Service time not considered same as inactive employment
A collective agreement provision protecting seniority rights for up to 24 months between teaching appointments at an Ontario university does not mean part-time faculty members remain employees during that time, an arbitrator has ruled.
Part-time faculty members at the University of Ottawa apply for teaching appointments on a semester-to-semester basis, with teaching contracts that spanned the 13 weeks of each semester. Faculty members accumulated seniority points for each course taught and for every year in which a course was taught. Because some part-time professors weren’t always successful in landing appointments each semester, their collective agreement stipulated that if they missed semesters, they would maintain their seniority points for up to 24 months of inactive employment.
On Jan. 1, 2018, the Ontario Employment Standards Act, 2000 (ESA) was amended to provide employees whose period of employment was five years or more entitlement to three weeks of vacation and vacation pay equal to six per cent of their wages. Previously, the entitlement for all employees was “at least two weeks of vacation” and four per cent of wages. The act doesn’t define “period of employment,” but stipulates that the vacation entitlement applies to “both active employment and inactive employment.”
The part-time faculty members’ union said that its members were entitled to the vacation bump if their service time reached five years regardless of whether they received appointments in consecutive semesters because the collective agreement maintained the employment relationship for up to 24 months of inactive employment.
It stated that each member’s period of employment purposes was “continuous and uninterrupted from the end of each appointment/contract to the beginning of the next, provided the time between contracts is less than 24 months.”
The university disagreed, maintaining that each part-time faculty member’s period of employment consisted of the duration of each contract — the 13 weeks of each semester — after which the period between appointments was akin to a temporary layoff. Each new contract was the beginning of a new period of employment, so part-time faculty members couldn’t build up a five-year term of service, the university said.
The association filed a grievance demanding a decision that the collective agreement established that the period of employment for part-time faculty members was continuous if they continued to get new appointments within the 24-month seniority period.
The arbitrator noted that the ESA should be given a “large and liberal interpretation” when it comes to minimum employment standards and the act doesn’t define “period of employment.” However, the collective agreement defined “employee” has “an individual appointed to teach a course” who had “full or joint responsibility for one or more courses” — meaning the work was “obtained one course at a time, one 13-week appointment at a time.”
The arbitrator found that the collective agreement provision addressing seniority provided for the opportunity “to secure future employment through previously accumulated seniority points, not through continuity of employment.” It also didn’t have any layoff or recall provisions, referring to members during the up-to-24-month period as “individuals,” not “employees.”
In addition, the arbitrator pointed out that the collective agreement stipulated that an appointment to teach a course ended on the contract end date and referred to “hiring” to describe the awarding of an appointment.
The arbitrator also found that the contracts for teaching a course were not individual bargaining but rather an “expression of agreement between the university and the applicant” under the collective agreement and there was “nothing at law that says hiring under a collective agreement must be for an indefinite period.”
Though the collective agreement allowed for retention of accumulated seniority points for up to 24 months, there was nothing else in it that indicated that employment was continued between appointments, said the arbitrator in dismissing the grievance.
Reference: University of Ottawa and Association of Part-Time Professors of the University of Ottawa. Russell Goodfellow — arbitrator. David Bolger for employer. Wassim Garzouzi, Julia Williams for union. April 14, 2020.
