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HomeMy WebLinkAboutBrdar 09-06-18 05/15/2009 10:59 519-579-5033 INNOVATIVE D. "UTES PAGE 04/12 IN THE MATTER OF AN ARBITRATION BETWEEN; ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR ACADEMIC EMPLOYEES) (hereinafter called the "Union") - and- ONTARIO COUNCIL OF REGENTS FQR COLLEGES OF APPLIED ARTS AND TECHNOLOGY IN THE FORM OF SHERIDAN COLLEGE (hereinafter called the "College") - and- GRIEVANCE OF G. BRDAR OPSEU File No. 724404 (hereinafter the "Grievor") BOARD OF ARBITRATION; Richard H. McLaren Ed Seymour Jacqueline Campbell Chairman Union Nominee College Nominee COUNSEL FOR COLLEGE: Brenda Bowlby COUNSEL FOR THE UNION: Esi Codjoe (as to 7 Feb. & 25 Nov.) Sheila Riddell (as to 2 April & 12 May) HEARINGS in RELATION to this MATTER WERE HELD at OAKVILLE, ONTARIO, ON 7 FEBRUARY 2008,25 NOVEMBER 2008,2 APRIL 2009 AND 12 MAY 2009. 06/16/2009 10:59 519~fi79-5033 INNOVATIVE D' 'UTES PAGE 05/12 AWARD Gordon Brdar holds a Bachelor of Mechanical Engineering from Ryerson University and is a qualified member of the Professional Engineers of Ontario. He also holds two certificates and one diploma from Community Colleges and two diplomas from industry and is a member of the Project Management lns!i!ute of North America. He has worked as a project engineer in industry since first graduating from Ryerson through to the present. In 2002 he began teaching at Humber College where he had taken the Project Management Certificate Program and at the request of his professor had assisted in the design and development of a course for that program, In 2005 he started as a sessional instructor at SheTidan COllege teaching in the School of Applied Computing and Engineering Sciences (ACES). His first contract was for 18 teaching hours for fourteen weeks in the Fall of 2005. In the Winter of 2006 Mr. Brdar continued to teach by replacing John Salisbury who was on leave. In that term he taught 15 hours per week for seven weeks_ In the summer he taught 11 hours per week for 7 weeks and then 14 hours per week for an additiOnal seven weeks. In the Fall of 2006 he had 23 leaching contract hours per week, well above the limit in the Collective Agreement for a full time professor. Mr. Brdar maintained this teaching ioad for fourteen weeks. For the Winter term of 2007 he was to teach 15 hours per week for 14 weeks. It is during this assignment that the disputes under consideration arose in this matter, During the Winter semester of 2007 Mr. Brdar completed 12 months of sessional employment within a 24 month period. He discussed this roll over matter with Michael Arthur, the Associate Dean of ACES, He wanted to become a full time academic employee of the College_ When that did not occur he filed his first grievance on 26 April 2007 (hereafter "the roll over grievance") requesting that he be declared a full time employee with one year of probation completed. The employer responded to that grievance by way of letter dated 11 May 2007 and 2 06/16/2009 10:59 519-1)79-5033 m~jOVATIVE D' "UTES PAGE 06/12 confirmed that the Grievor had become a probationary full-time employee as of 2 April 2007 and had completed the first of a two year probationary period in the role of Professor in the Mechanical Engineering program of ACES. The same letter then purported to be notice of layoff because "there is not a full-time faculty position available in the program and, had there been a vacancy, you do not meet the minimum qualifications for a full-lime faculty member in that program". The letter went on to give the 90 days notice of layoff required by the Collective Agreement, This action was the subject of a Second grievance dated 16 May 2007 (hereinafter "the layoff grievance") in which it was alleged that the layoff is improper and issued contrary to the Collective Agreement. The requested relief was the recisson of the layoff notice and receipt of the workload assignment as outlined in the contract with retroactive payment of all saiaries, benefits and seniorily together with interest on monies owed and entitled to, but not paid. The Step Oha Response to this grievance alleges that It is in arbitrable because the Grievor was a probationary employee at the time of layoff and, in any event, the lay off was in accordance with the Collective Agreement per Article 27,021. The Step Two Response by the College took the arbitrability point one step further and asserted that Article 27.08 A required that the grievance state the positions occupied by full-time and non-full-time employees over which the employee claims enlitlement to displace. This oversight was alleged to be a defect which made the grievance inarbitrabile. To further support that positioll it was noted that a probationary employee, the status which the Grievor held, may not grieve layoff, release or dismissal. It was also noted thaI there was no vacancy in the program for a full time position for which the Grievor had the minimum qualifications to occupy and teach.. A third grievance (hereinafter "improper salary grievance") was filed on 3 July 2007 alleging that there had been improper payment of salary and sought proper placement on the salary grid. The College maintains that he has been properly paid. The first day of hearings was spent unsuccessfully trying to settle the grievances. At 3 06/16/2009 10:59 519-679-5033 INNOVATIVE p- ~UTES PAGE 07/12 the time of the second day of hearings counsel for lhe College raised several preliminary objections, They were: i) a probationary employee has no right to grieve notice of layoff; ii) even if they did, the grievance alleging improper lay-off fails to fulfill the requirements of Article 27.08 A by naming occupied posItions; and, iii) any assertion of bad faith Is objected to because it was not mentioned in the grievance. These preliminary objections are better dealt with in the course of dealing with each of the grievances rather than at the outset for the objections do not relate to all of the grievanCes. DECISION Grievance #1; Roll Over The College submits that this was an inadvertent roll-over but it was acknowledged that it had occurred and thus, the grievance is moot. The College letter of 11 May 2007 acknowledges that as of 2 April 2007 the Grievor became a probationary full-time employee. Therefore, this aspect of the first grievance no longer needs to be decided and is moot. The Greivor was a full time employee as of April 2nd and it Is so declared by this award. However, the foregoing conclusion does not conclude the deliberations on the first grievance because it also requests in the "Settlement Desired" that the salary be adjusted appropriately to rellect full lime status. However, that is also the subject matter of the third grievance and is where the issue will be dealt with. Grievance #2: Lav Off The relevant provisions of the Collective Agreement for this grievance are: Appendix #5 Sessional Employees of the Collective Agreement in paragraph #4 states: 4 06/16/2009 10:59 519-Q9-5033 INNOVATIVE ( 'UTES PAGE 08/12 4. If sessional employee is continued in employment for more tllan tile period set out in paragraph 2 of this Appendix, sllch an employee, shall be considered as lIaving completed the first year of the two year probationary period and thereafter covered by the ol/Jer provisions of the Agreement. The balance of such an employee's probationary period shall be 12 full months of continuous or non-continuous accumulated employment during the immediately following 24 calendar month period. Article 2 Staffing provides in 2.03A of the Collective Agreement that: The College will give preference to the designation of full-time positions as regular continuIng teaching positions rather than sessional teaching positions including, in particular, positions arising as a result of new post-secondary programs subject to such operational requirements as tile quality of the programs, enrolment patterns and expectations, attainment of program objectives, the need for special qualifications and the market acceptability of the programs to employers, students, and tile community. TiJe College will not abuse sessional appointments by falling to fill ongoing positions as soon as possible subject to such operational requirements as the quality of the programs, attainment of program objectives, the need for special qualifications, and enrolment patterns and expectations. It is the submission of the Union that the Greivor is a good teacher despite the absence of performance reviews by the College. The Union characterizes the grievance as being in the nature of a termination and the Union is grieving not on the basis of a layoff but that it is in effect a termination and not covered by the lay off Provisions of the Collective agreement. In support of this position it sites the following labour arbitration cases. Re Peterborough Civic Hospital & CUPE L. 19 (1990) 11 LAC. (4th) 186 (Emrich); Valley East (City) v. CUPE, L. 6 [20001 a.L.A.A. No. 208 (DaVie); CUPE L. 79 v. Tile Municipality of Metropolitan Toronto, (1998] O.L.AA NO.9 (R.D, Howe, Chair); Inglis Ltd. Bnd Communications & Electrical Workers of Canada, L 595 (1992) 27 LAC. (4th) 146 (Brandt); McRae Waste Management and I.U.a.E, L. 115 (1998) 71 LAC. (4th) 197 (Sanderson). The COllege submits that the appropriate case law is not that of the general arbitral jurisprudence but rather that of the Colleges of Applied Arts and Technology. When that jurisprudenc8 is consulted it is apparent that the use of sessional employees is a well know phenomena at such institutions and It Is accepted that it is permitted under the Collective 5 06/16/2009 10:59 519-'79-5033 INNOVATIVE r 'UTES PAGE 09/12 Agreement. It is submitted that the Grievor was always hired within the provision of Article 2 of the Collective Agreement as a sessional employee when certain types of work are available. The College had no intention to roll the Grievor. When that happened, even if there was a full time position available, which there was not, , the Grievor did not possess the qualifications to be awarded such a position. In support of this position the following community college cases were cited. Fanshawe College & OPSEU (Demopoulos Grievance) an unreported decision of a board of arbitration chaired by Arbitrator Devlin (1997); Humber College & OPSEU (Ciplijauskas Grievance) chaired by Arbitrator Shime (1997); Seneca College of Applied Arls and Technology & OPSEU (Vincent Grievance) chaired by Arbitrator Brown (1998); Fanshawe College & OPSEU (Zurowski Grievance) chaired by Arbitrator Simmons (1997); OPSEU & Canadore College (Mueck Grievance) chaired by Arbitrator MacDowell (1996); Sault COllege of Applied Alts and Technology & OPSEU (Van Slack Grievance) chaired by Arbitrator Brownj OPSEU & Cambrian College of Applied Arls and Technology (Grievor R) chaired by Arbitrator MacDowell (2006); St. Lawrence College & OPSEU (Nutley Grievance) chaired by Arbitrator Mitchnick (1995); Seneca College & OPSEU (Roy Grievance) chaired by Arbitrator Samuels (1988); OPSEU & George Brown College (Ellis Grievance) chaired by Arbitrator Mitchnick (1991); Centennial College & OPSEU (Goodhue Grievance) chaired by Arbitrator Samuels (1989); St. Cla/rCollege & OPSEU (Chesterton Grievance) chaired by Arbitrator Swan (1996); Fanshawe College & OPSEU (Schidowka Grievance) chaired by Arbitrator Brown (1987). The Merits The first issue that arises is one of characterization. What is the appropriate characterization for the layoff grievance? The Union submits that it is challenging the actions of the College on the basis that their action is a termination and it is not being Challenged under the layoff provisions. The College submits that the language of the grievance is couched in terms of the layoff provisions of the Collective Agreemenl and must be considered to be such a grievance. The Board notes that the language of the grievance is couched in terms of being an improper lay off and specifically refers to Articles 2 & 27. The remedy requested is to rescind the layoff notice. The reference to the Collective Agreement in Article 27 brings into 6 06/16/2009 10:59 519-~79-5033 INNOVATIVE \ 'UTES PAGE 10/12 play the provisions of Lay Off and Involuntary Transfer sections beginning at Article 27:05. Articles 27.08A and 27.088 prescribe specific procedures to deal with improper Lay Off Grievances. It can not be disputed that those procedures regarding the naming of positions occupied by full or non-full time employees have not been complied with. Given that no selection from amongst those positions has been made under article 27.08B, it is apparent that the article has not been followed. The answer of the Union to these failings is to say it Is a termination grievance. The case law cited by the Union can be made into a plausible argument to treat the grievance as a termination. However, lhe community colleges in Ontario conduct their bargaining and enter into a Collective Agreement uncfer a different statute than the general labour statute In the province, the jurisprudence for which the union cites. I must have greater regard to the community college jurisprudence than the general principles of labour law because of the different legislative framework from which the grievance arises. The College, in their letter of 11 May 2007, used very specific language saying thatit was giving notice of layoff albeit entering into some reasons as well to justify that <letion, The Collective Agreement provides in Article 27.02 E that a probationary employee, which the Grievor undoubtedly was, "may be released" after the first five months "vpon at least 90 calendar day' written notice". That was accomplished by the letter of 11 May and this very provision was being referenced, although not referred to specifically in the letter. That letter goes on to say that there Is an entitlement to payment at the rate of a full-time faculty member's Salary from the date of roll-over on 2 April 2007 up to the date of the letter on the 11 th of May. There is then the issue of calculation of salary which is the third grievance dealt with below. The College treated the matter as a layoff and the Grievor responded to the actions of the employer on the basis of a layoff and not a termination as is argued. Quite apart from the language deployed at the time by the College and the response by the Unioh, the provisions of Article 27.08 have been found to be substantive and not just proceduraL See the Seneca case, supra. There is a process prescribed because it involves the dislodging of someone from their employment. The Union argues that there 7 06/16/2009 10:59 51q-~79-5033 INNOVATIVE r 'UTES PAGE 11/12 must be a full time position available to be posted because the Grievor was to work until the College realized there had been an inadvertent roll over and his work was reassigned, It is the very assertion in the argument that makes the procedure of identifying persons 01' positions important because others are affected. That being the case, the substantive procedural aspect of the article has been ignored in the processing of the grievance and has become a further reason for upholding the preli'minary objections of the College, In all of the foregoing circumstances there can be no doubt that the Grievor can be laid off and that can be in the form of a release when the employee is a probationary one. For all of these reasons, the Board finds that the College's preliminary objection to this grievance as having failed to follow the procedure of Article 27.08 Is fatal to its pursuit. The Board having reached the foregoing conclusion does not have to determine the other preliminary objections raised by the College. The preliminary objection of the College is up held and this grievance is dismissed subject to the calculation grievance being satisfactorily paid as set out below in the third grievance. Grievance #3: Improper Sa/arv The Union submits that the calculation of the pay owed is flawed both as to how it relates to the roll over grievance and also as to the Grievor's on going entitlement. The College concedes that there is a naw in the process of calCUiating the payment entitlement In the roll over grievance however, given the manner in which the Board has dealt with the other two grievances there is no ongOing improper payment of the monies owed to the Grlevor because of occupying a full time position. The College concedes thatthere is an error in the calculation of the monies owing to the Grievor in that he was initially paid out following layoff on the basis of an error on the placement on the grid. The Board finds that the calculation was in error because of the failure to recognize the P.Eng qualification, When that qualification is factored into the Salary Calculalion Sheet filed as part of Exhibit #3, it means he ought to have been placed 8 05/15/2009 10:59 519-<;79-5033 INNOVATIVE I' ~UTES PAGE 12/12 at Step 10 and not at 7. The Board finds that there has been an error in the calculation of the monies owing to the Grievor. It directs the parties to work out the appropriate adjustment to be paid to the Grievor. The Board will remain seized of the matter and either party can, on written nollce to he Chairman of the Board within 30 days of the date of this award, request that the Board be reconvened to hear evidence, argument and make the determination of the correct amount owed to the Grievor, if the parties are unable to settle this matter within the said 30 days. For all of the foregoing reasons the roll"over grievance is dismissed; the layoff grievancEi is dismissed in part subject to the above orders on the proper calculation of the monies owing to the Grievor and the improper salary grievance is upheld in part and is to be dealt with in accordance with the directions of the Board set out above. DATED at LONDON, ONTARIO THIS 16th DAY of JUNE, 2009. ftliJlIrj X<o Richard H. Laren, C.Arb, Chairman I concur I E!i$$ent "signed" !;d Seymour, Union Nominee I concur I diBBent "signed" Jacqueline Campbell, College Nominee 9