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HomeMy WebLinkAboutMarkovic 23-05-12IN THE MATTER OF AN ARBITRATION BETWEEN: HUMBER COLLEGE ("Humber") and ONTARIO PUBLIC SERVICE EMPLOYEES' UNION ("Union") AND IN RESPECT OFAGRIEVANCE OF JOE MARKOVIC Stephen Raymond Appearances for Humber: Tim LizJoe Vin Berman Allison Coulter Alyssa Abraham Carl Oliver Farzad Rayegani Appearances for the Union: Allison Vanek Fredy Mejia Joe Markovic Arbitrator Counsel Client Services HR Business Partner HR Business Partner Associate Dean, Built Environment Senior Dean, Faculty of Applied Science & Technology Grievance Officer Local President Grievor A hearing was held via Zoom on January 16 and February 16, 2023. DECISION Joe Markovic has a long history in his employment at Humber College ("Humber") of being dissatisfied by both how his job at Humber is classified and his rate of pay. This decision is about a grievance he filed on June 13, 2019 ("the June 13, 2019 grievance") under the support staff collective agreement. In that grievance, he alleges that Humber should have been paying him as a Professor under the academic collective agreement from 2009 up to January 2019. Humber contends that this grievance should be dismissed. The Union disagrees. The June 13, 2019 grievance claims an approximate amount owing to Joe Markovic of $500,000. He claims that because of a letter he received dated May 30, 2019 that his position should have been that of Professor under the academic collective agreement rather than as a Civil Technologist under the support staff collective agreement. 3. The letter from Carl Oliver, Associate Dean, to Joe Markovic is brief. It reads as follows: Hello Joe, I'm writing to provide you with a written response to the concern you raised earlier this year regarding work you performed in your role of Lab Technician in the labs. While we have discussed this verbally, I thought it would be helpful for me to respond in writing. As you are aware, based on our discussions, the College is making changes within the Labs in support of strategic College priorities. The Faculty is transitioning towards having Professors provide academic leadership, evaluate students' practical work performed during those scheduled times and a range of responsibilities in their role of Professor within Labs. Lab Technicians & Technologists may also be scheduled to work in the labs to support the Professors and students. Based on our discussions to date, and in hearing your views and preference not to be in the lab this year as we transitioned the configuration of work and activity and function being performed in the labs, you were provided the opportunity this year to either work alongside the Professor or complete your work outside of scheduled lab time; following our discussions, you elected to complete your work this year before and after the students scheduled lab time. The work assigned to you to perform in the labs is within the scope of your job description and has not encompassed the role of Professor which is set out in the Academic Collective Agreement. I trust that we can move forward in a positive way to support the students at Humber. Should you have interest in a part time teaching contract in the event of future opportunity, please let me know so that we can explore whether this may be possible. Cart 4. Joe Markovic takes it from this letter that Humber is asserting that the work he had been doing was now going to be performed by Professors. As a result, he should have been compensated for his work as if he were a Professor. Humber has several arguments about why that is not the case but brings a preliminary motion that the grievance be dismissed as the matter has already been determined, a legal concept known as res judicata. 5. 1 do not agree that this matter is res judicata. As argued by the Union, arbitrator Surdykowski in OSSTF and Ottawa -Carleton District School Board, 2007 CanLll 73924, res judicata cannot be established unless there is a prior determination of the matter in dispute. There is no prior determination of the matter. There is though a settlement. While a settlement is not a prior determination of the matter in dispute, it may be, as arbitrator Surdykowski stated in OSSTF, supra, that a settlement can establish an estoppel. In my view, that is what occurred here. 6. While there is a long history of multiple grievances and resolutions of those grievances that may have affected my decision, I need not consider anything but one prior resolution. Joe Markovic filed a grievance on January 19, 2018 grievance ("the January 19, 2018 grievance'). That grievance was settled on March 27, 2019 ("the March 27, 2019 settlement"). 7. The March 27, 2019 settlement estops Joe Markovic from pursuing his June 13, 2019 grievance. In the Memorandum of Settlement ("MOS"), Humber agrees to increase the pay band of Joe Markovic's job by two steps. It also agrees to do this retroactively to 2016. Without any other language in the MOS, I would consider this a complete answer to the June 13, 2019 grievance as there is a tri -partite agreement (Humber, the Union and Joe Markovic) as to what Joe Markovic's pay should be for any period up to March 27, 2019. In the June 13, 2019 grievance his claim to a pay increase ends in January 2019. Anything that he could receive in respect of the June 13, 2019 grievance is subsumed in the agreement to pay him retroactively from 2016 up to March 27, 2019. If his claim, as he asserts here, goes back to 2009, he had to address that in the March 27, 2019 settlement. 8. That is not the end of the analysis. The MOS also contains a specific release. It provides, 3 in part, that the "settlement represents the complete agreement between these parties, supersedes all other written or verbal agreements, and resolves any and all outstanding issues related to this grievance". The January 19, 2018 grievance and the June 13, 2019 grievance are about the same thing — what should Joe Markovic get paid for his work? When he settles that claim, he is specifically precluded from bringing another grievance about the same issue. Put another way, in settling the January 19, 2018 grievance, Joe Markovic has settled the exact issue that his June 13, 2019 grievance is about — what should Joe Markovic get paid for his work? 9. The grievance is therefore dismissed. 10. 1 choose to comment further that even had I not dismissed the grievance for the reasons stated above that the grievance would have still been dismissed for other reasons. The letter that gave rise to the grievance in no way establishes that Joe Markovic has been misclassified or improperly paid. Dated at Toronto, this 12"' day of May, 2023. Stephen 4mond 4