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HomeMy WebLinkAboutUnion 12-07-09Page I Case Name: Fanshawe College v. Ontario Public Service Employees Union (Nursing Division Grievance) IN THE MATTER OF an Arbitration Between Fanshawe College (The College), and Ontario Public Service Employees Union (The Union) AND IN THE MATTER OF a Union Policy Grievance (Nursing Division); Opseu File #511118; Opseu Grievance No. 2005- 0110 -0118 [2012] O.L.A.A. No. 365 Ontario Labour Arbitration London, Ontario Panel: H.D. Brown (Chair); John Podmore (College Nominee); Ron Davidson (Union Nominee) Heard: October 14, 21 and November 2, 2011. Award: July 9, 2012. (30 paras.) Appearances: Appearances for the College: Robert J. Atkinson, Counsel and others. Appearances for the Union: Tim Hannigan, Counsel and others. AWARD I H.D. BROWN (CHAIR): -- Following the completion of the evidence and submissions of Counsel in the matters at issue as set out more completely in the two previous Interim Awards of the Board dated January 10, 2008 and October Page 2 30, 2009. The Board met in executive session of February 3, 2012 to consider the evidence and the submissions of Counsel with regard to the grievances in dispute between the parties as set out in the prior awards with reference to the terms of Article 2 and Sections 2 and 4 of Appendix V. The Board met in a further executive session on May 24, 2012. 2 It is the submission for the Union as set out in its policy grievances that over a period of four years, there was a significant use and abuse by the College of the use of sessional employees to teach regular and continuous full -time work in the Nursing Division in which there is a significant amount of clinical full -time hours which have been filled by sessional appointments rather than full -time professors contrary to Article 2.03 A. It is also submitted that the individual grievances of Janice Macintosh and Lucy Vermeulen should be allowed as each have taught for more than 12 months in a 24 -month period and thereby should be rolled over to a full -time position. The Union further seeks the creation of 7 new full -time positions in the School of Nursing. References in the collective agreement in the context of these grievances include the following terms: "2.03 A 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 the 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 the community. The College will not abuse sessional appointments by failing 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. 2.03 C If the College continues a full -time position beyond one full academic year of staffing the position with sessional appointments, the College shall designate the position as a regular full -time bargaining unit position and shall fill the position with a member of the bargaining unit as soon as a person capable of performing the work is available for hiring on this basis. APPENDIX V SESSIONAL EMPLOYEES 2 A sessional employee is defined as a full -time employee appointed on a sessional basis for up to 12 full months of continuous or non - continuous accumulated employment in a 24 calendar month period. Such sessional employee may be released upon two weeks' written notice and shall resign by giving two weeks' written notice. A calendar month in which the employee completes 15 or more days worked shall be considered a Tull month'. If an employee completes less than 15 days worked in each of the calendar months at the start and end of the employee's period of employment and such days worked, when added together, exceed 15 days worked, an additional full month shall be considered to be completed." 3 It is submitted that both individual Grievors met the requirement of the collective agreement to be considered as a full -time employee and each should be made whole with seniority and benefits and provided with a SWIF. It is Page 3 submitted that both met the clear definition of Sessional under Appendix V(4) and therefore as they have completed the 12 months' probation period and on the evidence of both, their employment exceeded 12 months in a 24 -month period. It is submitted that the criteria for the application of the relevant terms is 15- calendar days of work in a month which is required and which both performed. Teaching contact hours is not the criteria involved as the provision applies only to 15 or more work days of the individual which constitutes a full month. It is submitted the College abused the use of Sessional employees contrary to Article 2 by scheduling work to avoid a roll over to full -time employment. Alternatively, it was submitted that for the purpose of this Article, the count includes the work days which involve the essential duties required to perform that work as attributed to full -time Professors. 4 As to the claim by the Union of further full -time positions to be created in the School of Nursing, it was submitted that there was significant use of Sessionals who were teaching full -time in each term including the summer and in which some of whom teach a variety of courses. The evidence in its submission shows a consistency over a period of time of the use of Sessionals rather than full -time appointments and there is no evidence of an operational requirement of the College to require the use of Sessionals which is inconsistent and contrary to Article 2. The filling of existing work in the College should be given a preference for full -time positions in accordance with Article 2. The Union's claim is for six full -time positions to be posted, one of which belongs to Lucy Vermeulen but in addition, Ms. Macintosh should be appointed as a full -time Professor. 5 Reference in its submission is made to the following awards: Re Fanshawe College and OPSEU (Shime, February 6,2002); Re Humber College and OPSEU (Howe, April 12,1994); Re Algonquin College and OPSEU (O'Neil, March 24, 2008); Re Fanshawe College and OPSEU (H.D. Brown, January 1987); Re Algonquin College and OPSEU (Bendel, March 1, 1996); Re Sheridan College and OPSEU (Schiff, November 6, 1996); Re Mohawk College and OPSEU (Mitchnick, April 30, 1993); Re St. Lawrence College and OPSEU (Mitchnick, February 7, 1994). 6 It is the submission for the College that as to the two policy grievances filed by the Union alleging a violation by the College of the application of Article 2, it has not been proven by the Union that there were regular full -time continuing teaching positions arising from the evidence. A full -time position of academic work involves more than 12 hours of teaching each week but academic work that is continuously and regularly performed throughout the academic year and is beyond the work for which Sessional employees are engaged to teach in a clinical setting and has over time without complaint by the teachers or the Union. The assignments to the individual? Grievors as sessional does not show work in excess of 12 hours of teaching where they have worked for 12 weeks in one term and ten weeks in the Fall and Winter terms and only sporadically in May and June. Their work almost exclusively involves clinical work in the hospital for two days per week. There is no evidence of any other work of a regular full -time position and there is no other work for the clinic instructors to make that work constitute positions under Article 2.03(a) and (c). There has been no evidence of abuse by the College of Sessional appointments of Clinic Instructors in the Nursing School. Only two individual sessional employees have grieved based on the roll over provisions of the agreement. 7 There are 8 -10 students assigned to a clinical teacher at one time which requires teachers restricted to the clinic setting of one or two days each week of six or seven hours per day for the teachers. The students attend a variety of placements as to the subject matter dealt with and the clinical skills required in the subject areas. The Clinical teachers are needed only for a limited purpose and time and are not required to perform the duties and responsibilities of a regular full -time faculty position. Clinical instructors typically work in areas of their specialty in which they have skills. Regular full -time Faculty under the collective agreement do more than teach but have other duties to perform as set out in their SWIF. Full -time Professors require at least a Masters degree and teach both theory and practical subjects having a facility as well to teach beyond these programs. In addition, they are involved in a number of other activities at the College including preparation of course material for all courses including Clinical and attend a variety of meetings as required in the community as well as other responsibilities relating to the Ministry of Health. Full -time professors teach 12 hours each week but in addition have complimentary functions and are available on a continuous basis at the College except for their vacation time. They do not have a March break and do very little teaching in May and June but are fully engaged and annually employed. Sessional instructors at the School of Nursing are limited to teaching in a clinical setting and do not develop the teaching material but just deliver the courses as assigned. They have no other Page 4 responsibilities at the College other than teaching. Their function ceases when their contract is over and do not work during the breaks at the College in March and Christmas. 8 It was further submitted that the College is not required to hire a regular full -time employee who would be under utilized as to the work required of Clinical Instructors who do not carry out a variety of academic functions in addition to teaching and do not have regular continuous teaching positions to which a preference would attach as set out in Appendix V. The duties of a full -time position include much more than teaching with the combination of other academic work and not requiring a workload of 44 hours per week. This is contrasted to clinical sessional appointments in which the incumbent supervises 8 to 10 students for 13 to 14 hours a week for 15 weeks in a term. Summer work is not continuous and is not necessarily available but is only assigned as required in any year. Therefore it is submitted that it should be found that none of the work of the clinical instructors fall within the definition of regular full -time teaching positions under the collective agreement. There is no evidence of requirement at the College for continuous full -time work as a Clinic Instructor and no evidence of any other use of the time assigned or under contract with them as their contracts are time limited and not extended to a full academic year. The evidence does not establish the requirements of regular full -time positions by only a series of sessional contracts. The Union failed in its submission to show any full -time position existed which should be posted and filled by the College. It was submitted that the Union did not establish that the College was in breach of the collective agreement in these circumstances and therefore each of the grievances should be dismissed. 9 The submission of the College concerning the two individual grievances filed in this matter is simply and directly put that to complete a full month requires actually work of 15 or more days where the employee has been assigned to perform work. It is not sufficient to rely on the period of employment in the contract but rather in the calculation involves 15 days which are working days of actively performed work by the Sessional employee. In context of the consequences of a roll over to a full -time position following a completion of 12 months of probation and without a necessary application for a position would have significant consequences for the College. Therefore it should be found that the requirement in the application of the collective agreement is 15 of more days worked not simply a calendar month of 15 days to be computed for the purposes of a rollover to become a regular full -time employee who could have up to 14 teaching hours per week which would be required to replicate a full -time weekly schedule of teaching. There was no evidence to establish that the Clinical placement of Sessional employees for two days each week was made to prevent a rollover of the Clinical Instructors. It is the position of the College that a calendar month for the purposes of this Article is 15 or more days worked to equate with one full month and neither of the Grievors had performed full months of Sessional work to meet the roll over requirements within the meaning and application of Articles 2.03 A and C. 10 The Board has carefully considered the extensive evidence presented by the Union with regard to the Union's Policy Grievances as well as the submission for the College on this issue and conclude that the evidence does not meet the requirements of the collective agreement to establish the basis for an appointment of six additional full -time positions. The Sessional employees of reference in this regard have been and are employed in the nursing clinic and are limited in their instruction and requirements to the conditions contained in their contracts of employment under which those sessional employees have not and will not be required to perform the courses and take on the responsibilities attributable to a full -time teaching position. The evidence shows the limited, although important, requirements of these employees in the nursing clinical settings which work is their sole responsibility and for which they have been hired to perform. We find therefore there are not full -time positions within the requirements of the collective agreement. 11 We find that evidence clearly supports the submission of the College that these Sessional appointments applicable to clinical instruction are for a limited time and responsibility in their clinical instructing positions and they have no other responsibilities in the College other than their clinical duties and which are required within the specific periods of time set out in the contracts of employment. Further, on the evidence, the Board finds that the College's operational requirement within the meaning and application of Article 2.03A is not applicable in the strict application of the terms of Sessional employments. Page 5 12 We find on the evidence that the Union has not established a violation by the College of Article 2.03 A and is not required to post for or create seven additional full -time teacher positions. The Board therefore dismisses both Union Policy Grievances filed in this matter as referred to above. 13 Janice Macintosh has been employed both as a Partial Load and Sessional employee by the College as a teacher in the clinical lab of theory and hands -on practice in a clinical setting in the Faculty of Nursing. It is acknowledged that the Grievor has completed one year of probation as a result of her work in accordance with the contracts she entered into with the College within the time requirements of Article 2 and Appendix V. The Grievor having completed the first year of a two -year probationary period and as her Sessional contracts continued which in total established that the Grievor completed the full -time position by exceeding the minimum 12 -month sessional employment in a 24 -month period within the terms of Section 2.03 C. 14 We find that the computation of days worked in a calendar month for the purposes of Section 3, Appendix V are calendar days of employment which are supported by the work assignments set out in the Sessional contracts applicable to the Grievors. As to the application of the terms of this Appendix, it is not necessary, we find, to count the days of employment for the purpose of the application of preference under 2.02 has not been qualified by the parties or thus restricted to only days involving teaching contract hours and the full range of requirements and tests for a full -time position within the bargaining unit by which to fall within the Recognition Clause of Article I of the collective agreement. 15 In that context, we find that a day worked is a day in which the Grievor was assigned the work to be done as a Sessional employee performed for the College. The Board therefore finds on the evidence that the Grievor has obtained a regular full -time position within the bargaining unit. 16 We find that the days worked for the purpose of this requirement under Article 2 consists and is applicable to the work for which the Grievor has been hired as a Sessional employee which by that count of the Grievor's work assignments supports the application of Article 2.03 A thus requiring the College to give preference to the Grievor who has through her work satisfied the terms of Section 3 in Appendix V. 17 For these reasons, the grievance of Janice Macintosh is allowed. 18 Lucy Vermeulen has been employed as a Partial -Load and Sessional employee as a Teacher in the clinical setting for the College. Having regard to the application of and reasons for the terms of the collective agreement as referred and applied in the grievance of Macintosh noted above, we find that Ms. Vermeulen who had by agreement completed the first year of the probation period and was continued in employment by the College with Sessional appointments in a period exceeding the 12 -month criteria. As well, the Grievor's appointments of employment continued and met the conditions of the collective agreement for a full -time Teacher within the terms of the collective agreement. 19 For the same reasons set out above, we find that the Grievor was continued in employment for a term exceeding the terms of Appendix V and met therefore the probationary requirements and had completed more than 12 months in a 24 -month period. 20 In considering both of these grievances, the Board has found that the Grievors exceeded the sessional employment requirements of the College beyond 12 months in a 24 -month period which then in accordance with the collective agreement supports their claims as full -time teacher. The College thereby was in breach of the applicable terms of the collective agreement. The Board is not persuaded on the evidence that the College had in the relevant periods of these grievances an operational requirement for the use of Sessional appointments of these Grievors. 21 In considering these grievances, the Board has reference to the awards Re Mohawk College (Mitchnick, April 30, 1993) and Re St. Lawrence College (Mitchnick, February 7, 1994) which support the method of counting as days of employment as the meaning of days completed or worked. Page 6 22 For these reasons set out above, the grievance of Lucy Vermeulen is allowed. 23 The Board reserves its jurisdiction to determine any remedial issues arising between the parties as a result of this award. Dated at Oakville this 9th day of July, 2012. H.D. Brown, Chair John Podmore, College Nominee Ron Davidson, Union Nominee PARTIAL DISSENT 24 JOHN PODMORE (COLLEGE NOMINEE): -- I must dissent from the Chair's decision upholding the individual grievances of Ms. Vermeulen and Ms. Macintosh 25 With respect, I find the Chair's reasoning on these two grievances to be flawed and very difficult to comprehend. In my view, the individual grievors did not show that they had crossed the threshold set out under Appendix V, sections 2, 3 and 4 because they did not show more than 12 "full" months of Sessional employment in which each had "completed 15 or more days worked ". Generally they were assigned to work two days per week during their Sessional contracts and did not therefore meet the "15 or more days worked" test on the plain meaning of those words. 26 The Chair's award states in regard to Ms. Macintosh case (at page 10): It is acknowledged that the grievor has completed on year of probation as a result of her work in accordance with the College... 27 In connection with Ms. Vermeulen's grievance the Chair's award states (at page 11): ... we find that Ms. Vermeulen who had by agreement completed the first year of the probation period ... 28 With respect, these statements are incorrect. At no time during this hearing did the College acknowledge or agree that either grievor had completed any part of the probationary period towards the achievement of regular full -time employment under Appendix V; quite to the contrary, the College disputed the grievors' claim that they had completed the first year of probation because they had not completed more than 12 full months of Sessional in a period of 24 calendar months, and this was the main point of contention in these two individual grievances. John Podmore College Nominee PARTIAL DISSENT 29 RON DAVIDSON (UNION NOMINEE): -- I concur fully with this Award in regard to the upholding of the grievances of Janice Macintosh and Lucy Vermeulen. 30 I must however, take issue with the reasoning for the denial of the Union grievances. The evidence clearly showed, that there were full time professors who taught just clinical courses in certain terms. Therefore, it is my respectful submission, that it is irrelevant, whether Sessional employees were or were nor performing duties, other than clinical. Full time work was being taught by Sessionals and this was a violation of Articles 2.03A and 2.03C and should have resulted in the upholding of the Union grievances. Page 7 Union Nominee Ron Davidson. qp /e /glspi