HomeMy WebLinkAboutUnion 78-05-24
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IN THE MATl'm OF .fu"l ARBITRATION
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r:A'!SHAWH COLLEGE Or: APPLIED ARTS
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& TECHNOLOGY
and -
THE ONTARIO PUBLIC SERVICE EvlPLOYEES UNION
, Union PoU...9': Grievance'
BOARD OF ARBITRATION:
G..!. Brandt, Chairman
Chris 'fro\'ler. Union Nominee
J.N. Henley)' College Nominee
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APPEARING FOR THE COLLEGE:
C.G. Riggs, Counsel
P. T. ~.jyers '
N. Prokos
'J
D. Forrest
APP&'\.RING FOR THE mum~:
ltichard Nabi, Grievance Officer
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The heaTing '-::15 held in TOI:'onto, Ontario on April 6, 1978.
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AWAitn
This' is a Union policy grievance relating to a number. of
issues concerning vd:cation and holiday enti-tlcmen't under the l1emorandum
of Agrc~Jnent concluded between the -College and the Union.
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'file grievance recites as follo~.;:;:'
"The Union grieves that Fansrewe College h::"1.s,. on various occasions,.
applied the following practices fu"'1d/or has held that i.t is free to
do so:
1. that the vacation period of 1:\";0 r..on:ths for teaching faculty.
IIay be. fragmented and may be considered as equivalent to 21
working days per roc>nth.
2. that .the College, may assign &"1 eleventh month of miscellaneous
du.ties to employees \-100 are not teaching a continuous l2-month
program.
3. that the. College may assign a."1 eleventh month of miscellaneous
duties to a "teaching employee.
.that the College may assign to a librarian' or counsellor frag-
mented yacations of 22 through 30 'WOrking days.
trot the College' may with:lraH notihe of commencel1ent o.f the
vacation period ~fter having given it.,
that the College,. after duly giving notice of observance of
a holiday, 'may'wi~hdra,~] it ~1ith impunity.
that -the College may vlithdr~.; such notice, even Hithlll 3U days
of the obs~rvan~e,. wi.th irnpt.tr'.iV}..
that the College Tllay require -the observance, of a holiday. with
insufficient not~ce,. and do so ~-:ith impunity.
that where Article G: 02 applies to an employee,. the adcli tional
day referred to' is merely a da:j :in lieu rather than an additional
day off.
..10. that "the annual lm.its for teOCi'''1ing hours may be extended. n
At the outset of -the hear.mg the Eo;rrd ...las advised by Counsel on behalf
of tha College, that, al-th:::mgh the College did not intend. to raise any preliminary
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argume..'1t relative to -the jurisdictio;'1 oE the B")aro to hear the grievance, it
neverthcdcss \.;ishes to express some reszrvation as to the form of the gr'ievance.
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r I and as .to the na"ture of the specific m.~:tters there set out. 110re pat't:icularly
it ~";as suggested "tlla:t what' the' grievance f.iought Has a ~er.i.es of advisory
opi::iOi1s, on cer'ta:in issues \-Jhich, although ,~hey IT'.3.y represent differences
t:crt',':N~n .the: parties "to the collective agreemen.t, had not, in some cases)
l~oor;-.e crystalizecl in "the. form of a ~pecific allegation of a ,violation of
the collective agreeriL.::o.n.t. l11a"t such is the case is' eviden.t fro,ll the opening
parS:rraph of "the grievance tvhich alleges that .the College has, "on various
occasions, applied the follOto1ing practises and/or has held 1:hat it is free
'to do so". ~eover it Has admitted by the Union that, '.lith respect to
a n~"'!\l)er of the specific i-tems referred to in the grievance, "there had, as
yet, been no actual violation of the agreement.
A question "thus. arises as -to t-lhether or not the Board ought. to
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ent2rtain grievances which are entll'ely hypothetical and speculative. in
nat:..l.I'e. Although Counsel did not press the point on behalf of the College
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the Eoard is nevertheless obliged to sa"tisfy its~lf thrTt it has jurisdiction
in ::'espact of such TJ'I.attet'~.
Thei ~levant clause of the collec:tive agreement
dealing toJith re.f<.!I'ences .to arbitration is Article 9.03, Step Uo. 2 \.:hich
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provides, inter i"Llia) as fo1loHS:
"In the event &"1y difference a~ising fror.1 the inter-
pretation, application, ad'lli.riistration or alleged
contravention of this agreE'ment has no':: been satisfac1:or-
ily se.ttled tmder the foregoing Griev2..i'1ce Procedure, the
matter sl1.all then... be referred to arbitration as here
in after provided. II
AlThough the ,..-ords "application") "admii"'listrationll) cmd lIalleged contraven'tion" all
refer, as a matter of construction to some course of action vlhich has already
tC:<en place and \...rhich) conseqU2ntly, is the subject of dispute) the t.;ord
1li.:rterpretC1:tion" does not, as a J!l.a..tter of neces-sity, carr')" such a meaning.
In our vieH it is clear that a diffcrenc0. arising from 'the interpretation
of the: itgreement mny. \012.11 il.f'ise in a nyp-::>thetici.::.l and speculative context:
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and, as such, may be the proper subject matter of a grievance.
Moreover ,
-there app~.a:r:. to be some policy r-easons \olhich support the vie~v -that such
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r;:a.t~er rr..ay properly be the subject of grievance and arbitration. If the
on._ly reli,ef tha't may be sought in res'pec.t of an alleged violution of a
coll;c-tive a.gree.nent is retrospective relief either' in the fonn of cOinpensation
for lost earnings or declaratory it may\vell be deficient as a real relief
to the party who suffers from a proven violation. This is mOre particularly
the case where, as here, the issue in dispute concerns the manner by \.:hich
e;nployees way enjoy their vacations or holidays. Once the holiday or the
vacat:ion period has pass:ed it is perhaps of little comfort to a grievor ,~ho has
been irnproper-ly denied his vacation, or holiday' en-i:itlement to obtain his
relief in the form of a declaration that such conduct \'lill not continue in
t the future. It would appear -to be sound, from an industrial relations point
:.. . of view, to attempt as far as ~ssible to anticipa.te problems \,'lmch Jlay
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.:!!'ise and deal wi-th them before they produce some loss. \'Ie therefore
conclude tr.a:t the matters' raised iri. -the grievance are ~tter5 properly
before a board of arbitration.
Although the grievance recites ten separate alleged viOlations
o!' persp-=ctive violations \ole propose, :in .this a\.vard, to treat the grievance
as raising, in effect, five questions. For this purpose t.;e propose to group
toge'ther i terns 1 and I~, ooth of which speak of . .the f)'.a.tte.r of fragmented
vacations; items 2 and 3, l::oth. of \'lhich speak to the question 'of the assi.grurent.
of duties in the elevery.th l:lont'h; i terns 5, 6) 7 and. B, all of \vhich speak to
the question of cancellation of a holiday; i-tern 9 and item 10, each of
;.;hicn referred to separa'te issues. vJnerf! evidence \.:as led t.;i-th respect to
pr'actises \..:hi..ch have occurred and Hhich allegedly constittrte a vi.olation
of 'the collective agreement that evidence Hill b~ referred to.
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to those querrtions in respect of t-Jhich no evidence t:JdS led) and HlUch were
h'\'POth;.:!tical in na.ture,. we shall inter-pret .the agreement rela.tive 'to those
issues havi,ng regard -to the areurr.ents presented by counsel for each side.
~nted Vac<J.tions
He propose to deal first with th~ questions, raised by items 1 and 4 of
the grievance related to the alleged fraementmg of vacations. 'I'he position
of the College t-lith respect to the matter of vacation entitlement is that
it is en.titled to treat a mont}:1 as 21 tolorking days and that, for the purposes of,
scheduling such vacation) it is entitlE..>d to ,fragment or splin'ter tha-t vacation
"into' groups no smaller 1;han U-.1O weeks periods. Thus) according 'to .the College,
it is not obliged to ,'schedule 'the va~tion periOd in such a manner as to permit
)the employee to, enjoy a continuous and uninterrupte~ vacation. As against 'this
:the Union taJ<~'s t~e position' that) w1c1er the ~erm's of the C?llective %crrce,:'l.ent)
the College is obliged to offer an uninterrupted vacation, Hhich JM.y, depe.."1ding
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on 'the classification concerned, be of either one month or -a.;a months dur'ation'
....nd, sc~cc~-.Jly, tl-;.:....t fo:' '~,he p..)'.'p0ses 0.:: det'-J.min:U-';5 .t[.~ dLi.:....tion :,~ c.hox:: .....dcatic1n)
th~ -term r:J~nth should be interrup"ted as calendar mon.th ra-ther .th3n) as 21 t.:orr...ing
da.ys-.
The key' provisions of 'the collective agreement in relation to this
lssue are Articles' 5 _ 01, und 5. 02 t-Jmch' provide) inter alia, as follov}s:
II 5. 01 A me.11ber of 'the 'teaching faculty ~:h0. has
completed one full academic year's sel"'vice Hi-th
the College shall be entitled to a vacatioi1 of
tt-l0 mon-ths as sch~duled by -the College) cxccp t
tha.t a mernber assigned to -teach for an additional
rronth (eleventh rp.onth) over the nom.al te.aching
schedule of the equivalen't to ten I!1cm-ths as part
of a continuous rne.lve mon.th progn_1.i'i1, shall be
entitled to a vacation of one mon-th) as scheduled
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5. 02 A librarian or counsellor'" who has completed
one (1) year1 s ser'Vice ''lith the College shall be
entitled to a vacation of t\-ienty-two (22) \olOrJdng
days as scheduled by the College and to an addi.tion-
al working day of vac.ation for each additional year
of compl(~tcd service up to an a&.~ate of thirty
(30) \\urking days. II '
'1\.;0 separate ques"tions arise in connect ion ,.Ji-th the issue as to vaca"tion
entitlement. First) there is' a ques,tion as to the propE~r meaning to be given
to .the toJOrd "month". Secondly) there is an issue as to wheth~ or .not the
vacation period) howe~erthat is defined) can be fragmented. \'lith respec't
to the first question it may be noted that) nowhere in the collective'
agreemel)t, have :the parties attempted to define the term "month". In such
circumstances it is not . :ipappropriat~ to adop.t as a basic interpretive guide
line, subject to any contrary indications in "the co11ec,tive agreement) the
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dicti~nary defini t~on of "the word. In that regard it may be no.ted that the
Oxford Dictionary defines "month" as calendar men'th. The collective agreement
itseli reveals tha't the parties have, in varmus places, used the term "month",
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''t.;eekll) and "day", and, in the absence, of a contrary. indication, it rray be
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. '"taken "tr-.a"t these terms Here chosen to represent discre-te pel'iods. of "time
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conclusion th:1t .the term Umonthlt) as used in Article So. 01) ought not to be
interpreted as 21 v.JOrking days, as suggested by the College:) is formd in
Irticle 5.02 where the parties have chose.."1 to define. the vaca.tion 'period
for libraL',ians and cOtmsellors in terffi3 of t...'Orking; days rather "than in terms
of a month. Thus "the parties have apparently addressed their minds' specifically
to the Jratter as 'to how the length of "the vacation period should be described
;-:,nd have' chosen to treat me.'1\bers of the teaching faculty (5.01) differently
frem li.brarians and counsellors (5.02). Had it heen the intention of t.he parties
that the term "rronthlf Has intended to be. defined in terms of Horking days it
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might 1Y~ (~xpected, that th~y would have used the language from Article 5.02.
l!.:lv.ing chQS.:ln not .to do !>o it is it fai T t:OIlstructiOl1 of Articlo 5.01 that the
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"teri" lIJnonth" means some-thing other than a period of Horking, clays. In that
regat-.j '.'1-.':~ "therefore conclude -tl13:t th~ ter.m 1Tmonth" me-3ns o:llC'~nd<:tr m:mth.
The second issue raised herein concerns the ql.:lestion as to 't'1hather
or- not this tv:o n-crrth vaca-tion period may be enjoyed in an unint:errupted
fashion. It Has submi-tted by the Union .tha-t Article 5.0'1. speaks of lIa
vaca.tion of ~ mon-ths II ~d trurt that language contemplates a single un-
interrup-ted period of time. Tne College wade a nuTTIber of sub-nissions in
connection 't'lith t}1is J1\3.tter. First it argued that the po"tJers of the
College .to schedule vaca:ticns) set out :in Article 5. 03, are not re::rb:'icted.
Secondly) reference i.'las directed -to ]\..rticle l~. 03 i.-lhich provides as folloi..,ls =
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"l.J..03 'The academic year shall be ten (10) months in
dura-tien and shall) to the extent it be feasible iri .the
several Colleges to do so) be from 1st September -to
the following 30th June. Tne academic year shall in
any event permit year round operation' and Hhere a College.
determines the needs of any progra1'rine othert-Jise) then
"the sChedLlling of a member in one or oo'th of -the months
of lJuly and August shall be on a consen-t or rcrta'tionaJ.
basis. II , .
In connection \4t;.h-t~ti.Ql~Li.~t \.,l~? _sulxni:tted that) i.-Jhile the noma! vaC'..a:tion
period v;ould he enjoyed dux'ing "th~ 'm:m.ths of July and August) :there. may \.Jell be
. occasions t-lhen -the College \vill need to schedule some 'tolorK) \.,lhich fr.ay be for
a period or only a \-leek or "\:i.,'O) in th:i't swrmer period. The College sul::mi:tted
tt:.3.t) \-lhen such assignments CLore nade) thereby cutting into the norntal vacation
period, the College .ought -to be able to sch..Pd\.tle the remainder of the sUmrr..er
period as vacation and to rr.ake up the balance of the e.llployees vacation
entitlement by a further scheduling. of vaoTtion at some other "time.
He conclude that ) as a flatter of interpretation) the collective
ag~ee.merrt: contempl.:rtcs an tmintcrruptcd vacation peri.ocl. l\bt only d09S
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the language of Article 5.01 suppoI1: that interpretation but also Article 5.03
., speaks in the singular of 1:he "vacation pl?..riodu of employees. Other plural
refCl"'eTICCS in Art:i.cle 5.03) viz. "vacationsl1 and ""vacation periods"
appear) in their con-text) to refer not -to the entitlerno..,J1"t of individual.
employees but rather to' the general vaCc.1.tion entitlement of -the group of
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eIT!?loyees. With respect to the argumen-t of the College. ba.secl on Articl:e 4-.03
it may be note~ "tha:t) at least in par1:, assignments of Work made thereunder
are to be on' a consent basis. 'l'hus an ernployee \-1110 ha.c::l so consented to such
an assignraent could not subsequently be heard to complain) :in an individuCal
grievance, if the College were to fragment his vaccrtion accordingly. In
fJI".y event) a recognition of an interrup.ted vacation period under .Art:icle S.Ol,
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does not lU100nnine such rights as too College nay have under Article 4. 03.
The College continues to have the right to assign \o}Ork during the oixlinary
vacation period. However) where such an assigrunent does take place it may
then become. necessary to schedule a vacation ~tperiod during a pc>rtion of .the
academic year. Indeed this is precisely \.;hat occurred .in respect of the
vacation period scheduled for Ht:'. Mike Grum'lell during, the summer of 1976.
He "w'aS ~t'5ibrned~ prcBum=:.bly ::;rJ1"suan-:: 1.:0 Arr ~cle. lL (2) "l..(J v,lC':>k urrti~,- July til.h.
In recognition of -that overlap into the ordinary summer vacation period his
vacation Has then scheduled to -take place from July 8th, 1976 to Septesrber
6th, 1976, that is, approx.i.rT'ately one \-;eek into the next academic year.
T'nerefore) for the reasons indicated, \'le conclude that the
vaca:tion perioo is entitled to be enjoyed uninterruptedly.
~ssignment of Duties in -the Eleventh V.onth
He here address items 2 and 3 of the grievance. In connection \-1ith
this frl.a:ttcr some evidence \olclS led \-lith -respect to an assignment, in July of 1976,
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-t'l~e("ein Hr. Velanoff, a Teach:U:lg f-.1~lste~, wa.s assigned b.lO \.;eey..s of non-
teac."-ri.ng duties dur'ing -the rronth of July. l.far. V elanof f '\oldS not) at that
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! .ti;;,,:,~ teaching in a continuous ttrielve rn::m-th prograra. The grievance alleges
-tha t the College may not assign an eleventh month of du.tics -to employees \01110
cU."'3 no.t .teaching in a continous .twel ve month program and -that -the College
ffi''lY :lot assign &"1 eleventh m::mth of misccll-:meous duties) that is, non-
teac:ling duties, -to a teaching employee.
The Union basis i.ts argument in this respect principally' on -those
provJ.sJ.ons of Article 5.01 t....hich contemplate that a member of the teaching
faculty may be assigned lito te.'lch for an addi.tional rronth (eleventh month)
over the normal teaching schedule of the equivalent to ten mon-ths as pact:
of a continuous .tHelve month prograr:-me ... ".- 'The Union drew p:u:-ticular
reference to the underlined word lIteach" and to the reference ut the conclusion of
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the article to the \.;ords continuous twclv~ months programme". It argued froin this
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basis -that the College Has limited in Ul0 respects in terms of the assigL'.ment
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of -the eleventh month duties. Firstly" it could only assign tE'.aching duties
and secondly, stich dlJ:ties could only_ be assigned .to employees -teaching in a
r:on"tinous t.\~lel \fP: morlth -progrr1.rnrne.
"le find no basis in -the collective agree:uent for this limitation
on -the rights of -the College to assign -the eleventh ronth duties.. Firstly,
it is clear fraIn Article 4-. 03 that the College is entitled -to assign duties
~yond JtU1e 30th and may lIdetermine the needs of allY progr:-amne": Sec::o:ldly,
l\rt:.cle 5.01, upon which the Union relies, is conce~n2d t.Jith defining the
extent of the circumstances under t'lhich vacatio:1s r..ay be enjoyed and canno-t
be -taken as limi:ting the po".-7ers of 'the College -to assign duties in the
eleventh month.
There:r.=ore, for i:hi reasons given, \-12 decline to J.S5ue the declarc:rtion
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r"'" ,. - ' in respect of "the matters raised in items 2 and 3 o.e the grievance.
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, Rescheduling of Holida~s
He ~ere address items 5, 6; 7 und 0 of the grievance. In that
respect \.;e note that, although item 5 speaks of no.tice of commencement of
.the "vaoo"cion periodll we interpre"t tl'k,:t to refer to holidays as contemplated
by P..rticle 6.01.
The issue comprehended by these items arose as a resul.t of certain
events t~hich occurred in 1976 involving Hr. Ross Rachar, a teac~g master.
In Jlli.,e ot 1976, 11r:>. Rachar was provided \o1ith a schedule of events which
. indicated, among other things, th:t.t Decem.lr>..r 29'th, 1976 ,,:ould be a, working
day and that April 11th, E3.ster tbnday, 'Vo.'Ou1d be designC'."lted as a holiday.
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The designation of Easter P,onday as a holiday was done pursuant -to Article
6.01 \-1hich lists nine statutory holidays and two holidays toJhich are character ized
b. . IIEI' "
Y tne parq.es . as ; : oat.ers.
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These are holidays vJhich may be specifi~~
by the College upon at least 30 days prior notice being given by the
College of the da.te of observ';:'.nce. On Nove.~er 30" 1976 H~. Ra.cha.r \-:as
give..; a document, dated Nove.wet> 19, 1976, \-1hich s.tated tha't the floating
holiday previously allocated to Apri.l 11th, 1977 Hould be observed instead
on December 29th, 1976. Hr. Rachar the..Y1 ~.Jrote a meilorandum to th~ effect
that he: chose to ~tick to the originally scheduled \-i'Ork day, December 29th,
a..'1d tp.a"t he t-."Ould be avaiiab1e. to \-x>rk on that day. The College took the
!-x>sition that Mr. Rachar Has required to observe -the holiday on December 29th.
l{r. Hachar spent December 29th marking examination p.:"l.pers at his home.
The Union sub:ni.ts that once the College has specified the day
Oil ~-;ilich the holiday Hill be obser.;ed 'the, employee be.comes entitled -to enjoy
the hol:Ld3.Y on the specified date and -th8 College. has no right to rescind
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" . tha:t Gay. FurthermJ:r:e it \-1as subm:i.tt~d that, \-lhera the ColleE~e refuses to
(. '. 1 kif' eel f \.
'. pC1.1!U:t an E'ifl,? oyee to war' on a day not spec ~ 'or o.uservance on a
.1~}li<.lay and :t>equires instead 'lh8 observancB of .the day as a ,hol.iday, ,such
c'::J:1dll:,:"t co,l:jtittrtes a lockout. Finally,- i.J~ connection "7ith .this matter,
it 'Vk"!.5 5utm.itted that any attempts by the O:>llege to compel the duties on
a roliday as specified under P..l"ticle 6 constitutes coercion rendering the
Co :lege subject .to punitive darn.3.ges. (TIl:lS la'ttcr claim Has no.t advanced in
cn;gur;:en't a't the hearing and the Board proposes to treat it as abandoned).
The College su~.tted that there HaS nothing to' prevent it from
Ch.3.ngL'"".g a specified holiday providing it did so \.lith 30 days prior notice.
;.ioreover, it argued that no'thing in 'the collective agreE'1Ilen"t prohibited the
Co11ege fr'Orn l"equiring employees to \olork on. the holicL"lYs contemplated in
;\rticl.= 6. 01.
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VIe agree Hitl:t the sl.l.b,''llission advanced on behalf of "the College
)\.:i:th respect to its rights to change .the date of obser-vance of a spacified
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holiday providi.."l.g it meets' the notice requirements se"t out in Ar'tic::le 6.0l.
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..'j':I.~se holidays are desigr:atec1 as flo3:t;~s and, in our:' vie\-], it properly
, .f aUs Hi.thin 'the SCO.:.J8 of Ill3ndge.1len"t ,func"tions to determine the precise
(1~,,:te 0:1 ,,:hich those floaters Hill be observed. Nothing in Article 6. 01
iIldic2:i:e$ that the College may not dange its mind :m respect to the date
or obser-..;ance. The reference in Article 6.01 to a 30 day priqr no'tice
requ;'/"'2.:i1ent mmrt be taken., as providing" ernployees \o7ith such protec.tion as
:LS nece3sary so as no"t undu;Ly to frustrate any plans ,...hich. may have. been made
In Y.'cspe:.:t of the enjoyment of a holiday.
The question then becomes one of determining Hhether or n?t,
1.11 resvec"t of the RaChar incident, the ('..allege has complicc1 \vith .the notice
requlr'?ii,2frts. In that respect it becomes significant "to de:termina whether
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'I or not the time clock begins to run as of J'bvembeI" 19th) the date of the
document given to Mro. Rachar, or on November 30th, -the di"~te Hhen he actually
received it. \-]e conclude tha~ the appropriate date must be the one upcm which
th= ~;::;rloyee actuall.y receives no-tice." 'rnis can be the only proper interpretation
c..'O:'lsis'tent \-lith the clear purpose of th::rt provision in Article 6.01. 'It ,.then
becQ1!es a question of deteTInining \.-Jhether or not notice given, on Novembc....r 30th,
in res;;ect of a holiday to be observed on D2cernber 29th is "30 days prior notice".
~'le :Ll1terpret Article 6.01 to require that the 30 days expire prior .to ,the elate on
Hhi~'" 'the holiday is to be observed. .In this particular case the 30 day period
ei':pi.!-ed on DeceII1ber 29th, .the specif1ed date for observance of "the holiday.
'I:'nus, the College did not comply ~oJith .the notice of provision.
The question which then arises is what relief, if any, follows
r from that fact. We ure unable -to conclude that the grievor is entitled .to
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opse:!'Ve the specified holiday on the originally specified date of April 11th, 1977.
Ll'1 respect of that particular date the College ks complied t'li th 'the notice
re.quir~:1lents. 'The more difficult question is Hhetherc or not the grievor can
T~;,.irl't.?;n th::tt DecE'Inber 29th is a Harking clay, that he ros a right to vlOrk on
tl',it day and to obtain compe.T)sation for $u~h wor'k. r.t should be nCJtoo thcTt
Orle ccnseque1'1Ce of concluding that the grieo.;or ~.;ould, in the circu.'"'05tances,
be :pe~Li.tted to treat December 29th as a 'I.'IOr-king rather than a h?liday), t-IDuld
be that' he 'l.vould, be deprived of one holiday to ~oJhich he, as a'member of the
JyJi:'g~-ring unit, is entitled by virtue of Article 6.01 of the agreement.
Tms c:Jpsequence results from the fact tr-.at he is no longer able' to choose
b-.3t.:ee.'1. observing the holiday Oil April 11th or IEcember 29th. \-le do not believe
,that -,;ne b'1....icvor can) in effect) contract out of the holidc~ys to Hhich he,
alo:1g ';,.;ith till o.ther m'2ll1bers of the rergai,ning unit, are entitled lmder .th~
agre~~nt. Of coU['se he nay choose, if he Hishes, to \.y.)rk on tl'at particular
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c.a.y. EOtoleVer, he cannot dCire.nd that, in H\~ event that he 1lldkes such elE..>ction,
the College shoul~ compensate him for. it.
It is ~necessary to deal. \.:li.th those ari:;uments related to the
}xy,.;e::' of "the College to compel the perfOY'l:811Ce of duties on a sta-tutory
or floater h:Jliday. The notice of November 30th, 1976 effecti.vely rescinded
the specification of April 12th as a flo.::rter holiday. Consequently, it is
-to ~ "treated as normal t.x:>rking day on vlhich ejnployees way properly be expec~ted
-to p~form duties.
Therefore we decline "to lssue the general declaration sought by
the iJni.on il'1 respect of -these items. Hm.J'8ver, l"t is, hereby declared that)
o r~spe.ct of the P..acha.t... incident) -the College, did not comply tvith the. 30 day
notice reqtUx'ement.
Enjo~ent of Holidays Falling \>Ji thin Scheduled Vacation Pcriodg
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'The issue raised herein concerns" :the proper ;interPretation to be
g,l:'/e.r: to Article 6'.02. r-t is appropr.t?-tte to se-t out all of Article 6.
"6.01 iu'1 E'.mployee t,;j~l be granted the follot-1ing holidays
0:-. ;:~l~ (~:..'Y CJh t1hi~J1 the {:,:>l.i .l::l.y (,.:~cur5 Jr is ueJ..(,'>b1."a'::t:.":1
by the College Hi'thout reduction of salary:
Net.J Year's Day Civic Holiday
, GoOd Friday labour V:lY ,
Victoria Day 'I'ranksgiving Day'
D0minion Day Christrnas Day
Boxing Day
THO holidays specified by the College, up:,)n a least
thirty days prior notice be~1 given by the College of the
date of observance.
6.02 \'Tnen a 'holiday as'de.fii'1ed in Section. 6..01 falls Hithin
the vaca.tion period of a member of the academ.:i.c stal::f teach-
ing an eleventh month as referred -to in Section 5.01, a
cotmsellop or a. libra.rian, he sra.ll be granted an addit~onal
day off a-t a date designa-ted by the College.
6.03 Vlhen a holiday LlS defL"'led in Section 6.01 falls on a
Sa"tur'Clay or Sunday) .the College sh::1.11 designate a day in
lieu the'C'€of. \I
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llle resis o.f the Union's cc.mplctint in respect of -the administration
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of this Article rray be Lest illustrated by reference to the example. of l1I'. Hike
CrtUl:.;ell. i\l trough the normal divisi.onal vacation p~~riod for 1976 had bef!I1
sch'2:duled to run from JW1e 26th to August 29th inclusive, Hr. Grtml..Jell had,
been assigr..2d to teach a course which con-tinued to run till July 6th, 1976.
O:msequently,it became necessary to schedule 'his vacation around that and
he Has accordingly, scheduled -to take his vacatipn from July. 8th .~o September
6th, 1976.
Since th~ Civic holiday and Labour Day berth fell in that vacation
period the College purported to make, that up by suggesting to Mr. Grunwell
"chat he, take tlPse t~'O days' at a time convenien.t to him bett.;een June 1st and
June "Uth, 1976.- The Col~ege took the vieH that, by so offering, i-t was in
compliance Hith the provision of Article 6.02 accoroing to t.lhich a member of
r
the acadewic staff teaching an eleventh month (as Has the case toJ'ith Mr. Grunwell
on this occasion) is entitled to Ilan additionaUday off" :in respect of such
holidays (defined ill sec-tion 6.01) as they fall within that employee's scheduled
vacation period.
The lTnj OD, )1oweve1"'. take:=> tp'2! J:Osi t5 ':m -tb~t Artir.le 6.02 requ5 """'es
not merely th:>.:t 'the College offer' the employee affected a sUbs-tit ute day., or
a clay in lieu of -the holiday falling \olithin the vacation period. Instead it
argued that in addition -to' suc~a day in lieu the College is requimd. to gr'ru."'rt
"a'1 additiona.l day" Hithin the meaning of Article 6.02.
The practise of the College in grarrti.l1.g a day off in lieu of
C1 haliday ;..;hich falls during a sc~eduled vacation p~riod is one which has beerl
follo:..;ed gei:.erally in respect of all employees and all holidays. TI1US, m
'tIle event tr.a.t an employee might have had his scheduled vacation from
D-~Ct~"'er 15th -to February 15'th, a. period during which Christm:ls Da.y, Ibxine
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. Illy, al1d Ne~v Year' s D~1Y fa1~, he v10uld be given -three days :in lieu of those
!101idays to be enjoyed a:t a time specified by the College. :l"t may be obscr"ved
-lha.t, str.ic"tly speaking, thi~ is an ex gcat:ia arrangement and one \oJhich Article
6.02 do;:!s rlC)"t specificaLly require. In X'-espect of such a practise the Union
does not here claim -tha.t the College :is obliged .to give a further "additionalll
day over <.md ab::>ve -the lieu day. Instead, it claims th3.t" in sort of circUiTlstances
conteIilplated by Article 6. 02 of vlhich the Grunwell case is an example)', the
College is obliged "to go further .than it has as a matter of ex ~atia arrange-
ment.
He are unable to accept -the submissions advanced oIl. behalf
of the Union in respec-t 0 f this issue. The clear purp:::>se of both, Articles
6.02 a."'1d 6.03 is -to e.i'1sure t'ha.t those holidays guaranteed by Article 6.01 w.ay
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in fact be enjoyed. Such would not be -the case where such holidays should happen
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-to fall dur-ing.a time v1hen the employee was not in, fact obliged to Hark) th"lt ~s,
\lhen he was on his va.cation or on a Saturday oJ Suncby~ In such event the
agrcerr.ent ensures that the ernployee w,ill be entitled to observe .the h::>liday
on SOIt.a d2.Y other 'tha..l'1 .the actual celebra-ted day. The Union su1mit-ted that
attentiun shoULd be dl'ac,...m .to the .fact tJ.I....'i:t) \-inet'eels if. Ar ticle 6. C~ J the p artit.$
have spoke'll of a trday in lieutl~ in Article 6.02 the lClOc,ouage used is tlai"l additional"
day" . \'lhile it is -wJ.e "that, clS a ma:tter of construction, th::>se t.1.;Q" expr'essions
must be given so;ne jndependen-t me&"1ing~ vIe do not agree' tha.t th~'t'DrdS "additional
dayI.' in j:ts context requires the construction .nut i.t be a day "in addition -to
-th~ day, in lieu" already provided under .th3 College practise. Instead 'tole take
t1u:t expression to me-an a day off in addi-tion "to SLlch days off as the employee
alrei:ldy has 1>y reason of the fact th:l.t he is at t'hat tme. on a scheduled vacation."
Sight must not be los-t of the fac.t th:-rt Hhere an employee is on vacation he is
r by definition enjoying a day off 't.,ork and all th~rt Ar.ticlc 6.02 requires is
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(',--'that he be given an additional day off to compensate rum for the fac-t tha:t~ were
he r.o't at that t.i.me on vacation) he would have been entitled to .the, day off
by virtue of Article 6.01.
Ther.efore we decline to issue - -the de.claration sought in respect
of the ma:tter of enjoyment of rolidays falling wi.thin scheduled vaca.tion
periods.
Extension of Armual Limited for. Teaching Hours
The question .raised herein concerned the assignment of -teaching loads
of p~....6ns in the adult education area which is a twelve month continuous progra..1me.
rille Board Nas provided t-1ith very little inforrr.ation ond assistance by way of
dcvelopmei.1t of this issue and CouIlsel on behalf of the Union did not press
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r the matter in argument. In any event i-t ,'lould appear that the question as
...
to the meaning and interpretation of those provisions of the agreement respecting
mClxirnl1'TI teaching holIe's is a JIli-ltter t-7hich has beb dealt \--lith in, a prior arbitration
2nd subsequently by the Divisional Court. (Re Niagra College). The m3.tter
Clppears to be e.ccedingly complex and :in the abse..'"1ce of any signifcan-t argument
c.rt all on the issue -tbe Eoard is prepared to treat .tha.t l.ssue as having been
cllxmdoned.
Consequently the declaration sought in respec~ of that matter 1.5
declined.
DATED in London,
~tariothis Z A ~~
G.J,'Bran~tJ Chail~an
- 1978.
I concur/MJU&.'iK
"Qlris Trower"
Chris Trower, Union Nominee
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I concur/UX~~,
"J.W. Henley"
:1. \',z. Henley, College Nominee