Arbitrator rules dean's process not in collective agreement
A professor at York University in Toronto was denied tenure repeatedly but he eventually decided to take action.
Ken Ogata worked as a tenure stream lecturer in the school of administrative studies since July 2005 and was first considered for tenure in 2008. But because he had not completed a PhD at that time, his application was denied.
Various appeals happened and he was again rejected, but in 2012, the adjudicating committee recommended Ogata tenure without promotion. A senate review committee denied the request and referred the matter back to the committee.
More appeals followed and in 2014, the senate committee reversed its decision and recommended the request.
University president Mamdouh Shoukri’s role was to review all submissions (usually around 40 or 50 each year) and make a final determination on who receives tenure. This power was written into the collective agreement.
When Shoukri handed down his decision to deny tenure, Ogata and the union, the York University Faculty Association, decided to grieve the process and said the decision to “pre-emptively refer the file for a comprehensive review and recommendation before he has any idea whether he in fact required or wants advice, or what he might need or want advice about, falls far outside the bounds of seeking advice, and transforms the exercise into a new level of independent, comprehensive review not provided for in the collective agreement.”
Shoukri testified when a more “complicated” file regarding tenure crosses his desk, he developed a protocol for helping sort out all the details, which included briefing notes prepared and reviewed by his secretary Terry Carter and university provost Patrick Monahan.
During his testimony, Shoukri insisted the notes did not provide recommendations on a professor’s tenure, but merely “time-lines” on the merits of a tenure decision. Carter sent emails to the provost’s assistant during this process, which requested further help on the file from Monahan.
A June 3, 2014, rejection letter was initially drafted by Carter before it was sent to the president and also before he made his final decision on June 20.
The association said involving two non-academic professionals in this process violated the collective agreement. As well, it said there were more inaccuracies in the final decision that Ogata did not have a chance to rebut.
But the decision to deny tenure was mine alone, as per the agreement, said Shoukri. “The fact that I signed it: I believed in every word in it.”
In upholding the grievance, arbitrator James Hayes found the decision by Carter to refer the file to the provost violated the collective agreement.
“In my view, section G (of the agreement’s tenure and promotions policy) does not open the door for a president, as a matter of efficient routine, to permit Ms. Carter to authorize participation of the provost in any case she deems ‘complicated.’ Section G speaks to the president exercising discretion in individual cases,” said Hayes.
The president alone was supposed to make a decision and should not be prejudiced by any other information, according to the arbitrator, and if management found they required more help in the future, “the university must first negotiate such a role for the provost for inclusion in an amended tenure and promotions procedures,” said Hayes.
“The decision of the president set out in correspondence dated June 20, 2014, must be quashed.”
Reference: York University and York University Faculty Association. James Hayes — arbitrator. John Brooks, Lauren Cowl for the employer. Emma Phillips for the employee. Oct. 28, 2016.
