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HomeMy WebLinkAboutHaskett 10-03-15 IN THE MATTER OF AN ARBITRATIoN BETWEEN FANSHAWE COLLEGE OF APPLIED ARTS AND TECHNOLOGY and ONTARIO PUBLIC SERVICE EMPLOYEES' UNION RE: DISCHARGE GRIEVANCE OF MARK HASKETT BOARD OF ARBITRATION Michel G. Picher Chair Martha Young Nominee for the College Ron Davidson NomInee for the Union APPEARANCES FOR THE COLLEGE Aida Gatfield Counsel for the College Pam Skinner Dean, Health Science & Human Services Don Mcintyre Labour Relations Consultant Clark McKee Human Resources Consultant Janet Dame Operations Manager, Faculty of BusIness APPEARANCES FOR THE UNION Val Patrick Grievance Officer Marg Ray President, Local 109 Mark Haskett 151 Vice-PresIdent, Local 1 09 Andre Savoie Chief Steward Hearings in this matter were held in London, Ontario on March 09, 2009 and October 20,2009. PRELIMINARY AWARD This arbitration concerns the termination of employee Mark Haskett. The College maintains that Mr. Haskett was terminated as a probationary employee as a result of having been found unsuitable. The Union submits that the grievor was in fact a regular full-time employee, and not a probationary employee, at the time of his discharge. On that basis it submits that there was not just cause for his termination in accordance with the standards which would apply to a permanent employee. The College stresses that the initial grievance filed alleged bad faith, impllcitly recognizing that the grievor was in his probation period at the time of his termination. It submits that the Union's attempt, at the arbitration stage, to argue that prior part-time service by Mr. Haskett should apply towards his probationary period is an expansion of the grievance which is improper and, in any event, untimely. The preliminary issue to be resolved is whether Mr. Haskett was a probationary employee at the time of his termination. The facts pertinent to the dispute are not substantially contested. Mr. Haskett was hired as a part-time employee in October of 2007. He was assigned as a technician in the School of Information Technology (IT). His responsibilities included the upkeep and oversight of equipment in some six computer laboratories, occasionally giving assistance to students with the use of the equipment. It appears that he also did some occasional technical support work in the College's personnel office. 1 As Mr. Haskett relates it, he was responsible for the upkeep of computers and equipment and giving IT support to both faculty and students dealing with hardware and software problems, ensuring that labs were ready for use and, where necessary, properly upgraded by the addition of either new hardware or new software. In that capacity Mr. Haskett worked immediately under technologist Som Pravong, with whom he shared a common office. His management supervisor at the time was Ms. Janet Dame who, it does not appear disputed, was located elsewhere and visited the grievor on an occasional basis. During the course of the hearing the grievor filed in evidence a written summary of his own view of his duties as a part-time employee in technical support. That document reads as follows: Worked under the supervision of Som Pravong, Technologist in G Building, working within the various Computer Labs and classrooms. Worked in coordination with, and taking guidance from various Faculty members including Chairs of departments. Duties included providing technical and educational support to college staff and students in computer labs for several Courses in the Information Technology School. This support was provided to Professors, Staff and students during classes as well as outside of class time. Within the Computer Networking Courses, also provided direct student support within their self-directed studies. Provided both one~on-one support as well as group sessions to assist with educational concepts. Collaborated with Faculty and assisted Faculty Members in creating and improving services they could offer students 2 using the Internet. This work helped create new learning systems as required by the given Faculty Members. (eg. Worked to design new program to allow Professor to monitor student work online in the programme.. Responsible for the system administration of various software programs required for use by the Faculty and students. In the spring of 2008 the grievor was successful as an applicant for a full-time position with the College. That is confirmed in the following excerpt from a letter sent to him by the College's president, dated March 25, 2008. Dear Mr. Haskett: Fanshawe College is pleased to offer you employment on the terms and conditions outlined below. Your role will be as Technical Support - Fanshawe Online and Computer Lab, in the Schools of Health Sciences, Human Services and Nursing, Faculty of Health Sciences and Human Services, commencing on April 7, 2008 with duties as specified in the attached position description form (PDF). Terms and conditions of employment are outlined in the Ontario Colleges of Applied Arts and Technology Support Staff Collective Agreement, a copy of which is enclosed. You are subject to a 6 month probationary period under Article 14 of the collective agreement. This is a full-time appointment with remuneration at payband F as outlined in the current collective agreement, starting at $21.87 per hour for 35 hours per week. You will be paid bi- weekly by direct bank deposit. You are not permitted to accept other appointments or contracts within the College without the advance written permission of your Manager. This confirms you have advised that you currently are engaged in other employment with Fanshawe College as Support Part-time which will end on April 4, 2008. 3 As noted above Ms. Janet Dame, Operations Manager in the Faculty of Business, was the grievor's supervisor when he worked as a part-time employee between October of 2007 and April of 2008. She stressed that full-time technologist Sam Pravong was the "go to" person for either students or faculty who needed technical assistance although the grievor might be called upon if he happened to be the only person in the office. As she described it, the grievor's responsibilities were principally to ensure that hardware and software were functioning correctly, depending on the unique requirements of various labs. She noted, for example, that some students with laptops would need help accessing software, something the grievor could help with, with respect to downloads. His duties also involved invigilating examinations and reconfiguring lab rooms to accommodate the needs of different faculty members and different student groups. His responsibilities extended to checking imaging and networking the lab computers as required. According to Ms. Dame the grievor's duties did not extend to substantial collaboration with the faculty or significant planning consultation. She notes that there is a "Fanshawe Online person" for the Faculty of Business who handles that responsibility. The Online person, unlike the grievor, was responsible for dealing with the issues of students or faculty and the analysis of the systems including problems with accounts, websites, quizzes and the like. She relates that the part-time employee had no role in designing networks, fashioning new learning systems or attending any organizational meetings. 4 The full-time position to which the grievor was appointed effective April 71 2008, is the position of "Fanshawe Online Administrator" referred to in the evidence of Ms. Dame. Greater elaboration of the duties and responsibilities of that job was given in the testimony of Ms. Pam Skinner, Dean of Health Sciences, Human Services and Nursing, the person to whom the grievor reported in his full-time position. Ms. Skinner describes Fanshawe Online as a learning management system intended to assist faculty and students by facilitating teaching and learning. Noting that the faculty has a wide range of individuals, some with great sophistication and some with little sophistication in computers, she explained that the College wished to take Fanshawe Online to a higher level where, for example, anatomy labs could be conducted entirely online. Because not all faculty were technically oriented, the Online position would involve consulting closely with faculty, investigating solutions and conducting various trials to develop the necessary technical teaching and learning tools. Reviewing the position description for the Fanshawe Online Administrator, Dean Skinner points to the following description of the duties and responsibilities of the position: rmm__mnn__u___m_m____mmm._.unmnnmnmnm_nm_m_mmnm_m__mnmm-nmmnn....n........rAp.j:;roxTrrifi-ienl I 1 % of time ! fmn__m____.____n_nnn......_.....................n...._..mmmmmmnnmm_n_n_n_mnnn_nm_nmnm_____nl__~_Qr!~_~J-'-y.:__.u..uj ! Provides support to students and professors in the Faculty i I I of Health Sciences and Human Services using course I 25% I 1-~r~~i~i~~a.~~iW~s~f~.~b!o~~s~Wg-6~ties-(uslrig-course---1--.....-.-.-.--...-1 L~9_~_~g~~~~.t!g.<?J.~HQr_e~gf~_~~g!~n!!:1_~t~Q!!}gJ?r.<?y.l9JQ_9._...u._._..mLmmm~_~r~m_m___j 5 design assistance, uploading course files, uploading student lists onto sites, updating student accounts and H~~~!l~.gH~J?n9n_IJ_~~_.9_~!~_~~~LQ~_~_~!~_gn~J?n~~_t~_~~nmnmmmnmnmmmnm___ _mnnmm_mm_mmm Maintains course web sites during the semester and resets 15% at end of the semester. +...+...++++..++.+++-o.-+...++__+..+~.+~_-o.-+.++_+.....______++__+_____+_________+..________________________+.+..__....____+..__..__..+_....._______.__..__.+___+__+____..+......__.........++.+__ Supports professors in the Faculty of Health Sciences and Human Services by assisting in the development of course 15% learning materials and the effective incorporation of course learning materials into course management tools such n{E_~!:!~_~~~~nQ_~J_!Q_'?l_________________________________________m________________m___________n_nn_n_nn__ mn_nnmnnm___nn____ Supports professors and students in the Faculty of Health Sciences and Human Services during the semester in the 15% use of software applications packages used in courses, including Microsoft Office, desktop publishing, website ng_~y.~_lgp.~_~D.!._9_~~_g!.~J?_~JQ~_.R_~Q~~g_~_~:__________________________n____________________n_______n_n_____n______________ Acts as a back-up to Lab Technician as required. Performs ng_t~_~!.J~!9_~~gnQ!:l_!J~~__9_~__~P.P.rgP.r.!9_!~:m_______________________________m__________mmnn nmnnm9_%_____mm_ According to Dean Skinner there is a substantial collaborative and consultative role in the duties of the Online Administrator, extending from setting up the course web sites and homepages for the labs and all of the programs of the faculties, which requires substantial dialogue with faculty members and program coordinators. According to her evidence, the burden of communication would involve scripting memos to the faculty members to advise of technological changes which are coming, areas of focus for new developments and how to access the Online Administrator for ongoing assistance. She notes that the duties also involve communications outside the faculty, meeting once monthly with F anshawe Online coordinators to keep people abreast of any coming changes. The administrator also oversees any possible conflicts in priorities within the three schools of the faculty, dealing with the dean or department chairs to establish appropriate prioritizing. 6 According to Dean Skinner, her first thought about the duties of the grievor in his new position was that he should conduct a general analysis of the utilization of technical equipment and technical services within the faculty. She requested that such a study be made and presented at a retreat, hoping that the report prepared by the grievor would become the framework for the strategy to be followed over the ensuing year, She stressed that the incumbent in the Online Administrator position is not expected to spend significant time handling or moving hardware and should not be involved in helping students with homework and assignments, as might be the case for a lab technician. In comparing the lab technician's position with the position of Online Administrator Dean Skinner stressed that the technician's position is "other directed" while the Online Administrator is "highly self-directed". She recounts that she met with the grievor monthly and also received feedback from others about the quality of the support which he was providing, During crosswexamination Dean Skinner expressed concerns about certain aspects of the work performed by the grievor as the Fanshawe Online Administrator. Among other things, she noted that he was responsible for overseeing the introduction of uclicker technology", a system which gives faculty members immediate feedback from their students by the use of a clicking device. While that technology was supposed to be in place for September of 2008, in fact delays were incurred by reason of some difficulty in obtaining the clickers. However, according to Dean Skinner, Mr. Haskett did not inform the appropriate personnel of the problem, which in the end caused delay to the program. She explained that his involvement with the technology was considerably 7 more than simply uploading a disc, and that it extended to setting up the system in classrooms, troubleshooting problems and giving support to new users of the system. According to her evidence, the responsibilities of the Fanshawe Online Administrator were substantially different from those exercised by Mr. Haskett in his part-time position at the help desk. She characterized his part-time work as more technical in nature than the full-time position, stressing that in his full-time position he had a greater fundamental planning responsibility, overseeing the introduction of systems and homepages. While Dean Skinner confessed to not being fully conversant with all of the technology, she indicated that she heard complaints from the faculty about his work. According to Dean Skinner an important aspect of his responsibilities involved developing relations with faculty members to better deal with issues such as assessing needs and planning for new programs, an area in which she says that he demonstrated weak interpersonal communication skills and failed to demonstrate the self-starting ability to deal with faculty members. In an attempt to counter the evidence of Dean Skinner the Union called as a witness Dr. Harold Saul Sobel, who is a computer support specialist with the College. According to his evidence, the part-time technician's position held by Mr. Haskett and the Fanshawe Online Administrator's job are not dissimilar. He describes the full-time position as involving working to assist students and professors to get their material online, maintaining the efficient working of the Online system. According to Dr. Sobel if anything the technician's job is more complex than that of the Fanshawe Online 8 Administrator. In his view the involvement with students and staff is about the same in both positions. The record discloses that the grievor was terminated from what the College considered to be his probatio,nary position on October 3, 2008, with the Union being notified by email. Subsequently the Union requested a review of the file and meetings ensued during October. A memorandum dated November 11, 2008, addressed to the Union's president from College officer Don Macintyre, confirms that the matter was deemed by both parties to have been moved to the next step, being arbitration, following what the parties deemed to be an exhaustion of the grievance process. As noted above, the grievance document, dated October 8, 2008, reads as follows: STATEMENT OF GRIEVANCE Violation of article 18.2.5, 18.6, and any other articles of the collective agreement, past practice, progressive discipline and any other labour legislation. On Oct 3 2008 I was called to a meeting with my manager Pam Skinner and was told my performance was not up to standards and was terminated. My termination by the college was made in bad faith. The Union's representative submits that the grievor was not a probationary employee at the time of his termination and that he is entitled to the full protection of the just cause standard which applies to permanent employees. Central to the Union's 9 position is the argument that the work performed by the griever in his part-time technician's job is to be credited towards his probation in the position of Fanshawe Online Administrator. In that regard reference is had to the following provisions of article 14 of the collective agreement. 14.1 Probationary Period An employee will be on probation until he/she has completed six (6) months of employment with the College in any twelve (12) month period. At the discretion of the College, the probationary period may be reduced for an individual employee to such period of time as the College may determine. On successful completion of the probationary period, he/she shall then be credited with seniority equal to the probationary period served, and seniority thus acquired shall be applied in the manner set out in this Article. 14.5 Proration of Part-Time Service for Probation Where a part-time employee is hired by the College into a full-time position in the bargaining unit, which is either the same position or, is sufficiently similar in nature, he/she shall be credited with service towards completion of the probationary period, based on a proration of the hours of the part-time position to the hours of the full-time position, to a maximum period of credit of three (3) months service towards the completion of the probationary period, and provided such service occurred within one (1) year of the date of hiring into the bargaining unit. It is not disputed that if the grievor's service in his part-time technician's position were credited for the purposes of article 14.5 to his probation as a full-time regular employee in the Fanshawe Online Administrator's position, he would have completed his probationary period prior to his termination on October 8, 2008. Conversely, should 10 his part-time service not be deemed "". sufficiently similar in nature" to the full-time administrator's position, he would indeed have been a probationary employee at the time of his discharge. The Union argues that there is no significant difference between the duties the grievor performed as a part-time technician working from the help desk and those which he was responsible for in the full-time job of Fanshawe Online Administrator. Its representative argues that in the technician's position he operated as a self-starter, prioritizing work, for example by giving first preference to faculty members over students, analyzing and solving problems. He argues, in part, "The work he did as a technician just became full-time in the FOL job". The Union representative submits that in the full-time position the grievor may have communicated with staff at a higher level, but essentially the same skills were being utilized. Noting the evidence of Ms. Dame, the Union's representative stresses that as a part-time employee the grievor was under little direct supervision, essentially working independently, as Ms. Dame only visited him periodically. He submits that the evidence of Dean Skinner must be viewed sceptically, given her own admission that she is relatively unsophisticated in the technical world of computers, suggesting that she is not well placed to make a meaningful comparison of the two jobs. He submits that the duties for the FOL position reproduced above essentially are identical to those performed by the grievor in his capacity as a part-time technician. He argues that, at 11 best, the difference between the part-time and the full-time positions cannot be analogized to the difference between a plumber and an engineer. The Union's representative points to the language of article 14.5 and suggests that the phrase "sufficiently similar" denotes a threshold requirement and not an absolute congruity between the two positions. Nor, he submits, can the College assert the wording of the grievance as the basis to prevent the grievor from asserting his substantive rights under the collective agreement. Essentially, he submits that if the grievor achieved the status of a permanent employee, that status cannot be waived or dismissed, as it is a substantive right which cannot be lost by waiver or inadvertence. He stresses that grievances are intended to be handled in a relatively informal way, by local union officers who may have limited sophistication in the, application of the collective agreement and who might not reasonably have been expected to advert to the application of article 14.5 in the case of the grievor. Finally, he argues that the College cannot claim to be prejudiced by the issue now raised by the Union concerning the grievor's proper status. He notes that his position was communicated to the College fully one week prior to the hearing, so that there was no practical impediment to the College's ability to meet the Union's argument. Counsel for the College presents a substantially different position, which includes two objections to the grievance as presented by the Union. Firstly, she stresses that the grievance document itself contests the discharge of a probationary employee as 12 evidenced by the allegation of bad faith in the College's decision. That, she stresses, was the basis of all discussions of the grievance between the parties over a substantial period of time. The Union's present position to the effect that the grievor is not a probationary employee was first raised only shortly before the arbitration hearing. Noting that the collective agreement expressly prohibits probationary employees from asserting the just cause standard, counsel for the College argues that it is improper for the Union to now attempt to change the basis of the grievance by belatedly raising an altogether different standard of review for Mr. Haskett's termination. She submits that the Union must be viewed as sophisticated in the ways of collective bargaining and in particular in the operation of this collective agreement. In her view to now raise the just cause provision, which places the onus upon the College, as contrasted with the onus being on the Union to prove bad faith in the case of a probationary employee, is to effectively put a whole new grievance before this Arbitration Board. That expansion of the grievance, she submits, should not be allowed. Secondly, as a preliminary objection, counsel for the College submits that the Union is out of time to grieve on an entirely new basis. Counsel submits that if the Union had an issue with respect to the compilation of the grievor,s probationary period, to the effect that the College's view was not accurate, the time to raise that question was when the grievance was initially filed, which is to say when the Union became aware of the College's decision to terminate Mr. Haskett. 13 With respect to the issue of awareness, counsel adverts to the letter of March 25, 2008, which offered the grievor his permanent employment. She stresses that that letter expressly states: "You are subject to a 6 month probationary period under Article 14 of the collective agreement." Counsel argues that the Union was aware that the grievor's full-time appointment took effect April 30, 2008, and that if there was any issue with respect to the calculation of the six (6) month probationary period the right to grieve that question crystallized at that time. In support of the College's position counsel cites to the Board of Arbitration the provisions of article 18.5.1 of the collective agreement which provides, in part, as follows: 18.5.1 Grievances A complaint shall be taken up as a grievance in the following manner and sequence provided it is presented within fifteen (15) days after the circumstances giving rise to the complaint have occurred, or have come or ought reasonably to have come to the attention of the employee. According to the view of counsel for the College, the provisions of article 18.5.1, which describe mandatory time limits, would have operated in either of two ways. Firstly, if the fifteen (15) day period is counted from the time of the initial letter to the grievor or his commencement in his full-time position, on April 30, 2008, the grievance of October 8, 2008, or the later position advanced by the Union prior to the arbitration concerning permanent employee status, are plainly out of time. Secondly, at the time of termination on October 3, 2008, there was no grievance filed within fifteen (15) days challenging the grievor's status as a permanent employee or objecting to the calculation of the six (6) month probationary period referred to in the hiring letter of March 25, 2008. 14 On that alternative basis, she submits that the grievance must be viewed as untimely. As regards the consequences of untimeliness she draws to the Board's attention the mandatory provisions of the collective agreement concerning time limits and in particular the terms of article 18.2.1 which read as follows: 18.2.1 Time If the grievor fails to act within the time limits set out at any Complaint or Grievance Step, the grievance will be considered abandoned. On the foregoing basis counsel submits that the grievance, to the extent that it would assert that the grievor is a regular employee having completed his probationary period, must be viewed as having been abandoned as it was not raised either within fifteen (15) days of the notification of his status at the outset of his permanent employment or within fifteen (15) days of his termination. Counsel for the College acknowledges that the CoJ/ege's CoJ/ective Bargaining Act of 1999 was amended in 2008 to allow arbitrators the discretion to extend time limits. She submits that as that legislation came into effect on October 8, 2008, five days following the termination of Mr. Haskett, time limits and the discretion to extend time limits must be considered in light of the law as it stood as of the date of the grievor's termination, October 3,2008. Counsel for the College then makes an alternative argument, on the assumption that the preliminary objections might not succeed. In her submission article 14.5 does 15 not assist Mr. Haskett in the case at hand because his part-time employment as a technician did not involve work "sufficiently similar" to that of the Fanshawe Online Administrator's full-time position so as to allow credit towards his probationary period for that part-time service. On that basis, she submits that the grievor must be viewed as having been a probationary employee at the time of his termination on October 3, 2008. In addressing the question of sufficient similarity she submits that close regard must be had to the duties, responsibilities and qualifications of both positions. Addressing firstly the part-time position, she notes the evidence of Ms. Dame that the part-time job held by Mr. Haskett was in fact also performed by co-op students, although the decision was made to use a part-time employee because of schedule conflicts being experienced by students. Responsibilities, however, remained the same. She notes that the Fanshawe Online position required the completion of a college diploma, with a two-year diploma or the equivalent being required and a three-year diploma or degree being preferred. That, she argues, is substantially distinguishable from a part-time job previously assigned to co-op students with no diploma or degree. In her submission the part-time position is not properly characterized as being that of a "technician" but rather that of a "computer lab assistant". She expresses that much of the part-time job involved having primary responsibility for laboratory hardware, with tasks such as fixing printers and computers, moving and installing them as required and handling all related cables. There was, she stresses, no decision making authority in the job. From the standpoint of substance, she notes that the part-time employee 16 might load course content into computers, but rarely more than once per semester. She points to other relatively mechanical responsibilities such as checking student identifications for examinations, preparing cable kits and packing books into boxes. Most fundamentally, counsel for the College submits that the duties and responsibilities of the grievor in his part-time position at the help desk did not involve the creating of any learning systems, a responsibility which she characterizes as a key component of the Fanshawe Online full-time position. She notes that the part-time job did not require any involvement in meetings, whereas an important component of the full-time position in FOL required ongoing meetings and communications with stakeholders in the system, including deans, chairs of departments, faculty members and other staff. Counsel takes strong exception to the grievor's written summary of his part-time job responsibilities as extending to creating learning systems, pointing to the grievor's own admission in cross-examination that his duties did not extend to that level of responsibility. She maintains that there was no fundamental educational role in Mr. Haskett's part-time job, as contrasted with his responsibility to train and orient both students and faculty in his role as a Fanshawe Online Administrator. In her submission it is significant that in the full-time position it was the grievor's responsibility to answer the questions of faculty members as to what must be done to obtain the tools that they required for their courses. This, she submits, is not a matter of mere technical skill, but rather one of analysis, planning and ongoing strategic thinking, 17 a dimension which is substantially different from the part-time responsibilities of an employee who is essentially a computer lab assistant. Counsel for the College submits that self-starting is also an important distinction. She maintains that the evidence indicates that in his part-time role Mr. Haskett was directed by others as to what jobs he was to do, whereas in the FOL position he was much more self-directed, having ultimate responsibility for reviewing the inventory of existing hardware and software and working with faculty and other stakeholders to implement new learning systems and overall long term strategies. That work also involved creating websites, a responsibility which was not his in his part-time position. Counsel also points to the example of the clicker technology which involved choosing a new system, advising as to its acquisition and overseeing its implementation. Counsel notes that the difference in the responsibilities of the two jobs is well reflected in the pay scale for each. She notes that the part-time position held by Mr. Haskett was paid at $15.35 per hour, whereas his full-time responsibilities, which she characterizes as far more sophisticated and independent, ultimately merited $22.08 per hour. She also submits that the evidence of Dr. Sobel should be given no weight, regard being had to the fact that he has no firsthand knowledge of either the part-time job or the full-time position of Fanshawe Online Administrator. In summary, counsel for the College stresses that when the whole of the duties and responsibilities of the FOL position is examined there are substantial differences 18 between that job and the computer lab assistant or help desk position held on a part- time basis by Mr. Haskett. While both positions may have involved using some of the same basic technologies, that does not go to the ultimate relative responsibilities of the position. As she puts it, configuring computers and cables is not comparable to designing entire learning systems in conjunction with faculty members. The FOL position, she submits, plainly involved a substantially higher degree of analysis, communication and planning. On that basis she submits that this Board should conclude that the two positions were not sufficiently similar in nature for the purposes of article 14.5 of the collective agreement. In his reply argument the Union's representative disagrees with the issue of the interpretation of the amendment of the Colleges Collective Bargaining Act, 1999, mentioned above. While he agrees that the legislation which gives to boards of arbitration the discretion to extend time limits did come into effect on October 8, 2008, he stresses that the grievor's termination was still a grievable issue on a timely basis under the collective agreement, on October 9, 2008, the day following the introduction of the new legislation. In support of his submissions the Union's representative cites to the Board the following jurisprudence: Re: Ontario Council of Regents of Colleges of Applied Arts and Technology and Civil Service Assoc. of Ontario (Inc.) (1976), 13 L.A.C. (2d) 82 (Weatherill); Re: HickesonMLangs Supply Co. and Teamsters Union, Local 419 (1985), 19 L.A.C. (3d) 379 (Burkett); North York General Hospital and Service 19 Employees International Union, Local 204 (1989), 7 L.AC. (4th) 418 (Mitchnick); Fanshawe College of Applied Arts and Technology and Ontario Public Service Employees' Union, an unreported award of a board of arbitration chaired by Arbitrator AM. Kruger, dated February 27, 1991; Canada Post Corp. and C.U.P.W. (1992),29 L.AC. (4th) 7 (Burkett); Georgian College of Applied Arts and Technology and O.P.S.E.U. (1997), 59 L.AC. (4th) 129 (Schiff); Centre Universitaire de Sante McGill et Syndicat des employes Centre Hospitalier Thoracique de Montreal (Chams~- Eddine) (Re) (2003), 123 L.AC. (4th) 237 (Frumkin). Counsel for the College referred the Board to the following cases: Re Algonquin College and Ontario Public Service Employees' Union (1986), 22 L.AC. (3d) 129 (Brent); Ontario Public Service Employees' Union and St. Lawrence College of Applied Arts and Technology (Dailey Grievance), an unreported award of a board of arbitration chaired by Arbitrator R.O. MacDowell, dated June 26, 1995; Loyalist College of Arts and Technology and Ontario Public Service Employees' Union, an unreported award of a board of arbitration chaired by Arbitrator S. Schiff, dated August 1, 2001; Re Fanshawe College and Ontario Public Service Employees' Union, Local 110 (2002), 113 L.AC. (4th) 328 (Burkett); Sault College of Applied Arts and Technology and Ontario Public Service Employees Union, an unreported award of a board of arbitration chaired by Arbitrator L. Tenace, dated July 16, 2004. 20 We turn to consider the merits of the submissions of both parties. Before weighing them in detail it is useful to recall the narrow nature of the issue in these proceedings. The fundamental question to be answered is whether the grievor was or was not a probationary employee as of the date of his termination. It is clear that he did not achieve the status of a full-time regular employee unless he satisfied and completed the six (6) month probationary period. Central to that determination is the application of article 14.5 of the collective agreement. It is common ground that the time which the grievor served in his full-time position of Fanshawe Online Administrator did not, standing alone, complete his probationary period. The narrow issue, therefore, becomes whether he can have the assistance of article 14.5 to be credited for the time which he worked as a part-time computer lab assistant. As is evident from the submissions reviewed above, the question in that regard becomes whether his full-time position II... is either the same position or is sufficiently similar in nature", to his part-time job as a computer lab assistant. There is no compelling suggestion in the arguments before us that the FOL position is the same as or identical to the computer lab assistant's position, so the question then becomes whether the two positions are "sufficiently similar in nature". Because of the conclusion we draw with respect to that issue, we do not consider it necessary to rule on the two objections raised by the College, namely that the grievance is untimely because the status of the grievor as an alleged full-time regular employee was raised only one week before the arbitration and the second related objection, which is that the Union has sought to improperly expand the grounds of the 21 grievance which it initially filed. If, as will become evident, we are satisfied that the Union has not demonstrated that the part-time position held by Mr. Haskett is sufficiently similar in nature to the full-time FOL position, there is nothing further to consider as he would have been terminated as a probationary employee. The evidence before us confirms that in his part-time position as a computer lab assistant the grievor's duties involved the most basic tasks of a technician: transporting . and configuring groups of computers, preparing packets of cables, invigilating tests and troubleshooting basic hardware and software problems for students and faculty, largely on an on-call basis from the help desk which is overseen by another employee. There was, in the part-time position, no component of maintaining inventories, planning in relation to new computer teaching systems, whether from the standpoint of hardware or software, in consultation with faculty members or liaison with other technologists within the College's IT functions. In our view there is a qualitative difference of some significance with respect to the duties and responsibilities of the Fanshawe Online Administrator. Tasks such as creating and setting up web sites for faculty members, uploading data to those sites, updating student accounts and setting up online quizzes are responsibilities of an order which is entirely different from troubleshooting minor hardware and software problems in the labs. Nor do we consider that one can fairly diminish the importance of supporting professors in the Faculty of Health Sciences and Human Services by developing course learning materials and incorporating course learning materials into 22 Fanshawe Online. In our view, seventy percent (70%) or more of the content of the FOL Administrator's position involves tasks which are simply not performed by the part- time computer lab assistant. In approaching the issue in the case at hand it is paramount to bear in mind the purpose of the probationary period. It is intended to allow the employer a period of time in which to evaluate the individual who is newly hired into what will become a permanent positionf assessing the individual's performance and general suitability for the job. That assessment is not one which will need to be defended on the basis of lIjust . cause" in the event that the employer decides to terminate the probationary employee. What did the parties intend through article 14.5 of their collective agreement? In our view it must be concluded that they sought to balance the interests of the probationer with those of the College. If in fact an individual has logged a substantial period of time in a part-time position which is identical to the full-time position which they assume on a probationary basis, it is only fair to credit the earlier part-time service towards the completion of the probationary period. It is also deemed to be fair to do so where the two jobs are "sufficiently similar in nature". In either case, the employer has had a reasonable opportunity to assess the individual in his or her handling of the duties and responsibilities of the probationary position, whether it be in the full-time job or in the earlier part-time job. The question, therefore, becomes whether in fact the two positions in which the individual has served are truly sufficiently similar in nature so as to say that performance in one is evidence of successful performance in the other. 23 Can it be said that the successful performance of work in the computer lab assistant's position is sufficiently similar to successful performance of the duties of the Fanshawe Online Administrator? We think not. If an analogy can be fashioned, consider the example of an employee who works part-time cutting grass, tending gardens and clearing snow on College premises. If that person is then hired full-time to oversee the purchase and maintenance of lawn mowers and snow removal equipment, tracks the warranties of such equipment and also schedules and oversees periodic repairs and overhauls of the equipment, how can that individual's earlier part-time job as a grass cutter and snow remover be said to be "sufficiently similar in nature" to the full- time job which is entirely dedicated to the purchase and maintenance of gardening and snow removal equipment? In our view there could not be said to be a sufficient similarity in nature as between the two jobs. The full-time position is one of administrative and planning responsibility, albeit it may include some close involvement with the same machinery and equipment that the individual may have used as a part- time employee assigned to cutting grass and snow removal. Performance as a grass cutter gives no guidance to evaluate an individual's adequacy as an equipment manager. We think the foregoing analogy is apt as regards the two positions being compared in the case at hand. The Fanshawe Online Administrator is fully responsible for fundamental aspects of communicating, planning and coordinating the acquisition, building and ongoing maintenance of computerized teaching tools, whether in the form 24 of hardware or software, in a manner which was no part of the duties and responsibilities of the position of part-time computer lab assistant which the grievor held before assuming his full-time responsibilities. To restate the question, perhaps in a slightly different way! uCan it be said that the College could conclude from the work performed as a computer lab assistant by Mr. Haskett that he would be able to satisfactorily accomplish the higher and more complex planning and administrative responsibilities of the Fanshawe Online Administrator?'!. In our view, the College plainly could not draw any conclusions from the grievor!s part-time work assisting students and faculty in computer labs, packing boxes and handling cable kits or physically configuring computers within a laboratory as a means of assessing the most important aspects of the responsibilities of the F anshawe Online Administrator. There is, in our view, simply little or no meaningful basis upon which the College could determine from the grievor,s part-time service as a computer lab assistant whether he could work closely and creatively with faculty members to fashion and maintain course web sites or become involved on a consultative basis in the development of course learning materials or their incorporation into course management tools. To give a specific example, there is little or nothing in the grievor's experience as a part-time computer lab assistant to indicate to the College whether he would be able to oversee the timely acquisition and installation of the electronic uclicker" technology which, in fact, was not ultimately installed in time. There is nothing in the grievor's performance as a part-time computer lab assistant to indicate to the College what value he would bring to the entirely different function of consulting with faculty members to gain an 25 understanding of their teaching needs so as to suggest to them how to develop new computerized learning materials. While that contribution might not be of a high order when it involves service to a computer sophisticated faculty member, it would be critical for faculty members who are less sophisticated in computer hardware and software systems. In a certain sense part of the Fanshawe Online Administrator's responsibilities is to be the eyes and ears of faculty members for the purposes of identifying and suggesting critical elements such as web site designs and computerized course learning materials. The skills of communication, planning and strategy development which are at the heart of the FOL Administrator position are simply not predicable from the day-to-day job performance of a basic part-time computer lab assistant. The fact that the grievor's part-time job and his full-time job both involved computers falls well short of demonstrating that the two jobs are sufficiently similar in nature for the purposes of article 14.5. Indeed, for the reasons related above, we are satisfied that they were not sufficiently similar in nature to allow the College to use the grievor's computer lab assistant work to evaluate whether he should be confirmed beyond his probationary period in the full-time position of Fanshawe Online Administrator. While administration and planning are core responsibilities of the FOL administrator's job, administration and planning formed virtually no part of the grievor's duties and responsibilities as a part-time computer lab assistant. The two jobs are not sufficiently similar to have allowed the College to judge Mr. Haskett as an administrator and 26 planner, or as a communicator, based on his work as a part-time computer lab assistant. For all of the foregoing reasons we are compelled to the conclusion that grievor's probationary period is to be calculated entirely on the basis his performance in the full- time Fanshawe Online Administrator's position and that article 14.5 has no application in the case at hand with respect to crediting part-time service towards his probationary period. The College is correct in its position that the grievor was terminated as a probationary employee. For all of the foregoing reasons, we do not deem it necessary to rule on the preliminary objections as to the timeliness of the Union's attempt to characterize the grievance as involving the just cause standard which applies to a permanent employee, nor to deal with the parallel objection that there has been an expansion of the grievance. The grievance is to be heard and determined on the basis that Mr. Haskett was a probationary employee at the time of his discharge. It is on those terms that the matter is remitted to the parties for a continuation of the hearing, if necessary. 27 Dated at Ottawa this 15th day of March, 2010. Michel G. Picher Chair UMartha Young" Martha Young College Nominee 28 DISSENT With respect, I dissent from the majority decision. The grievor was terminated in the late hours of the last day of a six-month probationary period. What is at issue here, is whether the work performed by the grievor in a part time capacity was "sufficiently similar in nature" to the work he was required to do in a full time position. Few Boards of Arbitration can confess to being experts in computer technology, so we have to depend heavily on the testimony of those who hopefully do have the workplace expertise, to help us determine this issue. If established, that the work was sufficiently similar, that then triggers in the application of Article 14.5 that requires under certain conditions, that part time service shall be credited towards the completion of the 6-month probationary period. On the one hand, we had a Union witness, Dr. Sobel, who is a computer support specialist with the College, who testified that he had trained the grievor from the time he was a student. He further testified, that the full and the part time positions were somewhat the same and that he had himself, performed the full time on-line job. Dr. Sobel answered the questions put to him by both the Union and by the Employer's counsel, without hesitation, in a confident, forthright manner, that in my opinion, left no doubt as to his expertise in computer technology and to his knowledge of the comparability of both positions. 29 On the other hand, we had the College witness, Dean Skinner, to whom the grievor reported to in the full time position, who admitted that she did not know what the grievor's part time job was, except as to what he gave in evidence. She also admitted that, "technology was not in my area". It seemed that this witness, unlike Dr. Soble, had problems in answering questions under cross-examination, in that there usually was a long delay in answering. It was this panel member's opinion, that Dr. Sobel was a far more impressive witness and that the majority, should have given more weight to his evidence, than to that of the College witness. Accordingly, I would have found, that the two positions were SUfficiently similar in nature and that the grievor had completed his probationary period prior to his discharge and was entitled to the substantive rights available to full time employees under the collective agreement. Ron Davidson. Union Nominee 30