Arbitrator says worker should have known better
Peter Kuzyk, represented by his union the Ontario Public Service Employees Union (OPSEU) Local 732, filed a grievance against Cofederation College demanding payment of punitive damages.
According to Kuzyk, the employer failed to provide a standard workload form (SWF) more than six weeks prior to the commencement of a teaching assignment as required by the collective agreement.
In addition to punitive damages Kuzyk further demanded a penalty for the union for the employer’s failure in this aspect.
The employer, however, asserted it never made the assignment in question and therefore no SWF was required. The employer added that in any event, no punitive damages or penalty is payable in this case.
In April 2014 Riley Burton, the new chair in Kuzyk’s program, spoke with Kuzyk about course CE 208.
Since 2010, Kuzyk and two other employees were given a one-week field assignment in the course. According to Kuzyk, Burton came to him to tell him he was going to receive the one-week assignment as he had in previous years.
Kuzyk said he was told he had not yet received a SWF relating to that course because of an administrative oversight.
Burton, however, testified he made no commitment to assign Kuzyk to course CE 208 in April 2014. He simply sought information as to how the course had been assigned in the past.
Following the conversation with Burton, Kuzyk began preparing for the CE 208 assignment.
On April 23, 2014, a program coordinator spoke with Kuzyk about a separate matter. When Kuzyk mentioned he still had not received a SWF for the assignment, the co-ordinator informed him that administration decided an outside survey firm would deliver the field work for that course.
Kuzyk and OPSEU claimed the assignment was made to Kuzyk during that April 15 conversation.
Because no SWF was issued more than six weeks prior to the scheduled commencement of the assignment — as required by the collective agreement — the union argued there was a past precedent for paying compensation in accordance with the "snow formula" when SWF forms were not provided in a timely fashion.
The employer, however, argued no assignment was made. It also asserted that even if an assignment had been made no penalty should be awarded.
The employer argued the snow formula referenced by the union arises in different circumstances — when the employer was found to have been repeatedly guilty of the late issuance of SWFs — and should not be applied in this case.
Arbitrator Norm Jesin agreed, saying, "In the circumstances described… I am unable to find that an assignment was made to the complainant. Mr. Burton was very adamant that he made no commitment to assign the work and although the complainant may have fell under an expectation that he would receive the SWF, I am unable to conclude that Mr. Burton was not telling the truth."
Jesin found Kuzyk chose to prepare for the course without a confirmed delivery of the SWF and without confirmation from any number of other sources in the program.
"The complainant had had the same assignment since 2010 and so the amount of preparation should have been far different in 2014 than in 2010," Jesin said.
"The evidence presented in my view does not allow me to conclude that the complainant suffered any real loss from his presumption formed on April 15 that an assignment had been made."
As a result, the grievance was dismissed.
Reference: Cofederation College and the Ontario Public Service Employees Union (OPSEU) Local 732. Norm Jesin — arbitrator. Wallace Kenny for the employer, Bert Dube for the union. March 30, 2015.
