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HomeMy WebLinkAboutHague 84-07-23 / OPSEU 82646 LOCAL 110 H E A D NOT E HAGUE, P. (OPSEU) vs. Fanshawe College (A) Award dated July 23, 1984 (Brunner) Supplementary Award Prior award in this matter was made October 24, 1983 declaring the grievor a full time Teaching Master as of May 18, 1982 and was awarded wages and benefits back to twenty days prior to May 18, 1982. Difficulties arose in agreeing on compensation and the grievor's status after May 18, 1982 so the Board was called for further hearing on this matter. Board finds grievor was in the continuous employ of the College to December 21, 1983 which is to be the completion of his probationary period and therefore would progress normally through the salary grid to Step 6 as of April 29, 1984. IN THE MATTER OF AN ARBITRATION HEARING HELD AT TORONTO, ONTARIO, ON THE 22ND DAY OF JUNE, 1984 BET WEE N THE BOARD OF GOVERNORS OF FANSHAWE COLLEGE OF APPLIED ARTS AND TECHNOLOGY (College) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (union) AND IN THE MATTER OF THE GRIEVANCE OF WILLIAM PATRICK HAGUE #82646 BOARD OF ARBITRATION P. JOHN BRUNNER CHAIRMAN A. SHIELDS COLLEGE NOMINEE RONALD COCHRANE UNION NOMINEE A P PEA RAN C E S FOR THE COLLEGE BRENDA BOWLBY FOR THE UNION IAN ROLAND - 2 - SUPPLEMENTARY AWARD William ~a.trick 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, alleged that the College breached a series of Collective Agreements 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. By its award dated October 24, 1983, the majority of the Board declared that the grievor was a full time Teaching Master in the Academic Staff bargaining unit as of May 18, 1982, and was entitled to be paid such wages and other benefits as his full time status carried with it, such however to be restricted for the reasons indicated to the period commencing twenty days prior to May 18, 1982. The Board however was not addressed on the question of compensation and retained jurisdic- tion over the grievance in the event difficulties arose in this connection. We further expressly retained jurisdiction as to the grievor's status on and after the date of the grievance as such ~ad not been the subject of argument by Counsel. As a result of the inability of the parties to reach agreement on the question of compensation and on the grievor' s status after May 18, 1982, a further hearing was held on June 22, - 3 - 1984, for this purpose. At the hearing a number of issues were canvassed and some subsequently resolved as between Counsel. The first one that requires determination by the Board ~s whether the grievor achieved the status of a full time Teaching Master in the Academic Staff bargaining unit as early as September 15, 1981, as contended by Counsel for the Union or not until December 2l, 1981, as submitted by Counsel for the College. Although it would appear from our reasons that the date on which he reached this status was December 21, 1981, it became clear during the course of the argument that the question raised between the parties in this connection was purely academic. The evidence is clear and we so find that the grievor was continuously employed between September 15, 1981 to December 21, 1981, and his precise status during this period is irrelevant for the purposes of assessing the quantum of his compensation. The parties are in agreement that as of April 28, 1982, Hague was at Step 4 of the salary schedule contained in Appendix "I" to the Collective Agreement dated October 8, 1981, but are at odds as to his progression thereafter. Counsel for the College contends that he did not reach Step 5 on the salary schedule or scale until January 1, 1984, whereas Counsel for the Union submits that he was at Step 6 as of April 28, 1984. There is also - 4 - a lack of concensus as to when, if at all, Hague completed his probationary period. Counsel for the College argued that he had accumulated only eight months of seniority as of December 3l, 1983, although for reasons not disclosed, she indicated that the College was prepared to give him a further eight months of seniority, for a total of sixteen months as of that date. Counsel for the Union on the other hand strenuously and forcefully argued that Hague's probationary period had been completed as of December 31, 1983, and that he was now a regular full time Teaching Master. We now turn to these opposing contentions. The starting point is our prior holding that Hague became a full time Teaching Master in the Academic Staff bargaining unit as of December 21, 1981. Article 8.0l(a) of the Collective Agreement stipulates that a full time employee will be on probation until he has completed two years of continuous employment. It was agreed that the commencement or starting date for Hague's probationary period was December 21, 1981. We have already held that his employment as a full time employee continued to May 18, 1982. What then was the situation there- after? The evidence is that he only worked two days in each of the - 5 - months of September and October, 1982, and not at all in November and Decembe~. During the months January to April, 1983, inclusive, his teaching load exceeded fifteen days per month and he was treated by the College as having worked full time. The semester having ended in May, he did not teach again until September, when he was assigned eleven days and then fourteen qays during the month of October. In November and December he had a full time teaching load and after January 1, 1984, he is acknowledged to have been employed on a full time basis. Counsel for the College relied on two letters dated September 30, 1982 and one dated in December, 1982, in support of her submission that Hague I s full time status had changed or altered to that of a "partial loadtl teacher as of September 19, 1982. The first letter purports to confirm a discussion between the Chairman of the Languages and Humanities Division, J. P. Cleary and the grievor as to "possible future teaching employ- ment" during the period September 28, 1982 to December 23, 1982. The letter then went on to state "you are aware that this arrangement will not necessarily lead to employment for you. However, in the event that we are able to make an offer of employment, the assignment will not normally exceed l3 hours of teaching per week. Unless you are advised otherwise in writing, your employment would cease at the end of each individual assignment, without further written notice.tI The letter was - 6 - signed by Hague on September 30, 1982. The December, 1982 letter contained an offer for a "partial load" position for the period January 3 to April 26, 1983. It too sets out a similar admonition as to his employment ceasing at the end of the above mentioned p~riod without further notice. This letter too was executed by Hague. On August 12, 1983, a further offer of a IIpartia1 load" position was made by the College for the period September 6, 1983 to December 21, 1983, and this was accepted by Hague "without prejudice to my case" on October 10, 1983. In our opinion, none of these letters resulted in a severance of the grievorls employment or to put the matter another way, made his employment with the College non-continuous. Having been a full time Teaching Master as of December 21, 1981 and thereafter on probation, it is clear that he could only be relased from his employment by the giving of written notice in accordance with the provisions of Art~cle 8.01 (c). This however was never done for the obvious reason that the College did not then recognize him to be a full time probationary employee. Had it had the benefit of this Boardls award, it might have released him on proper notice but that is not the case. His status was then the subject of a grievance which had not yet been finally - 7 - determined. True it is that he signed the two letters and accepted the otfers therein, but that could not by itself sever or terminate his employment when he was at the same time challenging the College's classification of his employment status. Although he did not accept the first two letters without prejudice as was the case with the letter of August 12, 1983, this must be taken to be implicit and in our opinion he did not by executing them, waive his rights as a full time probationary employee so as to be now deprived of his success on this arbi tration. Those rights, which at that time had not yet been finally adjudicated upon, were in our opinion clearly not extinguished by reason of the acceptance of the offers contained in the letters. His actions make it clear that he on the one hand, by way of a grievance under the Collective Agreement, was taking the position that he was a full time employee, and on the other accepted whatever work the College was prepa~ed to provide him. In our opinion, his employment continued unabated from and after December 21, 1981, until December 2l, 1983. It was also contended that the words 'I two years I continuous employment It must be taken to mean two years of full time work. We cannot accept this submission. To do so would be tantamount to amending the Collective Agreement, something which we are specifically enjoined from so doing by Article ll.04(d). In our opinion, as long as the employment relationship continues and the full time employee remains in the active employ of the College, it cannot - 8 - be said that he is not in "continuous employment". If the College chooses to assign him less than fourteen hours per week, that does not affect his full time status as we have already indicated in our award and it certainly does not result in a severance of employment. In our opinion, the grievor was in the continuous employment of the College from December 21, 1981 to December 21, 1983, and accordingly, on December 22, 1983, completed his probationary period. For this reason, his seniority must be calculated from December 2l, 1981. That leaves for consideration the position of the grievor on the salary scale or schedule. As we have noted, the parties agreed that he was at Step 4 as of April 28, 1982. As we have already stated, his employment continued uninterrupted thereafter to the present date. Determination and progression wi thin the salary scales must according to Article 3.02 be determined in accordance with the College's classification plans dated August, 1975 and as set out in the "Guidelines for the Implementation of Salary Adjustments and the Classification Plans". Paragraph 2, "Progression Factors for Classification Plans" prescribes that annual increments to the appropriate mid-point of the salary scale are based upon experience. Beyond that point, performance constitutes the basis of progression. Experience to mid-point is indicated to be one step per year. Performance above mid-point where such is satisfactory is also one step per year. There is no - 9 - issue in this case as to the grievor t s performance and it is clear by virtue of his continuous employment and from the fact that the word "year" in the Plan is unqualified, that he was entitled to an increase of one step per year from and after April 28, 1982. Regard must also be had however to Paragraph 2 of Appendix "III to the Collective Agreement Salary Schedules "Allowances - Teaching Master" which reads as follows: II Annual increments to the mid-point are based upon experi- ence, at the rate of one step for each completed year on-the-job experience. Above the mid-point, but not beyond the maximum, one step will be granted where performance in the past year was satisfactory. For the purposes of this paragraph the fbllowing shall be considered as on-the-job experience: leave for union activities, paid leave of absence, secondment. " In our opinion, this does not require, in order for a teaching master to qualify for annual increments to the mid-point of the salary scale, that she or he worked each and every month of the year. In our view, provided that the Teaching Master completes a year on-the-job experience in the sense that he remains in the active employ of the College and teaches during the year he is qualified to move from one step to the next. Accordingly, we are of the opinion that the submission of Counsel for the union is correct and that Hague was at Step 6 of the salary schedule or scale as of April 29, 1984. We were advised by both Counsel that consequent upon a - 10 - determination by this Board of the grievor's seniority and his posi tion on the salary schedule or scale, the quantum of the compensation that we have awarded for the twenty days prior to May 18, 1982, could easily be calculated by them. In the event however any difficulties arise either in the' interpretation of . this Supplementary Award or the calculation of the quantum of compensation, we shall retain jurisdiction over the matter. DATED at Toronto this 23rd day of July, 1984. \l J) 1~& 't ~ P. JOHN 1~'~aA' j) {)~" A. HIELDS, COLLEGE N~MINEE \ \ ~cJJ~ I, UNION NOMINEE DISSENT OF R. A. SHIELDS .t'1y. .dissent from the majority decision in this award is based solely on the rationale outlined in the second paragraph of my dissent from the October, 1983 award in this matter, concerning the appropriateness of term appoint- ments and the absence of any contractual require- ment that notice of release be conveyed separately from an appointment noti~e. "R. A. Shields"