Sabbatical leave protected by overlooked article

Professor's leave of absence protected after all, arbitrator says

If Mount Allison University is unhappy with his decision, arbitrator George P.L. Filliter ruled, the institution can voice opposition at the bargaining table.

Filliter found the Sackville, N.B., university in violation of an article it overlooked in collective bargaining when it postponed the sabbatical leave of one of its employees, Richard Hudson.

"It is clear to me this interpretation may not be satisfactory to anyone but the grievor," Filliter said. "Therefore, the parties will have to address the issue… in the next round of collective bargaining."

The Mount Allison Faculty Association filed a grievance on Hudson’s behalf when the university deferred his sabbatical leave. In October 2012 Hudson, a faculty member since 1985, was declared eligible for leave for the 2013-2014 academic year.

In November 2012, Hudson was notified his sabbatical had been postponed for one year. Both parties agreed the reasons for the postponement are not at issue.

Between the years 1993 and 2008 Mount Allison University employed a policy requiring mandatory retirement at the end of the academic year following a faculty member’s 65th birthday.

The 2002-2006 collective agreement added a clause that prevented the university from postponing the sabbatical leave of an employee within two years of retirement. This clause was meant to ensure an employee returned from sabbatical leave for at least one year of work before mandatory retirement.

The mandatory retirement clause was eliminated from the 2007-2010 collective agreement. In its place was an article defining the "normal retirement date" as the last day of the academic year in which a faculty member turned 65. No changes were made to the clause concerning the deferral of sabbaticals when mandatory retirement was abandoned in favour of the normal retirement date.

Hudson’s normal retirement date was June 30, 2013. Hudson argued he had been found eligible for a sabbatical leave at a time when he was within two years of normal retirement and therefore protected by the clause.

Hudson argued the elimination of mandatory retirement did not result in any changes made to the clause protecting sabbatical leave. He submitted the clause now applies to the normal retirement date, protecting the sabbatical leave of faculty within two years of their 65th birthday.

The employer argued the sole purpose of the clause was to guarantee faculty returned to work for at least one year following a sabbatical and before mandatory retirement. With mandatory retirement no longer in effect, the university said, the clause is no longer applicable.

Furthermore the university argued Hudson was declared eligible for sabbatical leave in 2012, the academic year in which he turned 65. This would mean his leave, if not postponed, would have taken place the following year after his normal retirement date.

This time frame subverts the clause — initially applied to ensure faculty took sabbatical leave at least one year before mandatory retirement — and allows the university to postpone Hudson’s leave.

Arbitrator Filliter, however, disagreed with the university’s assessment. He stated both parties were obviously aware the elimination of mandatory retirement required a change to the clause protecting sabbatical leave but failed to amend the collective agreement at the time of bargaining.

"The elimination of mandatory leave allows employees to work beyond the age of 65, but the parties recognize 65 as the normal retirement date," Filliter said in his decision. "In so doing, I conclude they must therefore have intended to continue to protect employees granted sabbatical leave within the last two years of normal retirement. If the employer did not intend to provide this protection, or put another way, did not want to be prohibited from postponing sabbatical leaves of such employees, the collective agreement should have been amended."

As a result, he concluded the university violated the contract.

Reference: Mount Allison University and the Mount Allison Faculty Association. George P. L. Filliter – arbitrator. Richard Petrie for the employer, David Mombourquette for the union. April 17, 2013.

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