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HomeMy WebLinkAboutHague 83-10-24 ~'. ..../.'..1/.'.:::-.""., /. ,l' "'~?" '.',: ., ,I}:' : . ./. ., i."',,r ,: 't,. $' IN THE MATTER OF .AN ARBITRATION HEARING HELD AT TORONTO, ONTARIO, ON THE 1ST DAY OF JUNE, 1983 BET WEE N : THE BOARD OF GOVERNORS OF FANSHAWE COLLEGE OF APPLIED ARTS AND TECHNOLOGY - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND IN THE MATTER OF THE GRIEVANCE OF - - , WILLIAM PATRICK HAGUE , BOARD OF ARBITRATION P. JOHN BRUNNER CHAIRMAN A. SHIELDS COLLEGE NOMINEE RON COCHRANE UNION NOMINEE , A P PEA RAN C E S FOR THE COLLEGE BRENDA BOWLBY FOR THE UNION IAN ROLAND , , '-- r~r/ --n / / ) L.1/' (College) (Union) .1 .. . - 2 - AWARD William Patrick Hague, a Teacher in the Languages and Social Sciences Division of Fanshawe College of Applied Arts and Technology (hereinafter referred to as the College or the Employer) by a grievance dated May 19, 1982, alleges that the College breached Collective Agreements dated October 13, 1978, May 1, 1980 and October 8, 1981, with the Ontario Public Service Employees Union (hereinafter referred to as the Union) by its failure to classify him as a full time Teaching Master in the Academic Staff bargaining unit as of January 7, 1980. It was agreed by both Counsel that this Board of Arbitration was properly constituted but Counsel for the College submitted that we had no jurisdiction to hear and determine the grievance on the ground that it had not been filed within the time limits contained in the respective Collective Agreements. THE FACTS The grievor was first hired by the College shortly prior to July 24, 1979, as a "partial load" employee to teach Sociology for the period September 5, 1979 to December 20, 1979. - 3 - In accordance with Section 3.03(b) of the Collective Agreement dated October 13, 1978, which was then in force, he was paid an hourly rate. Other terms and conditions of employ- ment, typical for partial load employees (see Appendix II to the Collective Agreement) were set out in a Letter of Appointment dated July 24, 1979, from the Chairman of the Social Services and Humanities Division, Sheila Lancaster. On September 5, 1979, the grievor was assigned to teach two courses in Sociology at the Woodstock and Victoria Schools of Nursing ,and the Physical Fitness Program and he performed these duties until December 19, 1979, on a regular basis, nine hours per week. On January 3, 1980, he resumed his teaching and on January 15, 1980, was formally appointed as a "sessional employee" effective from January 9 to February 18, 1980, to teach Sociology and Psychology for eighteen hours per week. On January 24,1980, he was appointed a "partial load" Instructor in the same courses for thirteen hours per week from February 19,.1980 until April 24, 1980. On April 29, 1980, he was assigned to teach Sociology at the Victoria School of Nursing (three hours per week) until May 20, 1980, and as well on May 2, 1980, instructed in the same subject at the Woodstock School of Nursing (four hours - 4 - per week) until June 6, 1980. During this entire period his designation in the College's records was that of part time Instructor. On August 15, 1980, the grievor was again appointed as a ~partia1.1oad"" Teacher for the period September 3, 1980 to December 17, 1980, to teach two courses in Sociology, eleven hours per week. On September 22, 1980, his teaching load was increased to thirteen hours per week and this remained in effect until December 17, 1980. He resumed these duties in the new year on January 5, 1981. On January 14, 1981, he was appointed a "sessional employee" for the period January 12, 1981, to April 24, 1981. It is of interest to note that a Pay Roll Authorization Form dated December 4, 1980, shows him to be a part time Instructor with a teaching load of thirteen hours per week for the period January 5, 1981 to April 24, 1981. Another form, covering January 17, 1981 to April 24, 1981, shows his employment status as a "sessional-employee" in accordance with the Letter of Appointment dated January 14, 1981. This letter, which in~e~ aUa set out the terms and conditions of his appointment, contains the following sentence: "Unless you are advised otherwise in writing, your employment will cease at the end of the above mentioned period, without further written notice." - 5 - The evidence indicates that between January 12 and April 24, 1981, the grievor taught twenty-two hours' per week on a regular basis. Nevertheless in a Memorandum dated January 20, 1981, he is referred to as having the status of a "partial load" employee as of the beginning of the year. On April 14, 1981, Hague was assigned as a part time Instructor to the Victoria School of Nursing until May 26, 1981, to teach Sociology for a total of twenty-seven hours and to the Woodstock School of Nursing from May 14, 1981 to June 8, 1981, for four hours per week. On August 29, 1981, he was offered a temporary appointment asa "partial load'employee from September 9 to December 21, 19S1. Once again he was advised that his employ- ment would cease on that date without further notice. The evidence shows that from September 9 to December 21, 1981, the grievor taught courses in Psychology and Sociology for sixteen hours per week (except for some minor exceptions) on a regular basis. On December 9, 1981, Hague was once more appointed a "partial loadll employee for the period January 5 to March 31, 1982. Again he was advised that his employment would cease on the latter date unless advised in writing to the contrary. Until March 11, 1982, he taught thirteen hours per week. - 6 - On March 15, 1982, he was appointed a "sessional employee" until April 27, 1982, when he was once more informed that his employment would cease at the end of this period. April 27, 1982, was his last teaching day prior to the date of the grievance. Subsequently, he was again appointed a "partial load" employee from January 3 to April 26, 1983. THE PRELIMINARY OBJECTION Counsel for the College submits that our jurisdiction is limited to matters arising from the "interpretation, application, administration or alleged contravention" of the Collective Agreement dated October 8, 1981, which was in force on-the date of the grievance. She said that the matters giving rise to the complaint had occurred or come or alternatively ought reasonably to have come to the attention of the grievor more than twenty days prior to May 19, 1982, and thus was barred by the mandatory prescription period in Section 11.02 of the Collective Agreement. If the grievance could be considered under the two predecessor Collective Agreements, then she submitted that Section 9.02 thereo~which in substance was the same as Section 11.02 (Section 9.02 of the Agreement dated October 13, 1981, being even more restrictive) - 7 - The position of ,the grievor and that of his Counsel throughout the proceedings was that, despite the wording of the formal grievance, he had become a full time Teaching Master in the Academic Staff bargaining unit as of January 7, 1980, and that he continued to hold such status at all material times thereafter. Assuming that Hague was a full time Teaching Master as alleged by January 8, 1980 (with respect to which we will comment in full when we deal with the merits) the College's failure to treat him accordingly would have been plainly in contravention of the respective Collective Agreements. Each of the Agreements however, contained a mandatory, imperative time limitation period, requiring the employee to discuss his complaint with his immediate supervisor within twenty days "of the occurrence or origination of the circumstances giving rise to the complaint" (Collective Agreement dated October 13, 1978) and "within twenty 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" (Collective Agreements - 8 - dated May 1, 1980 and October 8, 1981). None of the Agreements, nor the College~' CollecZive &14ga~n~ng Act give to a Board of Arbitration the power to extend the time for the taking of any steps in the grievance procedure and it is accordingly clear that no relief against non-compliance with the limitation period is available. The evidence in this case is perfectly plain and the various Let~ers of Appointment to which we have referred eloquently speak to this, that the grievor was at all material times fully aware that he was not being treated as a full time Teachi~g Master in the Academic Staff bargaining unit. He could not have been under any illusions in this respect. The circumstances giving rise to the complaint occurred or came or alternatively ought reasonably to have come to the attention of the grievor as early as January 15, 1980, when he was appointed a "sessional employee". The Letter of Appointment of that date must have made it clear to him as to the status that he was being accorded by the College and if-in fact he was, as he now alleges, a full time Teaching Master in the Academic Staff bargaining unit by January 8, 1980, it was incumbent upon him to grieve within twenty days of January 15, 1980. His failure to do so at any time thereafter until May 18, 1982, despite subsequent Letters of Appointment designating his status to be either "par~ial load" or "sessional", now must be --~- -~~----,--~---_._---------~------ - 9 - held to bar him from arbitrating the grievance. We have no doubt whatever that the time limits in each of the Collective Agreements that were in force between January 8, 1980 and the date of the grievance have expired and indeed ran out many months prior to May 18, 1982. Accordingly we hold that the grievance is inarbitrable. However, for the reasons given in The. BoaJr..d 06Gove.Jr..noJr..~ 06 Al.gonqu..i.n Colle.ge 06 AppUed AJr..tl.> and Tel!.hnologyand O.P.S.E. U~ (GJr...i.eutnc.e 06 Gat-i.en) (Brunner) released earlier this month, the grievance is clearly a "continuing" one. See also The. BatJr..d 06 GoveJr..noJr..~ 06 SheJr..-i.da.n Co.etege 06 Applied AJl.tl.> and Trehnology and o. P. S. E. U. (GJl.ievanc.e. 06 EU.-i.~) May 30, 1983 (Brown) and the earlier decision in Re A!gonqu..i.n Co.etege 06 Applied AJr..t~ and Trehnology and o. p~ S. E. U. (GJz1.eutnc.e. On Rudenko' 80S:!. hna.. Jl.e), dated June 1, 1982 (Brent). Accordingly, our jurisdiction to grant a declaration and the consequential relief that is sought must be limited to the period commencing twenty days immediately preceeding the date that the complaint was first made to the grievor's immediate supervisor, which on the evidence appears to have occurred on May 19, 1982 and we so hold. THE MERITS The evidence indicates that from September 5, to December 20, 1979, the grievor was a "partial" load" employee. The Collective Agreement dated October 13, 1978, which was then in force, as well as the two succeeding Collective Agreements, defined a "partial load" employee as a teacher who teaches more than six and up to and including thirteen hours per week on a regular basis. A full time Teaching Master covered by the provisions of the Academic Staff bargaining unit however, is a person who teaches fourteen hours or more on a regular basis. (See The EcttlLd 06 G OVelLnOlL.6 06 Fan.6ha.we College On AppUed Au.6 and T ec. hn o log y and o. P. s. E'. u. ,. (G lL.i.e va nc. e 06 En re kle.ba nk) dated October 21, 1981, (Brunner)). In this period the grievor taught nine hours per week and continued to do so until January 9, 1980. There is accordingly no basis for holding that he was a full time Teachi~g Master at least up to that date. However, there is no evidence that his employment was terminated at any time prior to his appointment as a "sessional employee" on January 15, 1980. As a "partial load" employee, he was a member of the bargaining unit, with rights as accorded to him by the Agreement, including the right not to be released from employment except upon two weeks written notice. The evidence does not indicate ',~.~_...~..""_"__"P._._., ....' '~'''''''--''''_''''<'______~'._'a'_~_> _. ~...........~_..._,'~~~V" _.__~__..c'.' __" _.__......_..-___..h ,-_.0. . l'_".~_~.""."'.:;;,~~"':U;:~"'"'"'_'''''''','''''''.'\.,~;}.",~..,''''''"'..',...".K'=~'''''''''~_'.l:!>_~_~""".j'_"<"""'~h"','!'__..._"""'~..._..."'"'""_.;,;>,...",,~$=:c;:.....x__~"!.l,.:,',.:'t"";,,,~,__....a,~,.,,=.,.;.;.'''~''''~.'*~-~_#'_'!:/<;.~'''~;:.......,.'';:~~.~~~......''''''''',. _.,.~J<, _ __.~~ l'O'iI'> ,_ .~~~.. ..~-~'""~-'<"""'~-~'-~.."" that any such notice was given at any time up to January 15, 1980. Accordingly we hold that he was a "partial load" employee until January 9, 1980, when his "sessional" employment commenced. As noted the actual formal appointment appears to have been made on January 15, 1980. However, the Letter of Appointment is somewhat vague and accordingly we are not prepared to hold that it may have been an attempt to make the appointment retroactive to January 9, 1980, and thus void in accordance with the reasoning of the Board of Arbitration in the BoaJz.d 06 G Dve.Jz.noJz..& 06 fa.n.6MWe Colle.ge 06 AppUe.d AJz.:t.6 and T e.c. hn olog y and O. P. S. E. U. (G.ue. U1 nc e. 06 Sa. 64an) dated January 21, 1981 (Rayner). It is clear that the College was purporting to appoint a "partial load" employee as a "sessional employee". A "sessional employee" was by the Agreement dated October 13, 1978, which was then still in force, defined as "a full time employee appointed on a _sessional basis for up to twelve full months of continuous or non-continuous accumulated employment in a twenty-four calendar month". By the provisions of the College.6' Colle.ctive BaJz.gaining Act (hereinafter referred to as the Act) and the Collective Agreement, "sessional employees" were excluded, as they still are, from the Academic Staff bargaining unit. A question arises immediately as to whether or not a College can appoint a person who is a "partial load" employee in the bargaining unit as a "sessional employee" who but for the provisions of Appendix III, is not covered by the Collective Agreement and is not an "employee" for the purposes of the Act. In The. BcnJLd ob G ove.JLnOJLl> - on 11 nl>ha.we. College. On Applie.d AJc.tl> and T~ hnoi.ogy a.nd 0.1'. S. E. U. (GJUeva.nc.e On BJc.oc.kleba.nk), October 21, 1981, (Brunner) it was held that the College could not unilaterally and without the consent of a full time Teaching Master in the Academic Staff ba~gaini~g unit, and without lawful termination of his employment, appoint such a person as a "sessional employee~. While the reasoning in that case may well be applicable to that of tha "partial load" employee, albeit with some modification, in our view the facts of this case preclude the application of that principle. In this case, the evidence is clear that the grievor consented and agreed to his change of status and accepted his appointment as a "sessional employee". In our view, there is nothing in the Collective ~greement or in the Act, to preclude an employee with the des-ignation of "partial load" from freely and voluntarily accepting a subsequent appointment as a "sessional employee". This as we have said is not the case of a unilateral appointment by the Employer which deprived an employee of certain rights under the Collective Agreement, but a case where he agreed to his change in status. Accordingly, we are of the opinion that the "sessional" appointment of January 15, 1980, was valid. - - - 13 - The aforesaid appointment expired on February 18, 1980. On January 24, 1980, he was appointed a "partial load" Instructor commencing February 19, 1980 and ending April 24, 1980 and this arrangement was continued without formal appointment to June 6, 1980. In our opinion his designation as "partial load" employee during this time was proper and must be upheld. On August 15, 1980, he was again appointed a "partial load" teacher from September 3 to December 17, 1980. While we agree that he was not released as an employee on or after . June 6, 1980, and that his employment continued until December 17, 1980, he was in our opinion properly designated as a "partial load" employee. This brings us to the "sessional" appointment on January 14, 1981. Again it was made with the consent of the . grievor and for the reasons previously indicated, must be held to be valid. It was by its terms effective until April 24, 1981. Although we have made reference to a Pay Roll Authorization Form dated December 4, 1980, which shows him to be a part time Instructor with a teaching load of thirteen hours per week from January 5 to April 24,_ 1981, in distinction to another Form covering January 17 to April 24, 1981, which accords him.the status of a '''sessional employee", we are of the opinion that the two forms should not be interpreted as being inconsistent. The only reasonable inference from all of the evidence and the only reasonable view that one can take is that the Pay Roll Authorization Form dated December 4, 1980, contemplated that the grievor would become a part time Instructor on a "partial load" basis on January 5, 1981, and this of course preceeded his subsequent appointment on January 14, 1981, as a "sessional employee". The Memorandum of January 20, 1981, is perhaps more troublesome, but it directs itself to the question of the deduction of Union Dues for "partial load" employees effective January 1, 1981, a time when the grievor was still a "partial load" employee and not yet appointed as "sessional". In the absence of clear and cogent evidence to the contrary, we are not prepared to find that he had a "dual" status between January 12 and April 24, 1981, and we hold that he was a "sessional employee" during this period. What then was his precise status on April 24, 1981, the date on which his "sessional" appointment expired? Counsel for the College submitted that his employment terminated in accordance with the Letter of Appointment on January 14, 1981. The Collective Agreement dated May 1, 1980, which was then in force however, provided by. paragraph 1(a) in Appendix III that a "sessional employee" may be released upon two weeks written notice. In our opinion, this contemplates a separate Notice of Release subsequent to an appointment which cannot be incorporated, ad initio, into the original appointment. . . If the College wishes to terminate the employment of a "sessional employee" it must in our opinion do so by a proper Notice of Release.- Indeed the facts of this case- be1y that his employment was terminated on April 24, 1981, because he continued to teach until June 8, 1981. On August 29, 1981, he was offered and accepted a temporary appointment as a "partial load" employee from September 9 to December 21, 1981. The evidence is that his teaching load increased to sixteen hours per week starting September 15, 1981 and he taught courses in Psychology and Sociology each and every week on a regular basis to December 21, 1981. His,teaching load in this period was clearly in excess of fourteen hours per week and the question at once arises as to whether a "partial load" employee who is assigned to teach fourteen hours or more per week on a regular basis for a three month period and indeed an entire semester, becomes by reason thereof a full time Teachi~g Master covered by the Academic Staff bargaining unit. In our view that question must be answered in the affirmative. Although fluctuations in teaching hours are to be expected, and indeed are contemplated by the three Collective Agreements in question, where a "partial load" - 16 - employee is given a teaching assignment for an entire semester which is in excess of fourteen hours per week, no other conclusion can be reached than it was intended that he become a full time Teaching Master. Whether the assignment to teach sixteen hours every week was made in error or not, it is plain that the regularity of his teaching load put him over the full time Teaching Master level and brought him within that classification and into the Academic Staff bargaining unit. Accordingly, we are of the opinion that he was a full time Teaching Master in the Academic Staff ba!~ainingcunit as of December 21, 1981, and we so hold. In these circumstances, his appointment as a "partial load" employee on December 9, 1981, effective January 5, 1982, requires careful scrutiny. Firstly, it must be stated that it was made unilaterally and not with the agreement of the grievor. In our view, the appointment would not have been made had the College been.cognizant of the grievor's true status. It is of course true that Section 3.03(b) of the Collective Agreement of October 8, 1981, as well as its successor, contemplates a full time Teaching Master being . given an assignment of less than fourteen hours per week, but this does not alter his status and make him a "partial load" employee. In our view, his appointment of December 9, 1981, must be viewed as an attempt to assign him less than fourteen hours per week, without a change in status. '. 1>1 f \. In our opinion, on an analogous reasoning as expressed in fa..n.6hawe College 06 AppUed AJL:t.6 and Tec.hnologyand O.P.S.E. u. (G.u.evanc.e 06 BJLocklebank) (supra), a full time Teaching Master cannot, without his consent, have his status altered to that of a "partial load" employee and be deprived of the benefits accorded by the Collective Agreement. That is not to say that he cannot be assigned a teaching load of less than fourteen hours per week. That is expressly contemplated by Section 3.03(b) of the Agreement. However, when this happens, he continues to be paid a salary rather --than- on an hourly rate as are "partial load" employees, unless some other mutual agreement is made between the employee and the College or in the case where consequent upon a lay-off, he displaces a "partial load" or part time employee, in which event he must accept the identical employment conditions as employees within those designations. In our opinion, it is implicit from Section 3.03(b) of the Agreement tha~ a full time Teaching Master cannot be unilaterally redesignated to "partial load" status without his consent. The same result must be held to follow with respect to the appointment of March 15, 1982, to "sessional" employment for the period ending April 27, 1982. Again, the appointment was made unilaterally and without his concurrence. For the reasons given by the B~ard in the award on the BJLoc. kle.lxtnk grievance, a full time Teaching Master and a member of the Academic Staff bargaining unit cannot unilaterally be appointed to "sessional" employment and accordingly, the College's attempt to do so must be declared to be invalid. '. - .HI - There is no evidence that his employment was terminated either by way of Notice of Release or discharge at any time to the date of the grievance and accordingly, it must be held and we so declare, that on May 18, 1982, the grievor was a full time Teaching Master in the Academic Staff bargaining unit. However, for the reasons indicated on the preliminary objection, while he is entitled to such wages and other benefits as his full time status as Teaching Master in the Academic Staff ba~gaining unit carried with it, this must be restricted to the period commencing twenty days prior to May 18, 1982. Since the Board was not addressed on this matter and indeed was requested not to do so, we shall retain jurisdiction over the grievance in the event difficulties arise in the calculation of the compensation which we have awarded. We shall also retain jurisdiction on the question of the grievor's status on or after the date of the grievance which was not commented upon by Counsel. For these reasons, the grievance is allowed and the declaration as indicated is issued. Before leaving this matter, we should note, as was said in The. BoaJz.d 06 Gove.Jz.noJz..6 06 Jarz..6ha.we. CoUe.ge. 06 AppUe.d AJt..:t.6 a.nd Technology and O.P.S.E.U. (GJz.ie.\.ttnce. 06 BlLcckle.bank) as well as in The. Boa.Jr.d 06 Gove.Jr.nOIL.6 06 Algonquin CoUe.ge. 06 Applie.d AJr.:tc and Technology a.nd O. P. S. E. U. - 19 - {GJt-teu:t.nc.e 06 Ga.;t-i.en}, that no argument as to the possible application of the Doctrine of Estoppel in connection with the various appointments that were made by the College was advanced and accordingly has not been considered. DATED at Toronto this 24th day of October, 1983. ~~ fe -~~~ /.,~ . / -... --~-' .. ,-..-. ". ........ .-...-......_~ /' - .,' - -----". ...~ - "/." .s----~' -- --~ .e-. ~OHN BRONNER, CHAIRMAN 11l4AtilcL& ~ D~ ~ A. SHIELDS, COLLEGE NOMINEE l( ~OA- pJv~ " COCHRANE,~UNION NOMINEE RON . / D I SSE N T Having -had an opportunity to review the majority decision in this matter, I find that I must dissent therefrom. The grievor's own eyidence in this case indicated that he was well aware of the termination date of each appointment. At no point was he labouring under the miscon- ception that he had obtained full time status. Notice of his release, in all cases, was contained in his appointment notice and such notice always exceeded the two-week minimum required by Appendix 11, Section 2 or Appendix 111, Section 1(a), as applicable. I disagree with the Chairman's conclusion at the bottom of page 14 of the award; nothing in the collective agreement prohibits term appointments and, in my view, there is no requirement that notice of release be conveyed separately from an appointment notice. At all times the grievor and the College were proceeding on the basis of a series of limited term appointments and the grievor clearly understood that each appointment would end and that there were periods of time when he was not an employee. In each case he accepted and acquiesced with the terms of his appointment, including the status accorded to him by the College and, therefore, he should not n~w be allowed to change his mind and grieve. It is my recollection that this last proposition was the found- ation of the College's argument and, notwithstanding the Chairman's comments at page 19, in my view this constitutes an estoppel argument which should have been considered by the Bnard. For the above reasons, I would have ~ismissed this grievance. R. A. Shields October 24, 1983