms. 8 Buuck testified that she understood Ms. Bower’s statements to be an agreement by the Union that the duties being performed by instructors in the LINC program at the time were properly the duties of the instructor classification. Of course, an individual’s subjective understanding is of little relevance. The test is whether the evidence can establish the other party actually made a clear and unequivocal representation. [29] Ms. Bower’s statements must be viewed in the context of the totality of the parties’ discussions, which was directed at resolving a dispute about whether the existing employees were properly full-time employees or partial load employees. The evidence of all the witnesses is consistent that in the course of their negotiations, the parties discussed the work of instructors only “at a high level”, without discussion about the specific nature of the work performed. Ms. Hardacre stated that, on instructions from the OPSEU Academic Division, she inquired how it was there were no professors in the program, because instructors have to work “under the direction of a Professor” – a clear reference to the collective agreement instructor class definition. It was also Ms. Hardacre’s unchallenged evidence that during those discussions the College advised the Union that the instructors taught from prepared courses of instruction and according to prescribed instructional formats – again a clear reference to the collective agreement instructor class definition. The parties ultimately agreed that new professor positions would be added to the program, but, as Ms. Marshall acknowledged, there was no discussion about the specific work to be assigned to professors and instructors. While Ms. Buuck testified that during these discussions she told the Union that the staffing model “had to be based on Instructors teaching”, there was no evidence that the parties discussed the particular type of teaching that was being performed in the LINC program, other than Ms. Hardacre’s unchallenged evidence about the College’s statements in that respect. It should also be noted that this discussion occurred in the context of a collective agreement which states that teaching, speaking generally, is a job duty of both the instructor and professor classification in this collective agreement. It is only when one examines the specific work involved in the particular teaching being done that there is a distinction between the teaching work of instructors and the teaching work of professors under the collective agreement. Any discussion that refers to teaching in a generic fashion, without any other details about the specific nature of the teaching that is being performed, is not a discussion about the distinction between the job duties of a professor versus an instructor. Lastly, while Ms. Bower’s may have indicated that “instructor was the correct classification”, this statement was, according to Ms. Buuck’s evidence, based on Ms. Bower’s “research” at other colleges, and not on the specific manner in which work was being performed in the LINC program at this College. [30] When the evidence of the negotiations is considered as a whole, it is an unreasonable stretch to conclude that Ms. Bower’s statements were a clear and unequivocal representation by the Union that it 9 was in agreement that the specific work being performed by instructors in the LINC program at the time was properly classified as instructor work, or that it would not rely on its rights under the collective agreement with respect to job classifications in the LINC program. [31] The only other evidence to which the College points as constituting a representation, in support of its promissory estoppel argument, is the fact that there have been numerous instructor job postings in the LINC program before the 2010 grievance was filed and after the signing of the MOA in 2010, and that the Union never grieved any of these postings. It is suggested that the Union’s silence, or failure to grieve, in the face of those job postings constitutes a representation that it accepted instructors were properly classified. [32] However, a party cannot be considered to be making a representation that it accepts a practice unless it is demonstrated it had knowledge or reasonably ought to have had knowledge of the practice (see for example University College of the Cariboo and CUPE (2002), 114 L.A.C. (4th) 337 (Germaine); Board of Commissioners of Police for the City of Owen Sound and Owen Sound Police Association (1984), 14 L.A.C. (3d) 46 (Picher); and BC Ferry Service Inc. and BCFMU (2012), 229 L.A.C. (4th) 288 ) (Korbin). [33] In the present case, the evidence does not establish the Union had the requisite knowledge or reasonably ought to have requisite knowledge. Ms. Hardacre explained that no grievance was filed earlier because she was not aware of the exact nature of the work assigned to the instructors. She herself never worked in the LINC program, and it was not until 2018 that someone from the LINC program, specifically Ms. Waind, became a union steward. Upon reading a 2019 decision of the Ontario Labour Relations Board, Ms. Waind came to understand that classification of instructors and professors was based on the nature of their teaching duties, and raised this issue with Ms. Hardacre, leading to the filing of the instant grievances. It is not unreasonable that the Union may not have knowledge of the College’s practice in a particular program that impacts only a small proportion of the membership. [34] I accept Ms. Hardacre’s evidence, which was unchallenged, that reviewing the jobs postings on their face raised no flags for her. I agree there is nothing in the job postings which would indicate to someone not familiar with the intricacies of the LINC program that the persons hired for instructor positions would actually be doing the work of a professor under the collective agreement. In fact, the College did not point to anything in particular in the instructor postings which would have made that obvious. I also observe that after the MOA was executed, the College posted and hired for both professors and instructors in the LINC program, using different postings for professors versus instructors (except for the one posting that was for “Professors/Instructors”). The natural assumption to someone reviewing them is that the College was assigning the successful incumbents distinct job duties meriting 10 the distinct job titles, presumably in compliance with the collective agreement which draws a distinction between the job duties of the two positions. [35] Similarly, none of the documentation provided by the College to the Union over the years in relation to membership, dues, or wages spelled out the specific job duties of the instructors in the LINC program. [36] In the absence of evidence that the Union knew that the specific nature of the work being assigned to instructors versus professors in the LINC program, or evidence that established the Union ought reasonably to have known, the fact that no grievances were filed in response to job postings cannot be interpreted as a representation by the Union that it would not rely on the classifications as set out in the collective agreement in respect of the LINC program. [37] Alternatively, the College submitted that the Union should be barred from proceeding with these grievances on the basis of issue estoppel, based on the MOA. [38] At its most basic, the application of issue estoppel requires the same issue to have been previously addressed: U.F.C.W. Locals 175 & 633 v. Cuddy Food Products (2003), 121 L.A.C. (4th) 56 (Etherington). The 2010 grievance was about classification on the basis of hours of work, not the specific job duties. Of course, it is always open to labour relations parties to reach a settlement that extends beyond the specific scope of a grievance as filed. However, I have already found the MOA does not address the issue of the specific job duties to be performed by any particular classification. As such, it simply cannot be said the issue raised by the instant grievances, that is whether the job duties being assigned to the Grievors are properly classified as the job duties of a professor or an instructor, was addressed by way of the earlier grievance or the MOA. Accordingly, there is no evidentiary basis upon which issue estoppel can be established. [39] The College’s final submission was that the Union should be barred from proceeding with the instant grievances on the basis of the doctrine of laches. The College acknowledged the instant grievances are continuing grievances. Arbitrators usually address the issue of timeliness in the context of continuing grievances by limiting remedy to the period of time specified for filing a grievance in the collective agreement, and the parties agree that should occur in the instant case in any event. [40] However, the College submits that the doctrine of laches can be used to bar a party from pursuing a continuing grievance. The Union asserts that it cannot, or alternatively that it should not be applied in the instant case. [41] Given my conclusion on this point, I need not address the issue of whether the doctrine of laches is applicable to a continuing grievance. 11 [42] In York University and York University Faculty Association, 2021 CanLII 31520, Arbitrator Gedalof closely reviewed the jurisprudence on this point, including all of the decisions referenced by the College in the instant case. As he noted, the doctrine of laches is an equitable principle, and arbitral discretion to apply it is ultimately based on the specific facts of the case and whether the elements of acquiescence and resulting prejudice have been established, as well as a conclusion that it would be unfair to permit the grievance to proceed. [43] I also refer to the following comments from Parking Authority of Toronto and CUPE, Local 43 (1974), 5 L.A.C. (2d) 150 at 157: One cannot be charged with effective acquiescence in the breach of a right unless he has shown to be aware of the right or unless the circumstances are such as to justify the conclusion that he must have been aware of it. [44] In the instant case, as already noted above, the evidence does not establish the Union knew the College was assigning work to instructors in any manner other than in compliance with the collective agreement class definitions or that it reasonably can be presumed to have known. It is impossible to conclude a delay is unreasonable in these circumstances, or that it constitutes acquiescence. None of the cases cited by the College applied the doctrine of laches without first finding the union had or should have had knowledge. Having failed to establish acquiescence, there is no equitable basis for the College to prevent the grievance from being determined. [45] In summary, I find the College has not discharged its onus to establish the requisite elements of promissory or issue estoppel, or the doctrine of laches. DISPOSITION [46] The College’s preliminary motion is dismissed. The grievances may proceed. DATED THIS 9TH DAY OF SEPTEMBER, 2021. “Jasbir Parmar” ______________________________ Jasbir Parmar, SOLE ARBITRATOR