HomeMy WebLinkAboutQuinlin 22-11-01
IN THE MATTER OF AN ARBITRATION
UNDER THE COLLECTIVE AGREEMENT
AND THE ONTARIO LABOUR RELATIONS ACT
BETWEEN:
LAMBTON COLLEGE
(“the Employer”)
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(“the Union”)
GRIEVANCE OF KRISTIN QUINLIN
OPSEU No. 2019-0125-0016
AWARD
Arbitrator: Barry Stephens
Union Counsel: Simran Prihar, Goldblatt Partners
Employer Counsel: Lisa M. Meyer, Hicks Morley Hamilton Stewart Storie
Heard By Video Conference on October 21, 2020,
February 9, June 10, September 23, November 9, 2021,
March 22, April 5 and 27, 2022.
Decision Issued: November 1, 2022
AWARD
Introduction
[1] The grievor is employed in the Hair Styling program at Lambton College and at the
time of the hearing she had been working in the program for more than six years. She
filed a grievance claiming that she was eligible for “roll over” to permanent full-time
status under Appendix V of the collective agreement. Appendix V stipulates that a
sessional Professor may be eligible for “roll-over” to full-time status if they are assigned
to teach full-time for 12 months in a 24-month period.
[2] The Hair Styling program is a small program, enrolling normally less than 30
students each year. There is one full-time Professor and three partial load and part-time
faculty. As a designated “trades program” it is subject to specific provincial government
guidelines, requiring 990 hours of practice and 510 hours of theory.
[3] During her time with the College, the grievor has worked as both a part-time and
partial load Professor, and has also been employed as a Technologist, a classification
under the Support Staff collective agreement. At various times she was employed as a
Professor and as the Technologist, often for the same course. The grievor asserted that
some of the lab hours she was assigned to as a Technologist should have counted as
teaching hours, that the additional hours would have put her into the category of a
“sessional” Professor, and that she worked in that capacity sufficient time to qualify for
the right to “roll over.”
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[4] In essence, the grievance argued that the division of the grievor’s hours between
Professor and Technologist assignments was artificially distributed to save the College
money and to prevent the grievor from attaining full-time status but did not reflect the
actual assigned teaching work. The employer’s position was that the grievor, although an
excellent and valued member of the College staff, did not qualify for a roll-over under
Appendix V because she was assigned 12 or less Teaching Contact Hours (TCHs) per week
and did not qualify as a Sessional Professor under the collective agreement. She was
neither directed nor authorized to teach beyond her assigned Professor hours.
Evidence
[5] The grievor is a hair stylist who owned and operated her own salon prior to
teaching. She began working for the College in 2015. The Hair Styling program is
structured in compliance with Ontario government guidelines and provides 1500 hours of
instruction and practical training that qualifies a successful student to begin an
apprenticeship in a salon.
[6] The grievor described the contracts she has worked under during her time at
Lambton College, which included both Professor and Technologist assignments. She
provided a chart that she stated set out the hours she was assigned as a Technologist that
she believed should have been treated as the teaching contact hours of a Professor. It
was common for her to be assigned as the Professor and as the Technologist for the same
course. She testified she was assigned as Technologist for other Professors in some
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courses, particularly Salon, Haircutting and Permanent Waving. The Professor typically
does not remain in the room throughout the entire ‘lab’ time because a Technologist is
normally assigned to oversee labs.
[7] The ‘Salon’ course was an exception to this general rule. The grievor testified that
in the Salon course students participate in the operation of a hair styling salon open to
the College community. The grievor shared the teaching and Technologist duties with
another Professor. They “took turns” acting in both positions, and both remained in the
Salon throughout each four-hour session. She stated it was her experience that the duties
of each position were the same. The grievor was paid four hours at the Technologist’s
rate when she was assigned in the Salon as the Technologist. She asserted she should
have been paid for teaching hours during the entire four hours in the ‘Salon’ when she
was assigned as a Professor. In addition to the demands of the Salon session, the class
typically went over the four-hour period because clients arrived early or could not be
allowed to leave at the end of the class due to the timing of the chemical processes.
[8] The grievor testified that during a meeting in 2019 the employer provided staff
assigned to the Hair Styling program with a document, entitled “Summary of Role
Differentiation”, purporting to outline the differences between the roles of Professors
Technologists and Technicians. She asserted the document was not useful because it was
too general and contained references that did not apply to her program. When asked in
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examination in chief whether she had ever engaged in the duties of a Professor when
acting as a Technologist for someone else, she stated that, aside from occasional grading
of practical work sheets, she did not become involved in formal evaluation because the
professor was the one who was “ultimately responsible” for the course.
[9] The grievor provided considerable evidence about the difficulties associated with
lab sessions in courses that involved the use of chemicals, such as ‘Hair Colour and
Lightening’, and ‘Chemical Relaxing.’ In those labs, she asserted she was not credited
sufficient time to teach the steps required for the courses because the setup of the lab
limited the number of students who could safely observe her, so she was required to
demonstrate to small groups of students in 20-minute intervals. Thus, while she was
credited two hours of teaching and four hours as a Technologist for the Hair Colour
course, she asserted the actual requirement of the course was four hours of teaching and
two hours as a Technologist. Similarly, she testified that Chemical Relaxing was quite
complex and involved multiple lengthy steps that could not be taught within the time
allotted. She stated that she should have been credited more hours as a Professor for the
course, and that Technologist time should have been restricted to the setting up of the
lab at the beginning and then the cleanup at the end. The grievor asserted that the
employer mistakenly drew a line between the theory taught in the classroom and the
activities in the labs because not all the lab work involved the practice of theory learned
in class. In addition to theory, she testified, she was required to teach students the
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practical skills necessary to perform various hair styling techniques, such as colouring or
chemical relaxing.
[10] Under cross-examination the grievor confirmed that her work assignments had
not changed significantly since she was first hired by the College and she agreed that all
other professors, aside from the sole full-time professor, also worked as Technologists.
She stated that when she worked as a Technologist for another Professor, it was the
Professor’s responsibility to organize and assign her work tasks.
[11] The grievor agreed that the division between theory and practical application was
derived from the provincial government requirements for the course. These guidelines
were for the overall course content and were not implemented, or “signed off”, with
respect to each individual student. The grievor reiterated the difficulty with the courses
involving use of chemicals and asserted that she was required to stagger the
demonstration of such techniques so that small groups of students could properly
observe her, and have access to the limited number of wash stations to practice and be
observed. The grievor agreed that she had not discussed with the employer all the details
of the distribution of hours between her two positions, stating that when the subject was
raised at staff meetings, “…it was not a smooth conversation.”
[12] Stefanie Metcalfe is the coordinator of the hair styling program and the only full-
time Professor in the program. She was not assigned any Technologist hours in her work
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for the College. She stated the program was a two-year diploma but delivered in a one-
year “fast track” during which a student completed the 1500-hour requirement.
[13] Metcalfe testified about the employer’s “Differentiation” document, repeating
the grievor’s criticism that some of the factors mentioned in the document did not apply
to Hair Styling, such as the reference to “experiments.” She also observed Technicians
figured prominently in the document but were not used in Hair Styling. Metcalfe asserted
that a key difference between the positions, and an important issue between the parties,
was that Professors were responsible for demonstrating new techniques to students,
although a Technologist might “quickly demonstrate” the same technique to students
later. She testified that, at times, Technologists were known to teach a technique to a
student who missed the Professor’s instruction because otherwise the student would fall
behind, even though the program manager had directed that Technologists were to refer
such students to the Professor. Metcalfe testified she was not able to say exactly what
the Technologists did after she left the classroom. She testified that she often stayed in
the lab after her teaching time had ended and after the Technologist has arrived. She
says she had done this because she felt it was not fair to leave at a point when she had
not covered a new area or technique.
[14] Metcalfe testified that in Salon there were problems associated with completing
procedures prior to the scheduled end of the class. She stated this often resulted in
missing the meal break and working beyond the class time. She testified that, although
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Salon was largely viewed as a practice opportunity, the reality was that many new
techniques are taught for the first time during Salon. This was an example of how the
employer failed to distinguish between the teaching of practical skills and the practice of
such skills. She stated the Technologist assists with grading of students in her classes.
[15] Metcalfe stated the staff and management had developed a plan to engage in a
year-long study of the program in order to document any issues. Unfortunately, this plan
had been interrupted by the pandemic.
[16] Under cross-examination Metcalfe testified that she had participated in the
redesign of the Hair Styling Program in 2017 but did not have final authority, and she had
advocated unsuccessfully for more teaching hours.
[17] Silvana MacDonald is the Dean responsible for the Hair Styling Program. She
stated that she was not a subject matter expert in Hair Styling. She testified that the
Ministry set standards for numbers of hours of theoretical and practical instruction that
were used to set the parameters of the College’s program. She confirmed that the
program was designed to allow students to complete the required hours within an
accelerated time frame.
[18] MacDonald testified about the differences between Technicians, Technologists
and Professors. She stated the Technicians were not as “involved” in the teaching process
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and were often required to perform support roles such as managing inventory of
materials, preparing equipment for labs, and other tasks that did not entail direct
involvement with students. Technologists, however, were required to interact with and
provide a wide variety of assistance and support to Professors and to students. She stated
that Professors provided course oversight, including teaching course deliverables,
keeping materials up-to-date and mentoring students. She stated that the introduction
of the Technologists was one of the first changes she made to the Hair Styling program
because she believed the Professors required the higher level of support that is available
from Technologists.
[19] MacDonald testified that most of the teaching staff work as both Technologists
and Professors. She stated that concerns were brought to her attention about the lack of
sufficient teaching hours in the program and she convened a meeting in December 2019
to discuss the issue. She used the “Differentiation” document at the meeting as a means
of emphasizing the differences between the two roles with all staff, although she agreed
that the document was prepared for general use in all programs. The differences
between the two roles had not been thoroughly discussed prior to the meeting and it was
her view that the staff were generally confused. She asked staff to sign the
“Differentiation” document in order to indicate they understood the contents, but they
all declined to do so. Shortly after the meeting the current grievance was filed.
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[20] MacDonald agreed that it was difficult for one person to perform both roles and
that it was also confusing for students. She testified that she advanced an initiative to
hire additional Technologists so that it would not be necessary for Professors to take on
both roles but, she stated, this idea “met resistance” from the teaching staff in the
program and it was dropped. She stated that she was open to increasing teaching hours
where there was a demonstrated need and that she felt that she had been able to
accommodate all such requests that had been brought to her attention. She testified that
the issue of being required to teach chemical procedures in staggered groups had not
been brought to her attention prior to the arbitration hearing. Significantly, she stated
she was not aware of Professors experiencing difficulties meeting teaching goals in those
courses where the Technologist role was performed by someone else. She also stated
she was not aware of Technologists performing Professor duties. She testified that she
was not aware that the grievor had been working Professor hours beyond those for which
she had been contracted and stated any such additional hours had not been approved.
MacDonald did not take issue with the fact that teaching included both theory and the
demonstration of practical skills. She added that she was somewhat dependent on the
Professors to advise her as to how much time was required for such practical
demonstrations.
[21] In cross-examination MacDonald conceded the evidence from the faculty was
likely the best evidence as to what was going on in the classroom and she had no reason
to challenge the accuracy of what the grievor had said about the division between
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teaching time and Technologist time. She stated, however, that during the meeting held
to discuss the “Differentiation” document she directed teaching staff to not engage in
teaching while performing the role of the Technologist.
Union Submissions
[22] The union asserted that the facts demonstrated that the employer had artificially
exploited the Technology classification as a means of avoiding the expansion of the
grievor’s teaching hours, thus preventing the triggering of her rights to full-time status
under the collective agreement. One clear principle to be gleaned from the jurisprudence
was that the employer could not artificially determine the status of an employee merely
by assigning labels to their work, and that the actual work performed is what governs.
There was no question on the evidence that the grievor was exceeding the assigned
teaching contact hours during lab assignments that were paid as Technologist time. This
fundamental fact, central to the grievor’s evidence, was confirmed by Metcalfe and not
contradicted by the employer’s evidence. In fact, MacDonald conceded that she was not
a subject matter expert, and that she relied on staff to advise her on issues of the
appropriate division of hours. The facts demonstrated, therefore, that the grievor had
been working for some time in a full-time sessional capacity, which qualified her to
“rollover” to permanent status under Appendix V.
[23] The union asserted that the issue of the lack of sufficient teaching hours had been
raised multiple times and the employer had been given ample opportunity to respond.
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There were very real pressures on the grievor to deliver the content mandated by the
Ministry guidelines, particularly in the context of the accelerated program offered at
Lambton, but sufficient teaching hours were not provided.
[24] One of the employer’s basic errors was to equate “practical” learning with
“practice.” The employer appeared to operate under the mistaken assumption that
Professors were responsible for teaching theory only, and Technologists could be utilized
to oversee all lab time during which students would practice the theory they had learned.
This approach ignored the fact that, in addition to theory, Professors were responsible for
teaching specific hair styling skills, skills that could only be taught by demonstration. This
was not a task that could or should have been performed by Technologists.
[25] The union took issue with MacDonald’s assertion that she typically responded
positively when faculty raised issues about the shortage of teaching hours. She did not
take any action when the issue was raised by the grievor in 2019 obviously because had
she done so the grievor’s status would have necessarily shifted to full-time sessional, and
she would have become eligible for rollover to permanent status. In effect, the grievor’s
concerns could not be addressed because the employer had deemed that it would not be
financially feasible to do so. On the other hand, there was no flexibility on the Ministry
course requirements, or the pressures associated with the accelerated program. The
grievor was caught in the middle. It was not fair, given her lack of job security, to expect
that she should have to continuously push the issue in order to force action by the
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employer. The union distinguished the instant case from some of those in the
jurisprudence, arguing that there was no question that the grievor’s teaching time was
continuous, and carried on without pause from her designated teaching hours into the
following lab time because the requirements of the course could not be delivered within
the allotted teaching time. Indeed, the pressure had the same effect on Metcalfe who
testified that she often stayed on during at least part of the lab time in order to complete
an important area of instruction. While it is true that the employer did not formally
approve the additional teaching hours, the additional hours were required otherwise the
course content could not be fully delivered. The employer was aware of the imbalance
but was content to allow the situation to continue in order to gain the benefit of the
reduced costs.
[26] The union relied on the fact that Metcalfe had been told during a 2017 re-write of
the program that additional teaching hours would threaten the financial viability of the
program. The parties also had discussed engaging in a year-long audit of the program to
determine if there were problems that needed to be addressed but the employer did not
follow through. Given the evidence, the union asserted there was no question that the
grievor had completed more than sufficient teaching hours in order to be considered as
having been employed as a full time, sessional Professor, and that she worked sufficient
time in that status to qualify for rollover under Appendix V. She should be declared to be
full time in accordance with the collective agreement, and in addition be declared as
having successfully passed her probationary period.
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[27] The union relied on the following authorities: St. Lawrence College, [2018] CanLII
26586 (Parmar); Algonquin College, [Unreported, Jesin, 8 December 2016]; Sheridan
College, [Unreported, Schiff, 6 November 1996]; Algonquin College, [2021] CanLII 24
(Jesin); Algonquin College, [2018] CanLii 68686 (Knopf).
Employer Submissions
[28] The employer prefaced its submissions by noting that the grievance concerned a
technical application of the collective agreement to the grievor’s circumstances. The
difference between the parties did not detract from the fact that the grievor was a highly
valued member of the Hair Styling faculty. The grievance, however, was grounded on the
grievor’s unilateral decisions to engage in teaching during time when she was contracted
to provide Technologist support. The employer asserted that facts did not show sufficient
assigned teaching time to alter the grievor’s status. In addition, the jurisprudence did not
support the grievor’s case.
[29] The grievor’s assignments were divided between Professor and Technologist
hours. Generally, she was assigned to teach theory in class and practical skills in labs and
then, as a Technologist, oversee “learning by doing” during the remaining lab time. It was
clear that the employer had not in fact prevented the grievor from teaching practical
skills, as the union alleged. Rather, the employer had allocated appropriate Professor
hours to lab time for this very purpose, with the remainder of the lab time designated as
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practice hours, which could be properly monitored by a Technologist. The employer
asserted that the general division of duties was that the Professor was to teach new
material, while the Technologist was to assist and support students in applying that
knowledge. Over the years the Hair Styling program featured courses that had different
people acting in both the Professor and Technologist role. This division of responsibility
was effective, and the union had not grieved otherwise.
[30] The employer submitted that there was no evidence to support the union’s
allegation that the grievor’s assignments had been deliberately misclassified for the
purposes of forcing the grievor to provide teaching services while being paid as a
Technologist. On the contrary, considerable effort was made to define the two roles, to
direct staff to ensure they did not blur the lines, and to respond to faculty issues, when
properly raised, with respect to the number of teaching hours required. The employer
had even gone so far as to suggest that additional Technologists should be hired to ensure
that no one would have to act as Professor and Technologist for the same course, but the
faculty had opposed that initiative. The fact remained that the government requirements
for the program included targets for practical learning, and the labs were designed to
fulfill that need. The time required for the practice of theory and learned skills was
properly assigned to Technologists. The evidence demonstrated that this division of roles
functioned properly in those courses where the Professor and the Technologist were two
different people. The grievor confirmed that, when she worked as a Technologist for
another person, she did not take on teaching responsibilities.
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[31] The employer submitted there was a legitimate overlap between the two
classifications, in that Technologists could be called upon to review concepts or skills
already delivered by the Professor in the process of assisting in the practice of hands-on
skills. The union witnesses described aspects of the “Differentiation” documents as being
too general or not directly applicable to Hair Styling. There was no issue that the
document was intended for use across the college, but minor criticisms aside, it was not
argued that the document was incorrect or that it failed to capture the general essence
of the Technologist’s role. The document illustrated that the Technologist’s duties reflect
a high degree of hands-on engagement with course material and with students, to an
extent that can be readily distinguished from the duties of a Technician. However, much
of the union’s evidence appeared to be based on the mistaken view that a Technologist
was restricted to the same role as a Technician despite a significant difference in
compensation. As an example, the employer pointed out that the grievor included in her
teaching time the time she spent circulating through labs answering questions and
correcting students in the practical application of what had been learned. The employer
argued that this duty was one properly assigned to a Technologist. The employer argued
that it was not student perception that determined the nature of an assignment, but the
differences between the roles assigned by the College. An individual could not be
considered as engaged in teaching activity merely by interacting with students but only
when they are imparting new knowledge or skills.
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[32] The grievor’s evidence was heavily focused on her assertion that she was required
to spend extra time teaching due to the fact that she had to stagger instruction for lab
demonstrations involving chemicals. The employer took issue with the fact that this issue
was not raised with MacDonald. Moreover, not all courses or labs involved the use of
chemicals, and even in those labs that did, there were many non-chemical steps. In
addition, even if staggered teaching was required, the majority of lab time was taken up
with observing and assisting student practice, which was a legitimate role for a
Technologist. Finally, the staggered teaching was not an identified problem for those
Professors who worked with a Technologist.
[33] The union’s witnesses stated that they sometimes carried on with their teaching
into the designated Technologist time. This was not the Professor’s assignment, and in
doing so they was acting outside the specific instructions they had been given. It was not
what the employer requested or expected. Indeed, the opposite was the case – the
employer’s expectation was that the faculty would not use designated practice time for
teaching. The grievor appeared to understand this distinction when she acted as a
Technologist for someone else. The employer communicated to the grievor that she was
expected to adopt the same limited role when acting as Technologist in her own courses.
Simply put, she had not been hired to act as a Professor during the hours she had been
contracted to work as a Technologist. Ultimately, there was no evidence to suggest the
grievor was expected or requested or in any other way required by the employer to teach
at any time beyond her contracted teaching hours.
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[34] The employer pointed out that the grievor had unilaterally determined the nature
and extent of the encroachment of teaching duties on her designated Technologist hours.
She did not have the authority to alter her work in this manner and her actions were not
in harmony with her assignment or the employer’s directions. The employer added that
it accepted that the grievor had acted as she did because she was a dedicated Professor,
and not to artificially inflate her teaching hours. But that did not alter the fact that the
employer had provided proper work assignments in a manner consistent with the needs
of the program and the limits of the collective agreement. The employer had not
knowingly assigned the grievor ‘Professor duties’ under the guise of Technologist hours
and pay. There was no evidence the employer attempted to manipulate the two
assignments to its benefit, let alone evidence it did so with the intent of denying the
grievor a rollover to a full-time position.
[35] The employer relied on the following authorities: College Employer Council v.
OPSEU, [2019] CarswellOnt 14218 (OLRB); Seneca College (Rodrigues), [2019] CarswellOnt
19609 (Knopf); Algonquin College (Doyle), [2021] CarswellOnt 1 (Jesin); Algonquin College,
[2015] CarswellOnt 10140 (Knopf); Algonquin College (McGinn), [2018] CarswellOnt
12293 (Knopf).
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Conclusions and Decision
[36] The employer left no doubt that the grievor is valued as an excellent Professor and
faculty member, one who is dedicated to her students and to her profession and who
makes a major contribution to the Hair Styling program. Unfortunately, the dispute must
be resolved on the basis of an application of the facts to the collective agreement, not on
the basis of the grievor’s professional qualities.
[37] The union’s argument in this case was that the grievor was required to engage in
teaching duties during times when she was paid as a Technologist. I understood the
union’s case to offer two different approaches. First, the union submitted the evidence
showed the grievor had performed teaching work during designated Technologist hours.
She had done so because, in her professional judgment, there were insufficient teaching
hours assigned to cover the delivery of the material required by the courses for which she
was responsible, and accordingly she should be credited for all such teaching hours. The
union’s second approach was that the grievor’s assignment was artificially and
deliberately mis-categorized by the employer to save money and prevent the grievor from
achieving permanent status. The union alleged the employer knew that the grievor could
not teach her assigned courses during the designated teaching hours, and that she would
be required to perform teaching during a time when she was paid as a Technologist.
[38] As a general proposition, an employer cannot escape its obligations under the
collective agreement by artificially applying a label to an employee that does not
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correspond to the employee’s assignment. As Arbitrator Parmar put it in St. Lawrence,
the administrative label applied by the employer cannot determine the status of the work
performed. However, this is not the same as saying that the work performed determines
an employee’s status or that the individual employee has the right exercise her own
judgment as to what work is required. Leaving aside the issue of deliberate employer
manipulation, the employer can only be culpable for misidentifying an assignment if the
work performed was consistent with the work assigned and expected of the employee.
Management has the right to plan the work in order to avoid additional costs, and I agree
with employer counsel that the grievor did not have the unilateral right to exercise
professional judgment to change her hours and amend her work assignment.
[39] Looking at the union’s second approach, I accept there could be a breach of the
collective agreement where the facts demonstrate that the employer knew that the
grievor’s assignment was such that she could not have adhered to the division of hours
set out in her dual role, and that she would be required to work as a Professor while being
paid as a Technologist. Such a case requires evidence that would lead me to conclude, on
the balance of probabilities, that the employer knowingly manipulated the grievor’s
assignments in order to gain an improper cost savings and to avoid the triggering of the
grievor’s Article V rights. This is, obviously, a difficult case to meet given that it requires
evidence of bad faith i.e., that the employer intended to impose a dishonest work
assignment. The grievance cannot be sustained if the employer had a reasonable
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explanation for the assignment that was at least as likely as the allegation of bad faith
that is implicit in the grievance.
[40] It should be noted that the jurisprudence largely stipulates that the employment
status of an employee under this collective agreement is defined by the assignment of
Teaching Contact Hours (TCH). The jurisprudence holds, for example, that even the
performance of the same task may not have the same impact on status depending on
whether it is performed as part of a TCH or not, as is reflected in the careful analysis and
findings in Seneca 2019 (Knopf), and College Employer Council (Wilson.) It is not
necessary for me to delve into the details of the cases addressing the TCH issue but suffice
it to say that an arbitrator should move cautiously with respect to issues of employment
status that are asserted on the basis of non-Teaching Contact Hours.
[41] That being said, there are at least two distinguishing aspects of this case that set
it apart from the other cases cited before me. First, the parties were not arguing about
whether duties were “Professor” duties. The union’s case here was based on the
assertion that the grievor was required to deliver new course content during designated
“Technologist” hours. There was no dispute between the parties that Technologists
should not be delivering new course content. Secondly, this appears to be the only case,
at least that I am aware of, in which the union alleged the employer engaged in fraudulent
and deliberate manipulation of the grievor’s assignment in order to improperly avoid
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higher costs associated with the Professor salary and, eventually, the grievor’s ongoing
permanent rollover under Appendix V.
[42] I have concluded that the evidence does not support the allegation the employer
deliberately manipulated the grievor’s assignment, for the following reasons. First, there
seemed to be no conflict between the parties for those courses in the Hair Styling program
where the Professor and Technologist were two different people. Metcalfe testified that
she sometimes continued to teach during Lab hours that were assigned to a Technologist.
Metcalfe also testified that, normally, she was not present in the Labs when the
Technologist took over. I note that the extent of the occasional overlaps was not
sufficient to lead to an individual grievance on Metcalfe’s behalf. Similarly, there was no
objection raised in the grievance before me with respect to the grievor’s hours when she
acted as Technologist for someone else. From this it is reasonable to conclude that it was
understood between the parties that teaching and technologist hours could be properly
apportioned when two faculty members filled the two positions.
[43] Second, there was no evidence that the union had ever articulated an objection
to the use of one person in both roles with respect to the same course, either prior to or
during this hearing. The dual role is not unique to the grievor, even in the Hair Styling
program, and it is a practice that has been used at other colleges, as is evident from the
jurisprudence. Therefore, the employer had a reasonable basis upon which to believe that
there was no impediment to dual-role assignments and no obvious reason why one
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person could not properly fill both roles in the same manner as two persons could. In this
regard, I note that when MacDonald raised the possibility of recruiting additional
Technologists in order to avoid the need for dual assignments, the idea was opposed by
the faculty in the program.
[44] When the dispute is viewed in light of these general considerations, it appears the
employer acted reasonably and there was nothing inherently untoward in the grievor’s
dual assignment. On the basis of the practice between the parties, the employer had a
reasonable basis upon which to assign the grievor to both roles with the expectation that
both could be completed in the hours allocated.
[45] I am not persuaded, moreover, that the details of the individual Hair Styling
courses supported the allegation of bad faith or deliberate manipulation. The main point
of the union’s evidence was to demonstrate that the grievor was assigned to deliver new
course content, including theory and practical skills, during the time she was paid to work
as a Technologist. The parties did not agree on job descriptions for the two positions, but
they did agree on the key distinction that the Technologist could not be assigned to
deliver new course material. The employer does not monitor every class and lab to
ensure the division of time follows the assignment. For the grievance to succeed,
therefore, the facts must demonstrate that the employer was aware when the
assignment was created that the grievor would not be able to divide her time properly
between the two different roles but made the assignment regardless.
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[46] There were known pressures on all faculty in the program, and issues were raised
with management. However, I do not accept the union’s submission that the evidence
shows the employer ignored issues of the distribution of hours or was unresponsive to
faculty concerns when they were raised. MacDonald testified that she added teaching
hours when specific issues were brought to her attention and that she believed she had
addressed every issue as it came up. Metcalfe confirmed that adjustments were made in
some courses by management, but she believed they were insufficient. Even though the
union may not have found the employer’s responses to be adequate, it cannot be said
that management ignored the issues and failed to respond. Moreover, if management
had been deliberately manipulating assignments, it seems unlikely any adjustments
would have been made no matter how compelling the case. As mentioned above,
MacDonald pursued an initiative to hire more Technologists so that the roles could be
kept separate, but this was opposed by faculty in the program, so she dropped the idea.
In addition, MacDonald held a special meeting with staff just prior to the grievance, in an
unsuccessful attempt to reach an understanding about the distinct roles of the two
positions.
[47] The evidence of the difficulties associated with the teaching of specific courses is
not such as to lead to a clear conclusion of employer bad faith. The teaching of chemical
application skills was one of the key points relied upon by the union about problems that
contributed to the skewing of teaching hours. Yet, MacDonald testified that she had not
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been made aware of the problem prior to the arbitration hearing. A lack of awareness of
a major point of evidence undermines the assertion that the employer deliberately
manipulated such teaching pressures in order to gain improper advantage. Similarly, the
union asserted that the employer failed to distinguish between the delivery of new
“practical” skills versus “practicing” in the labs, in essence equating all lab hours with the
“practice” hours required by the government guidelines. However, most, although not
all, lab sessions included a component of Professor hours. While, again, the two sides
might not have agreed on the number of lab hours attributed to teaching, it cannot be
said that the employer viewed all non-lecture time as practice within and solely the
domain of the Technologists. The designation of Teaching Contact Hours during lab times
stands as an acknowledgement that the demonstration of new practical skills is a
recognized task for the course Professor, not the Technologist.
[48] In my view, the evidence with respect to the employer’s response to concerns
raised by faculty as well as the evidence about the apportioning of class time did not
support the conclusion that the employer had been improperly engaged in the
manipulation of the grievor’s assigned hours. On the contrary, the evidence leads me to
conclude that management was making a reasonable attempt to balance the practical
needs of the program and to at least attempt to respond to concerns raised by faculty.
[49] Some of the other specific issues featured in the union’s evidence were, in my
view, unrelated to the employer’s assignment decisions. In the Salon class, for example,
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the lack of breaks or overstaying class time struck me as more directly the result of the
management of the number of customers, appointment times, and cutoff times for
specific procedures, which were not being managed by the employer but were within the
responsibility of the Professor and Technologist handling the class.
[50] The Salon class also provided a good example related to the issue of the
employer’s intention and reasonable expectations when setting the grievor’s assignment.
Salon seemed ideally structured for a heavy emphasis on the practicing of skills and the
application of theoretical information already delivered in the program. While teaching
time is factored into the Salon course, it strikes me as reasonable for the employer to
expect that there would be considerable scope for the scheduling of a Technologist to
assist students in practice during Salon hours.
[51] I have concluded, for the reasons set out above, that the evidence does not
support the allegation that the employer exercised bad faith by assigning the grievor
teaching work while paying her as a Technologist, or that the grievor was improperly
denied teaching hour credits that would have impacted her Appendix V rights and her
status under the collective agreement.
[52] I would not want this decision to interfere with future communication between
faculty and management about the Hair Styling program. My decision is not that there
are no problems with the Program, only that the evidence does not demonstrate the
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employer assigned the grievor’s hours in a bad faith or for an improper purpose. There
were issues raised by the evidence, and indeed prior to the filing of the grievance, to
suggest that a review of the program might be helpful. I endorse union counsel’s
suggestion that it would be unfair to expect the grievor or other faculty in her position to
push these concerns given their uncertain employment status. The idea of a jointly
administered audit of time usage and demands was considered by the parties at one point
(but appears to have been waylaid by the pandemic like so many other projects) and that
struck me as a potentially useful step to develop empirical evidence that would assist the
parties to come to grips with the pressures being experienced by faculty.
[53] However, after carefully considering the evidence, the submissions of the parties
and the jurisprudence, it is my conclusion that the grievance should be dismissed.
________________________
Barry Stephens, Arbitrator
November1, 2022