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HomeMy WebLinkAboutBell 82-09-15 ../i .... Be-II J" ~,,~ IN THE MATTER OF AN ARBITRATION / HEARING HELD AT NORTH BAY, ONTARIO, ON THE 15TH DAY OF JULY, 1982 ( BET WEE N CANADORE COLLEGE OF APPLIED ARTS AND TECHNOLOGY - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND IN THE MAT.TER OF THE GRIEVANCE OF ANNE BELL BOARD OF ARBITRATION P. JOHN BRUNNER CHAIRMAN K. HALLSWORTH COLLEGE NOMINEE GUY BEAULIEU UNION NOMINEE A P PEA RAN C E S FOR THE COLLEGE CORRINE F. MURRAY FOR. THE UNION RICHARD NABI 5-ep-r I Sl fJ2- (College) (Union) - 2 - AWARD This is a grievance dated June, 12, 1981, which is brought by Anne Bell, a full time Teaching Master employed by Canadore College of Applied Arts and Technology in North Bay (hereinafter referred to as the College or the Employer) alleging that the College breached Article 5.01 of the Collective Agreement (Academic Employees) between the Ontario Council of Regents for Colleges of Applied Arts and Technology and Ontario Public Service Employees Union (hereinafter referred to as the Union) in reducing her "vacation entitlement" by twelve days. She asks that she be "permi tted to take my normal vacation in accordance with the Collective Agreement". At the opening of the hearing it was. agreed that this Board of Arbitration was properly constituted and had jurisdiction to hear and determine the subject gr~evance. The matter before us was argued on an agreed statement of facts, and neither party called viva voce evidence. The statement of facts reads as follows: "l. The Board of Arbitration is properly constituted and has complete jurisdiction to adjudicate this matter. 2. The Collective Agreement in effect is the "Collective Agreement for CAAT Academic Employees 1979-1981". - 3 - 3. The grievance has been properly filed and processed through the grievance procedure. (See attached). 4. There are no preliminary objections. 5. The grievor is and was at all material times employed full-time, as a Teaching Master and is a member of the teaching faculty. 6. The grievor's seniority date is August, 1973. 7. The grievor is and was at all material times assigned to teach academic, post-secondary students. (Group I in the Collective Agreement). , 8. Except for the period which is the subject of this grievance, the grievor is and was normally assigned to teach an academic year of 10 months duration during the period of September to June, inclusive. 9. Except for the period which is the subject of this grievance, the grievor is and was normally annually scheduled by the emploYQr to take a vacation of two months during the months of June, July and August. Normally mid-June to mid-August. 10. The grievor was absent due to illness during the period January 6, 1981 to April 28, 1981, inclusive. 11. During this period of absence, the grievor received leave, with pay in accordance with sick leave arrangements known to the parties. 12. The grievor was assigned the vacation period of June 18th to August 14th, in 1981. 13. The employer has withheld 12 days pay from the grievor in connection with this matter. 14. The practice of Canadore College has been to pay employees their annual salary in equal instalments at regular bi-monthly intervals throughout the calendar year, if entitled." - 4 - In addition to the above it was stipulated that during the academic year 1980-1981, the grievor worked only f~om September 1, 1980 to January 6, 1981 and between April 28, 1981, and June 12, 1981. She was apparently ill from January 7th to April 27, 1981, and was by reason thereof unable to teach classes. Her vacation for the academic year was scheduled by the College from June 18th to August 14th, and this she accepted without complaint. However the Employer reduced her annual salary by an amount equivalent to 12 days pay for the reasons given in a memorandum dated June 19, 1981, which in its material respects reads as follows: "Article 5.01 of the Collective Agreement stipulates. a faculty member shall be entitled to a vacation of two months upon completion of "one full academic year's service" - (underlining added). During the 1980-81 academic year, you worked a total of 5.75 months (September, 1980 to January 6, 1981, plus April 28 to June 12, 1981) Like other Post Secondary faculty it is anticipated that you will be working from August 17 to 31, 1981 (.5 months). Plus, in accordance with College policy and previous cases of prolonged illness of faculty members, the College has allowed vacation to accrue for the first month of sick leave (1 month). This would make a total of 5.75 plus .5 plus 1 = 7.25 months. Your earned vacation for 1980-81 academic year (including the August period) would be: 44 x 7.25 = 31.9 or 32 working days 10 In view of the evidence presented, I must deny your grievance and advise you that your paid vacation for the 1980-81 academic year will be from June 13 to July 29t 1981 inclusive, and your return date to work will be August 17, 1981. It - 5 - By way of explanation as to the formula contained in the Memorandum that was applied by the College, it should be said that there are 22 working days per month for a full time Teaching Master. Hence the number 44 which represents the grievor's two rnonthvacation period. It is to be noted that mention is made in the Memorandum of a "College policy" on "prolonged illness of faculty members". It would appear that this policy ~s in fact contained in the sick leave plan which is applied by all Colleges governed by the Collective Agreement and to which reference is made in Articles 11.02 and 11.04(b). This sick leave plan however was not formally placed before us and was not made part of the evidence. It was sent to us by counsel for the College at the Board's request, but this only for the purposes of better comprehending the Memorandum of June 19, 1981. It was not suggested by either counsel that the sick leave plan was either incorporated into the Collective Agreement by reference or that it was part of a letter of intent which was governed by the Collective Agreement as was the case ~n S~. Cla~~ College 06 Appt~ed A~t~ ~nd Te~hnolDgy ~nd O.P.S.E.U. {G~ievan~e 06 A. P6t~nzne~} May 23, 1979 (Rayner). Indeed counsel for the College resisted any suggestion that it was something other than a policy unilaterally promulgated by the Employer and this was expressly accepted by Mr. Nabi on behalf of the Union who stated that he was not relying on any breach - 6 - by the Employer of the terms of the sick leave plan. In these circumstances any question as to compliance or otherwise with the sick leave plan should not be considered. It would appear that a full time Teaching Master ~s paid her annual salar~ bi-monthly throughout the calendar year. The result of this is that she receives monies not just during the ten month academic year, but as well during her two months vacation. The following provisions of the Collective Agreement require specific consideration: ltArticle 4.03 The academic year shall be ten CIO) months in duration and shall, to the extent it be feasible in the several Colleges to do so, be from 1st September to the following 30th June. The academic year shall in any event permit year- round operation and where a College determines the needs of any programme otherwise, then the scheduling of a member in one or both or the months of July and August shall be on a consent or rotational basis. VACATIONS. Article S.Ol A member of the teaching faculty who has completed one full academic year's service with the College shall be entitled to a vacation of two months as sch.eduled by the College, except that a member ~ss~gned to teach for an additional month (11th month) over the normal teaching schedule of the equivalent to ten ~onths as part of a continuous twelve month programme, shall be entitled to a vacation of one month, as scheduled by the College. Such member shall also receive a bonus of ten percent of the employee's annual salary for the additional eleventh ~onth of teaching assignment to be paid on completion of such assignment. A member assigned to teach in the eleventh month for less than a full month will be entitled to a pro-rata amount of the ten percent bonus referred to ~bove to be paid on completion of such assignment. .' - 7 - A member of the teaching faculty teaching in a continuous programme shall not be required to teach for more than t~elve consecutive months without a scheduled vacation of at least one (1) month. It is understood that the above provisions for vacations are not intended to prohibit Colleges from scheduling non-teaching periods at Christmas and New Year's, or at any other mid-term break. ARTICLE 5.03 In scheduling vacations, the College will take into consideration the maintenance of proper and efficient staffing of College programmes and operations and the requests of employees and will notify employees of their vacation period at least four weeks prior to the commencement of the vacation period concerned. It is und~rstood that fOllowing notification of vacation periods, vacation schedules may be changed in circumstances beyond the College's control or by mutual agreement.ll In addition note should be made of Article 3.01 and Appendix I (Salary Scales) . These provisions make it clear that a full time Teaching Master is paid an annual salary in an amount that depends on her formal education level and the progression step that she has reached on the salary scale. tihile the academic year is of ten months duration that depends on the particu~ar College, but generally i1;: l;'uns ,from September 1st to June 30th, .a,l though many Colleges have a year round operation. Article 5.01, which it is alleged was breached by the College, entitles every member of the teaching faculty who has completed one full academic year of service with the College to a vacation of two (2) months at a time scheduled by the College. - 8 - Exception is made in the case of a teacher who is assigned to teach an additional month as part of a continuous twelve month programme (this is admitted to have no application to the grievor) which entitles her to only one month's vacation but additional remuneration by way of a bonus. It is plain from these provisions that the grievor, as a full time faculty member, was entitled to an annual salary in accordance with the salary scale and in view of her seniority a vacation of two months. We agree with counsel for the Union that this Collec~ive Agreement does not provide for vacations with pay, but stipulates an annual salary and a two month vacation. See in this regard Coneb~oga College 06 Applied A4~b and Te~hnology and O.~.S.E.U., G4ievance 06 R. C. Membu~y, November 26, 1976 (O'Shea) and S~. Clai~ College 06 Applied A~th and Te~hnotogy and a.p.S.E. U., G4ievance on G. L. M~nto, February 28, 1979 (Brandt). Had the College had these awards in mind at the time of the Memorandum of June 19, 1981, the concept of "paid vacation" would probably not have arisen and much confusion would no dOubt have been avoided. It would also appear from the Memorandum that the College took the view that the grievor had not, by reason of her lengthy absence, completed one full academic year of service within the meaning of Article 5.01. In this respect we think that they were equally in error, as in our opinion the word "service" is to be taken in the context of the - 9 - Agreement as equivalent to "employment". See in this regard the remarks of the majority of the Board of Arbitration in the Conebtoga College 06 AppL~ed A~t~ and Technology Award (supra) at page 9. The evidence is that the grievor did receive two months vacation and accordingly there was of course no breach of Article 5.01. However it is submitted that the College breached the Collective Agreement by reducing the grievor's annual salary by an amount equivalent to twelve days' pay. We think that this submission is correct and is entitled to prevail. During her absence, the grievor was on sick leave. Under the terms of the sick leave plan she was entitled to have her salary continued to the extent of her accumulated sick leave credits as stipulated by the plan. The monies that she received between January 7 and April 28, 1981, were paid to her not under the Collective Agreement as if she had been teaching but under the terms and subject to the conditions of the sick leave plan. We think it to be trite that an employee who does not work, whether by reason of illness or otherwise, is not, subject to contrary express provisions in the Collective Agreement, entitled to be paid a salary or wage under the Agreement and to be treated in this respect as if she were working. This was the view of the Board of Arbitration in Canado4e College ofi Appl~ed - 10 - A~t~ and TechnoLogy and O.P.S.E .u. G~~evance 06 CoL~n Bennett January 5, 1982 (Brent), a conclusion with which we agree and which is in accord with generally accepted principles. See in this regard PaLme~ I'Collec~~ve Ag~eement A~bit~a~~on ~n Canada, page 493, and Bltown & Bea.Lttj, IICCtnad..i.a.n La.bou.~ Al1..b~.:t!ta..tJ..on~1! , page 415. In our view, the grievor was not entitled to be paid a salary un~er the Collective Agreement during her illness while she was absent from work between January 7, and April 28, 1981. Her entitlement, if any, to have her salary continued during this period, depended on the terms of the sick leave plan, which as we have said, is not before us in evidence. Indeed, it is conceded that she was not paid salary under the Collective Agreement but rather benefits in an amount equivalent to her salary under the sick leave plan. The twelve days' pay were not withheld from the sick leave benefits. She was paid all that she was entitled to under the plan between January 7, and April 28, 1981. Had the deduction in questioned been made from these benefits during the period of her absence, this mayor may not have constituted a breach of the sick leave plan, but that would have been a matter that could not have been dealt with on this grievance. What the College did was to deduct twelve days' pay from her salary not during her absence, but for the period of her vacation on the basis of the College's policy referred to in the Memorandum of June 19, 1981, pursuant to which vacation is allowed to accrue only for the first month of sick leave. We have already stated our view . -.:. . . - 1,1 - that under this Collective Agreement an employee such as the grievor is entitled to two months vacation and any concept of accrual of vacation is entirely foreign to the Collective Agreement. While the College had every right not to pay the grievor her salary while she was absent and did not work, it could not make a deduction from her annual salary for any other period. Yet this is exactly what it did as the Memorandum of June 19, 1981, makes clear. In our view there is nothing in the Collective Agreement which permitted a deduction of twelve days' pay from the grievor's annual salary for a period other than January 7, to April 28, 1981, and the College's action in this regard constituted a breach of the Agreement. Accordingly, the grievance is allowed and it is ordered that the grievor be forthwith paid an amount equivalent to twelve days' pay calculated on the basis of the salary scale contained in the Agreement. We shall retain jurisdiction over this matter in the event the parties experience difficulty in the implementation of the Award, or the calculation of the compensation awarded. DATED at Toronto this 15th day of September, 1982. ~~~- ~ '.c:::::--------- ~j~-~- ~ . JOHN ~RYNNER~' CHAiRMAN.'...' .'...-....---"'=='-=--:? i I . f\ ' . w I \' K.' NQU4LJC.t;!-h - ~ez LY~~ {L CLo. . "{I K. HALLSWORTH, COLLEGE NOMINEE ~nv :1/;;~_ T~!n~~~~~ /, '. D I SSE N T With respect, I am unable to agree with the majority award. It seems to me that the words in Section 5.01 "one full academic yearl"s servicell and in Section 4.03 liThe academic year shall be ten (10) months in duration" must have special meaning when determining an employee's entitlement to two months' vacation. I have difficulty believing that once an employee has completed one full academic yearts service sometime in the past he or she will thence forward be entitled to an annual vacation of two months, regardless of clrcumstances. This would mean th~t an employee who has sought and been granted a leave of absence of six months or more under Section 14.03, for example, would still be entitled to a vacation of two months with full pay. It seems to me more likely that the proviso regarding a full academic year1s service ;s intended to apply in the year of vacation, so that full pay for the two months' vacation will apply only if the employee has worked tre full academic year of ten months. On this basis, the College's method of calculating pay for the vacation period, with allowance for the first month of the leave of absence is eminently fair. I would have dismissed the grievance. ({~ K. Hallsworth