AUFA wins permanent jobs and damages for term academics
Earlier this month, AUFA successfully concluded a long-standing grievance about the mis-use of term staff in the MAIS program. The crux of the grievance was that AU had improperly used or extended limited-term appointments under Article 5 of the collective agreement.
The effect of this behaviour was to make the employment of 9 AUFA members precarious and deny them certain benefits under the collective agreement. The arbitration resulted in a combination of permanent appointments and/or damages paid to the affected AUFA members.
The Grievance
Article 5 outlines when it is appropriate to use limited-term positions.
5.2 A term appointment shall be for a contractually limited period, and shall terminate automatically on a specified date. It shall not carry any implication that the term appointee will be considered for a regular appointment. A term appointment will normally be made where one or more of the following conditions apply:
d. the duties associated with the position are for a limited period and are not expected to be required to be performed after the specified date;
5.5 a. a term appointment may commence at any date during the year. With the exception of term appointments made under 5.2 c, f., and g., a term appointment will not normally exceed two (2) years;
AU repeatedly hired certain term employees, in some cases for more than a decade, to perform work that clearly was not temporary. Hiring these members as term employees made their employment precarious and denied them certain benefits under the collective agreement.
Arbitration and Decision
AUFA filed this grievance on April 14, 2015. After lengthy efforts to resolve this issue were unsuccessful, AUFA moved this grievance to arbitration. Hearings took place in November of 2016, with 5 witnesses testifying and over 150 exhibits submitted.
Arbitrator Andy Sims released a decision in August 2018 that determined:
[T]he ongoing nature of most courses, the proven demand for those courses, and thus the need for people like the grievors to teach those courses, establishes that the need could not reasonably be seen as term limited and unlikely to continue. I find the University’s handling of the MA-IS work demands through the excessive creation and use of term positions violated the provisions of the collective agreement. (pp. 67-68).
Had the agreement been followed rather than breached by the creation of temporary positions beyond the parameters of Article 5, the University would have either discontinued the MA-IS program or else, and this is in my view far more likely, created at least two regular positions for academic coordinators. … On balance, I find that, had the University appropriately created the regular positions I describe, the grievors would have applied for and obtained those positions. (p. 68)
Remedies
Sims gave the parties 45 days to work out reasonable remedies. AU declined to meaningfully engage in discussions of remedies with AUFA for the remainder of 2018.
In March of 2018, Sims mediated a settlement affecting the 9 AUFA members.
While the specifics of the settlements are confidential, each grievor has received some combination of a permanent appointment and/or damages.
AU has also agreed to no longer use term positions in a way that violates the collective agreement.
The Lessons
This grievance holds lessons, both about grievances and about Athabasca University as an employer:
1. Grievances are slow. The contract violations date back as far as 2005. It took 5 years to bring to about resolution after the grievance was filed. The pace of grievance arbitration is hard on grievors. Employers know this and drag their feet in the hope of wearing the grievors and the union down. An alternative to a grievance is taking direct action in the workplace.
2. Grievances are expensive. AUFA spent approximately $100,000 on this grievance (not including staff and volunteer time, which were substantial). AU’s costs were likely higher because their law firm charges more. Whatever AU saved in staffing costs (by violating the agreement) was almost certainly exceeded by its legal bill and the cost of remedies.
3. AU violates the contract. This decision is another example of AU egregiously violating the agreement that it signed. Such behaviour is profoundly damaging, both to the individuals’ affected and institutional morale. This is a pattern of behaviour at AU and you can read about another example here:
4. AU drags out settlements. AU was unwilling to meet with AUFA to discuss remedies following the decision. AU’s executive will not even discuss grievances with AUFA. Consequently, AUFA was forced to return to the arbitrator (incurring additional costs for both parties) in order to get remedies for the members.
It is a shame that AU does not live up to its I-Care values of integrity (which entails “ethics, honesty and fairness in all our actions, engendering trust within our university community”) and respect (which includes “an environment in which every individual is valued”).
Jolene Armstrong, AUFA President