HomeMy WebLinkAboutSafran 81-01-21
"'~.)
IN THE MATTER OF AN ARBITRATION
BET WEE N:
THE ONTARIO COUNCIL OF REGENTS FOR
COLLEGES OF APPLIED ARTS & TECHNOLOGY
(FANSHAWE COLLEGE)
(hereinafter called the "Employer"
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES
UNION
(hereinafter called the "Unionll)
'\
GRIEVANCE OF S. SAFRAN
(hereinafter called the "Grievor")
30ARD OF ARBITRATIm~:
W. B. Rayner, Chairman
J. H. McGivney, Q.C., College Nominee
R. Cochrane, Union Nominee
APPEARING FOR THE UNION:
R. Nabi
APPEARING FOR THE COLLEGE:
C. Murray
HEARINGS IN RELATION TO THIS MATTER ~vERE HELD ~N LONDON, ONTARIO ,ON
lMAY AND l2 NOVEMBER, 1980
r"""-""",,,,,,,,~~,,,,,~,,-~_,......._.,.,...N!"""'-""~""'~'~"-".", .......
-..'t:);J
2.
AWARD
This grievance arises from th€ rel~ase of the grievor on
October the 5th, 1979. The grievor claims that she was a full time
probationary employee at the time of her release and that she was not
given the proper notice as required by Article 8.01(c) of the Collective
Agreement. That article provides for at least 90 calendar days
written notice when a probationary full time employee is released
after the first five months of continuous or non-continuous accumulated
employment. The g~ievor claims that since she was not given proper
notice she has not beeL properly released and still remains an
employee of the College. She therefore seeks back pay from the time
of October the 5th, 1979 as well as a declaration to the effect that
she' still continues as an employee.
The College r.:aintains that the grievor wa-s not a full:.time
probationary employee at the time that she was released. The
grievor was given two weeks notice and the College takes the position
that that was the appropriate notice given to the grievor because of .
her status at the time that the notice was given.
There are really no facts in dispute.
Both ,parties agree that the grievance is pro~erly filed
and is properly before the board. They both agree that the Board
has jurisdiction to hear the grlevance.
3.
>",",:
~'~""'.~.
The grievor commenced employment at Fanshawe College on
December 19th, 1977. She worked occasionally for the college.
In 1978, in July, the grievor was offered and accepted three weeks
of sessional employment.
In September of 1978 the "grievor received certain
instructions from her co-ordinator, Mr. McGOwan. In the first- week
of September the grievor taught two days as" a substitute teacher.
Mr. McGowan th~n asked her to share a class because the" class was
too large. Hence, in the next week in September the grievor
worked four days. The folloHing week, the week of September 25th
hey part of the shared group became her class. Mr. McGowan gave
her this class and thereafter the grievor taught for three or
four daxs a week with a substitute teacher taking the fifth day.
This arrange~ent was unsatisfactory and McGowan asked the
grlevor to take the class on all possible days after that. The
grievor worked a substantial number of weeks from October 1978 to
October 1979 wherein her total days work were five and her hours
worked were fifteen. These tigures become important because of the
provisions of the collective agreement.
The parties filed a list of hours and days worked for
each week by the grievor. The Board attaches that as an appendix
to this award.
;:.......--
. .
'.~:.i
4.
On or about December the 1st, 1978 the grievor entered
into a verbal agreement with the Employer to teach three hours per
day, tweive hours per week until March ]~, 1979.
In actual fact,
::
for many of the weeks in that period, the grievor exceeded twelve
hours per week.
The parties agree that the period between December 1977
and September ll, 1978 is not in issue.
At all material times the grievor was paid as a teaching
master teaching in the adult education division, Level II.in English
and Mathematics.
The grievor did not however receive benefits under
the collective Agreement.
"
After her termination the grievor advised the Employer
she did not consider herself discharged and requested pla~ement in
t~J vacant positions for which she was qualified.
In response to this, the Employer indicated by a letter
from the president of the College, Mr. Rawson, that thegrievor
was properly terminated. That letter is important with respect
to the College's position and it reads as follows:
"I have reviewed the facts surrounding your grievance
dated 1979 10 l7, and it is clear that on a number of
occasions you worked in excess of the range of hours
per week for partial-load teachers as outlined in the
Academic Memorandum of Agreement. We therefore have
addressed ourselves to what your status would have been
if we had reviewed ahead of time the various teaching
assignments you have aqtually conducted during the whole
of your period of employment with the College.
;.;.~'-
.-,.' '
-:~;j
5.
It is our Vlew that during the 6 months of July and
November, 1978, and February, March, June and July,
1979, your employment would have been considered
"full-time sessional" since during those months you
taught in excess of the part~al load limit for a
period of more than 15 days in each of the months
mentioned. l'le believe that "full-time sessional"
is a reasonable classification for those 6 months in
the light of Article &.01 bf the Collective Agreement,
which indicates how an employee may accrue seniority
when employed on a full-time, but non-continuous basis.
During the remainder of your period of employment, you
would have been classified'as a.partial-load teacher.
Since the College's normal practise is to pay full-time
sessional teachers based on an annual salary rather than
hourly rates, we will ensure the necessary financial
adjust~ents are made to reflect the above conclusions.
In addition, we will reimburse you at an hourly rate for
those hours about which there is some discussion as to
whether or not the work was properly authorized.
The college considers the tWQ week notice period appropriate
in view of the fact that you would have been considered
either as a sessional or partial-load eMployee."
"
The parties agree that during the period when the Employer
cor:sidered the grievor as a sessional employee, she was compensated as
if she was a teaching ffiaster, a step on the salary,grid except that
she did not recelve any of the benefits provided by the Cdllective
Agreement.
.f
The grievor, on cross-examination, was questioned by the
Employer's counsel with respect to those weeks wherein she worked. less
than five ~ays. The grievor had several different reasons why she did
not work five days for most of those weeks.
In some instances the
reason was because a statutory holiday fell within the week. In
other instances the grievor did not work because of illness or death
in the family.
In one instance she did not work because it was a
""--~^""-""'~-~:'."'""7;:WP"--'l\"'.""i<'.'~"w'<'""_'~"r;;;:"!!~~'t'?\.,.,...,,"~"-.
-'~:'~-..:
'6.
professional development day at the college.
In other instances'
the grievor took time off for personal reasons including both
extension o,f vacation and religious hol-iday.
,"I ,-:~~;~
The grievor testified that she had no difficulty in
getting time off when requested. However, during the month of
-September, 1979, the grievor was told by her co-ordinator that her-
hours were too high and that she wassuppos~d to ta~e off one day
a week. Hence for the weeks in September of 1979 the grievor
worked only 4 days per week.
It should be remembered that the co-ordinator is a
member of the bargaining unit. The grievor testified that she was
paid mo~thly and that on occasion she had t~ouble rationalizing
h~r pay with the hours worked. She indicated that her pay cheques
were wrong at least twice and perhaps four times. However she said
the normal pay cheque matched her work.
Finally, the,grievor indicated that her class was her
responsibility. She did however indicate that she would teach one
-) --~-"'&l
hour English and two hours Math to her class and then a second person -
would teach two ,hours English and one hour Math to'the same class.
Nevertheless, she was responsible for the progress and records
of her students. She also planned her own curriculum.
.,
The Union argues that since October of 1978 the grievor
was employed as a full time teaching master.
-.... "
.,,, i
......,/.
7.
Mr. Nabi indicated" that there were six types of " employees
who worked in teaching capacities at the college.
~'-."i;;~'
The first type of employee he classified as a part-time
employee and that vas an employee who worked six hours or less per
week. That employee is excluded from the operatio~ of the collective
agreement by article lOl of the agreement, the recognition clause. ·
The second type of employee according to Mr. Nabi's
breakdown was a sessio~al employee. That employee is also excluded
under the recognition clause of the collective agreement. A
sessional employee is defined in appendix three of the collective
agreement, section lea) as Ita full-time employee appointed on a
session~l basis for up to twelve full months of continuous or non-
continuous accumulated employment in a 24 calendar month period.>>
The third type of employee is a sessional probationary
employee. Under the append~x just quoted a sessional employee ~ho
stays on for more thq.n the l2 full months goes into the probationary
stream. That result is set out in section l(c) of the appendix."
'::~'{~"'y,-
The fourth class of employee is a full time probationary
employee. Under the provisions of sec~ion 8.0l (a) a full time
employee is on probation until he has completed 2 years continuous
employment. Article 8.01(b) sets out the method of calculating that
-.~. "':
, .~"".~..
8 .
period. It reads:
"ARTICLE 8 - SENIORITY
8.0l (b) Effective September 1, 1976, the probationary.
period shall also consist of twenty-four (24)
full months of non-continuous employment (in periods
of at least one (l) full month each) in a forth-.
eight (48) calendar month period. For this purpose,
only the period after September 1, 1975 shall be .
taken into account or credited. However, an employ~e'~
continuous service acquired in accordance with the
provisions of the previous agreement dated the l7th
day of September 1975f as at August 31, 1976 for the
period back to September 1, 1975 shall count as .
continuous employment or months of non-continuous
accumulated employment for the purpose of this
Sec.tion.
~.;
For the purpose of this paragraph, effective
September 1, 1976, a calendar month in which the
employee completes fifteen (15) or more days worked
shall be considered a "full month"
"\
The fifth category of employee is a full-time employee
described in section 3.03 (a) of the collective agreement. That
Article reads:
"ARTICLE 3 - SALARIES
3.03 (a) Persons who teach thirteen hours or more will be
salaried, the salary range to be determined according
to the proportion that the individual's part-time
teaching load is to the average full-time teaching lpa;.9:
of the department of the particular College concerne~d.--..i'
(This pro-rating of salary does not apply to any full-
time teacher who for whatever reason may at some time
have a reduqed teaching duty of. less thart thirteen
hours per week.)
Effective September 1, 1977 pro-rata salary pay~
ment under this article ~ill be discontinued and the
salary scales as set out in Appendix I will apply
to persons teaching fourteen (14) hours or more on
a regular basis. Persons teaching over six (6) and up
to and including thirteen (13) hours on a regular basis
will be covered by paragraph (b) hereof and Appendix II."
-'~:'" :
\.'~"".~..
9.
Mr. Nabi pointed out that under that provision it is possible for
a full-time employee to work less than fourteen hours per week.
:--'.~ ,~,
The last type of employee is a partial load employee.
That type of employee is described in Article 3.03 (b) of the
Agreement. That Article reads:
,.if' f""'"
"3.03 (b) Persons who teach over'six (6) and up to and
including thirteen -(l3) hours per week on a regular
basis shall be referred to as "partial-load"
employees and shall not receive salary,- vacations,
holidays or fringe benefits (except for coverage of
Workmen's Comp8nsation and liability insurance)
under this Memorandum and Appendix I but shall be
paid fer the performance of each teaching hour at
an hourly rate within the range of hourly rates set
out in Appendix II and in accordance with the other
provisions of Appendix II."
'\
The Union argues that the grievor is not a part-time
employee as she clearly worked more than, six hours per week! There
is no doubt that t~is is the case and indeed the College does
not even suggest that the grievor was a part~time employee.,
The Union also argues that the grievor was not a,sessional
'employe~ as her only appointment as a sessional teacher was for;
~~~."-...~ -
July of 1978. Mr. Nabi argued that a sessional employee mus~ be
appointed by the College as a sessiona,l employee and that that
was riot done. Hence,the grievor could not be a sessional emp16yee.
I
He also argues that the Employer could not appoint the grie~or as
I .
a sessional employee retroactlvely as Mr. Rawson attempted to do in
his letter. Although Mr. Nabi recognized the need for sessional
employees, and recognized the fact that iessional employees c6uld
-'~'0.f
lO.
be appointed for more than one session, he denies any right of the
college to make that appointment retroactively. At this point it
should be pointed out that schedule Iof the College's.Collectiv~ ~
Bargaining Act S.D. 1975, c. 74 section (viii) contemplate~ an
appointment for more than one session.
~ -.;;~~
Mr. Nabi referred the Board to Article 12-.02 of the
Collective Agreement which provides in part that "if requested
by the local Union, the rationale for a sessional appointment by
the College shall be the s~bject of discussion." Obviously, the
Union has some concern in protecting the integrity of the bargaining
unit. ~his section indicates that concern. Mr. Nabi argues that
if the college can rnake' sessional appointments retroactively,
\
Article12.02,would be rendered meaningless.
Mr. Nabi argues that since the grievor is not a sessional
employee she clearly is not a probationary sessional employee.
He, argues as well that the grievor cannot be considered
a partial load employee. He indicates that for a considerable period
~.'
of time the grievor worked weeks where her hours exceeded thirteen.
, '
Indeed, according to his figures for the majority of the time the
grievor worked fifteen hours per week.
This then, according to the Union's position, means that
the grievor can only be considered a full-time employee. Mr. Nabi
says that the grievor should be considered a full-time probationary
. ,
'~
ll.
employee as she had,at the time of release, not yet completed the
period of time set out in Article 8.01 for probation.
~
.The second major point raised by the Union is that the
grievor, being a probationary full-time employee, was entitled to
90 days riotic~ under Article 8.0l (c). Since-she did not receive.;
this notice she was still an employee~ In other words, the giving
of notice was a mandatory condition precedent to a-valid release.
In support of that proposition, Mr. Nabi relies on Re ClP Containers'
2 L.A.C. (2d) 308 (Brown). In that case the learned arbitrator
referred to Re Valade and Eberlee, (l972) 1 O.R. 682. We will refer
to this decision in more detail later.
~
Finally, the Union contends that sinc~ th~ grievor was
not properly released and still remains an employee, she is
entitled to compensation from the time that the invalid release
was made.
Not unnaturally, the Employer disputes the Union position.
Mrs. Murray argues that the Union's argument is based on
a false premise. She says that there are no air-tight compartments
in the Collective Agreement. She says that there are various
ways people can be employed and a person can enjoy a hybrid stat~~.
In essence, this argument requires the Board to find that for the
period of time when the grievor worked in excess of thirteen hours
per week, she was a sessional employee and for the period of ti~e
;,1
-: '" i
~.~"".~..
l2.
When she worked thirteen hours or less per week she was a parti~l
load employee.
-f,
In support of this position, Mrs. Murray breaks the period
of employment down into three separate components. She says that
from September II th to December 30th the grievor \,'asa p:i.rtial -loa~
teacher. During that period of time she worked six weeks over
thirteen hours per week and six weeks under,thirteen hours per
\'leek.
The second period of time is between December 4th and March
31st, 1979. Again, the teacher was a partial load teacher accord-
ing ~oMrs. Murray.
By agreemen~ the grievor agreed_to provide
;
twelve hours per week. During that period of time the grievor in
actual fact worked seven weeks under thirteen hours and ten weeks
over thirteen hours.
The final period of time occurs after March 3lst. There
Mrs. Murray says that a day-to-day arrangement was in effect.
<<.
Mrs. Murray indicates that there can be more than one
session for a sessional teacher. This is contemplated by'the
provis~ons of the Act referred to earlier.
;t
Alternatively, the Employer says that if it is necess.ary
to label the grievor, she is best labelled as a partial load teacher.
Mrs. Murray says that the grievor, on-a regular basis, worked
";.,.. ,J
." ;
.'~"'.:~
13.
between six and thirteen hours. In essence, the Employer says that
the gr iev~r did not work su'fficiently over thirteen hours peL week,
to say that on a regular basis, she was working more than as a
partial load t~ac;:h~r. According to Mrs. Murray's figures, the:
grievor workeq somewhere between 56 and 57 percent of her time at
fifteen hours per week or more. Using the test enunciated- by the
Labour Relations Board in Re SydenhamHospit~~, the grievor fa~led
to establish that she worked the 5/7th ratio in the ~ategory as
set out in that decision.
Mrs. Murray also indicates that all other indcia of
the relationship ind~cate a partial load employee. The grievor
did not receive benefits of the full-time employees. The
" .
Collective Agreement prevents partial load employees from
receiving those benefits. The grievor had a very flexible-
relationship with respect to time off and vacations.
Finally, the Employer argues that even if the_Union'is
correct in all its submissions, the proper remedy tobe.given to
the grievor is damages for failure to give the 90 days notice.
She is not, however, to be reinstated. In' essence$ the College
saying that Article 8.0l (c) of the Collective Agreement is not
a true mandatory condition precedent to a proper release. If
it has been bkeached, the proper remedy lies in'damages in lieu
of notice..
Finally, the College says that if the Union is correct in
all of its submissions, including th~ invalidity of the release
~'~.
.~.
.. ;J#f<~
,._,......,.,-.,-<"",-"".__,,'''"_.'",._,.,"'.?'~_.'...-_M_,.'~., ,,-_,....,~,=~..~:':~~,~.~?t'';j>..'_~~')''''.-~_...,;~.).-,_._O..."''',- ,.
~..'. .: .'
':~.j
l4.
the Board should not award damages until argument and evidence be.
led on the quantum of damage, a9 there will be some difficulty
in calculating damages and seniority. Indeed; both parties asked
the Board to remain'seized'ofthis issue if the need arises and!
accordingly, we propose to say no more about it at this stage of
the award.
." ~."
We are of the view that the grievor cannot be considered
to be a partial load employee within the meaning of Art.1.cle 3.03
(b) as she did not usually teach between six and thirteen hours
per week. The evidence is that the grievor on a regular basis
worked more than thirteen hour per week.
'\
We are also of the view that the grievor is not a
sessional employee as set for in the appendix to the Collective
Agreement. We do not feel.that the.College can retroactively
appoint a person to the sessional status, in Vieltl of the particular.
provisions of the Collective Agreement relied upon by the Union,
i.e., Article 12. Moreover! the Boatd is not convinced that an.
employee should move from one category to another on a weekly
basis as suggested by Mrs. Murray. Rather, we are satisfied that
thegrievor was a full-time probationary employee wi thin the meaning
of the Collective Agreement. It-is also clear that the grievor was
a full-time probationary employee as suggested'by the Union, under
the provisions of Article 8.0l (a).
. .. - '..,.,~--- ,;<-." :,~;j-"" -
--.----
; ,
_,.., :1
.:~,/
15.
The issue that now remains before the Board is wh~ther
the grievor retains that -status because of the improper notification
given to her by the College.
:~.
~..
-.7?>
The Union takes the position that the grievor remains an
employee because the proper notification period as set out in
;;;~,_.
Article 8.0l (c) has not been given. The Union says this is a
true condition precedent to the grievor's termination, and since
this condition precedent h~s not been met, the termination is
ineffective.
The Union relies on on Re ClP Containers 2 L.A.C. (2d)
308 (Brown). In that case the collective agreement required the
'\
company to state in writing the reason for the discharg~. That
requirement was not met and the Board concluded that that requ~re-
ment was a mandatory requirement, and failure to meet it rendered
the discharge nugatory. In so doing, the Board relied on Re Valade
and EberJiee, [1972r 1 O~R.682. Again, -in that case, the court
concluded that failure to give reasons for the discharge as re-
quired by statute~ rendered the discharge invalid.
In our view, both of those cases are easily dlstinguishable
from the pres~nt case. The purpose of giving the reason for the
discharge is to permit the employee to determipe whether and how
he or she should contest the discharge. In this particular case,
what is complained about is the length of notice. The purpose
of anY,notice provision-with respect to the ter~ination of
-'c,.',',:
". ~.., .~.
l6.
employment is to provide the employee with some time in order to
locate alternate employment.
If the notice period is not given,
the normal course of events in any civil action is to award damage~~'
, 1-
Similarly, in the present case, an award of damages would' make tne::~:
grievor whole. The breach of the Collective Agreement is that the
Employer did not give the proper period of notice and can result only
>l>\"clr-'
in an award of damages. That award adequately compensates the
grievor.
Mr. Nabi also referr.ed the Board t.o another decision be-
tween the parties where the question was raised at least tangentially.
However, we are not of the opinion that that case requires a
conclusion that failure to give notice under Article 8.0l (c)
'\
renders the discharge invalid.
The Union also relied on section 65 of the College's
Collective Bargaining Act~ 1975. That section provides in part
that "for the purposes of this Act, no person shall be-deemed to
have ceased to be an employee ... or by reason only of his being
dismi,ssed 'by his employer contrary to this Act or to a collective-
\1' ;-Wf'",-,:
agreement". The Union says that the g:rievor was dismissed contrary'''''
to the provisions of Article 8.01 (c) ~nd hence, because of section
65 of the Act, still remains an employee. However, that argument
overlooks the opening words of the section, "fot the purposes of~
this Act." If an employee is improperly dismissed, the employee
still remains an employee under Section 65 for the purposes of
the Act. It is interesting to note that the Act contains several
-C'~,_,:
l,_.
~ 1
provisions which amount to unfair labour practices under the
Ontario Labour Relations Act~ It is obvious that the intention
of Section 65 is to maintain the employer/employee relationship
ln order that the "err.ployee can maintain his rights under t.he Act.
I;f~'t;
,.J,~,;
t;'.
,;:~:,,:;
However, the section does not require that relationship be maintained
in order that the employee maintain any rights under the collective'
'.$~.~",..
agreement. This section is limited in, its operation by its opening
words "for ,the purposes of this Act."
Since we are of the view that the employer did not give
proper notice under Article 8.01 (c), but since we are of the view
that that giving of ~otice is not a mandatory condition precedent
to the termination of the grievor, we are of the view that the
"\
Union is not entitled to aVdeclaration that the grievor be rein-
stated in her job ar.d be paid for the entire period from the date
of termination. Rather, what the grievor is entitled to is ninety
days pay in lieu of notice-less the adjus-tment for the two-week
written notice previously provided to her by the College. This
award places the~rievor in the sa~e position she would have been
in if the Employer had, in fact, complied,with the notice provisions
of the Collective Agreement.
.t ~~.-
In that regard, the award fulfills
the functions of the Collective Agreement and the most important'
function of any award, that is, to place the injured party
in the same position that that party ~ould have been in if the ~
Agreement had been properly carried out.
~~.".~~,.-.-,
-":'G,j
l8.
As requested by the College particularly, and the Union
In general, the Board will remain seized of the matter in case
the parties have any difficulty in working out the precise amoun~ ~
of money owing to the grievor. ~....
-f.i1:::.p
DATED at- London, Ontario, this
;)l~ day of t~~l I:~.
~
- ~""
W.-B. Rayne , Chairman
II
I concur/di::]:Jcnt.
::r " I-{' f1~ Gw~ "
.J. H. McGivney, Q.C., College
Nominee
I concur/di33ent'
~..~I/'
R. Cochrane, Union Nominee
~i