Dear AUFA members,
The AUFA office recently received Arbitrator Sims’s decision on the Term Contract Appointments grievance.
This grievance dates back to 2015; it was heard by the arbitrator in 2016; AUFA received the decision in August 2018.
In this grievance, AUFA asserted that there had been violations of Article 5 and the Letter of Agreement, Term Staff.
In this decision, Arbitrator Sims reflects on the vulnerable situation that contract workers face in their employment and their lives due to the precarity of their contractual status, in particular noting the exploitation of “part-time, non-tenured, contingent employees over the longer term, and a recognition that the unauthorized use of such persons, while perhaps getting the work done at a lower cost, can provide a disincentive to create or utilize the more secure regular positions.” Further, the arbitrator sides with AUFA’s assertion that a number of term contracts should have been permanent positions, that from the outset it should have been clear to the university that the work would be ongoing.
The arbitrator has ordered AUFA and the University to negotiate remediation for the affected grievors. Should the parties be unable to arrive at a settlement within 45 days, the arbitrator reserves jurisdiction to settle the matter of remedies.
I have attached the entire decision.
I wish to thank the AUFA office, the legal team, and the AUFA executive who initiated and carried through this important grievance concerning preciously employed academics, as well as the affected individuals who waited very patiently for nearly two years for a decision. This is a very important decision that should serve to help protect vulnerable workers in the future, as it sets a powerful precedent in the legal literature.
Best wishes,
Jolene
Dr. Jolene Armstrong
President, AUFA
and
Associate Professor
Centre for Humanities
Athabasca University
780-378-0023
1-866-301-0942
jolenea@athabascau.ca
ARBITRATION
BETWEEN:
ATHABASCA UNIVERSITY
- and -
ATHABASCA UNIVERSITY FACULTY ASSOCIATION
WITH RESPECT TO A GRIEVANCE CONCERNING TERM APPOINTMENTS
A W A R D
BEFORE A BOARD OF ARBITRATION COMPOSED OF:
Andrew C.L. Sims, Q.C. ....................................................... Chair
REPRESENTATIVE OF ATHABASCA UNIVERSITY
Jessica Thomson.................................................................. Counsel
Krista Morland....................................................................... Labour
Relations Coordinator
Justin Barrie ..........................................................................
Student-at-law
REPRESENTATIVE FOR ATHABASCA UNIVERSITY FACULTY ASSOCIATION
Kristan McLeod..................................................................... Counsel
Nick Driedger ........................................................................ AUFA
Executive Director
Nanci Langford PhD ............................................................. Witness
Angela Specht PhD .............................................................. Witness
HEARD in Edmonton, Alberta on November 22, 23, 24 and 25, 2016
Our file: 7771
AWARD ISSUED on August 7, 2018
AWARD
Athabasca University, as a distance learning institution, employs teaching and academic staff in
ways that are different from more traditional Universities. This grievance is about its use of
Term Appointments, specifically provided for in Article 5 of the current collective agreement
between the Athabasca University and the Athabasca University Faculty Association. The Association
grieves, on behalf of a group of seven employees, alleging that they are, or should have been,
hired as Regular Appointees under Article 3 of the agreement.
The Association alleges that the University has improperly used or extended term appointments when
instead, given the ongoing probability of the work continuing, its obligation was to create regular
positions in their place. The grievance focuses on persons hired to teach in the Master of Arts –
Integrated Studies (MA-IS) graduate program. Two such employees, always in temporary positions,
described their careers; Dr. Nanci Langford, who has been with Athabasca since 1999 and Dr. Angela
Specht who has been with Athabasca since 2005.
Regular (unlimited term) appointments are clearly contemplated in Article 3. Temporary appointments
are contemplated under Article 5. One issue is whether appointments under Article 5 are expressly
or implicitly limited to certain circumstances and whether, if these circumstances do not initially
exist or subsequently cease to exist, a Regular appointment should be made, or may be inferred. No
clauses, except perhaps 3.1.6 and 5.2(i), provide directly that, after a certain length of time, a
person repeatedly or continuously employed in a temporary position becomes, as a result, a Regular
employee (an “automatic conversion” clause). Whether other terms imply that is an open question.
The grievance involves the inherent conflict between three main interests.
1. The University, in maintaining the maximum flexibility in its teaching options, its course
offerings, and its costs;
2. The Association, in providing secure and long-term employment for as many of its members as
possible, and
3. Those faculty members who, while having accepted such temporary or term jobs as were on offer,
now seek a more secure status, after doing much the same work for a significant number of years.
These interests are recognized, but without much assistance as to how they are to be reconciled, in
Article 2.4:
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2.4.1 The Association recognizes the authority of the Board to restructure the academic
programs, activities, centres, and departments of Athabasca University from time to time. This
includes the flexibility to create, add to, discontinue, delete from, and change academic programs
and their support structures.
2.4.2 The Board recognizes the importance of tenure as a protection of academic freedom, the
long-term commitment and value of Staff Members, and their ability to contribute to Athabasca
University in many ways.
The Association argues that the recognition of the importance of academic freedom and long- term
commitment means that regular appointments should be interpreted to be the norm and term
appointments, lacking those protections and advantages, as the exception.
The parties submitted much evidence, spanning more than 15 years, of how the enrollment funded
MA-IS graduate program has been operated, much of it through the use of temporary appointments.
Particular evidence described how and why, during the employment of Dr.
Langford and Dr. Specht, term appointments have been used rather than regular appointments.
This dispute does not challenge the University’s ability to use term appointments in all cases; it
clearly has a contractual right to do so. The University relies on the following quote:
Fixed-term contracts of employment are, of course, legal. If their terms are clear, they will be
enforced …
Ceccul v. Ontario Gymnastics Federation [2001] O.J. 3488 at para. 24
While subsequent case law has qualified this somewhat in situations involving a long series of
fixed term contracts, the basic proposition is still true. The University argues that the words
“term appointment” must be interpreted in the context of the entire agreement, much like the term
“temporary” interpreted in:
Calgary Board of Education v. International Brotherhood of Electrical Workers, Local Union 254
(Martinez Grievance) [2008] AGAA No. 34 at para. 37
where this arbitrator said:
[T]he term “temporary employee” in collective agreements, does not have a universal meaning.
Rather, its meaning depends on its definition, context and use in each collective agreement.
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It further argues that there is nothing preventing parties negotiating agreements that allow the
right of groups of employees to be limited to only a portion of the agreement’s terms. See:
City of Vancouver v. VMREU [1993] BCCAAA 27 (Bluman)
Town of Fort Erie v. CUPE Local 714 (2002) 107 L.A.C. (4th) 120 (Saltman)
The Employer also refers to:
UNA v. USWA Local 5885 (Johnson) [2009] CLAS 331 (Price)
where the arbitrator said:
Her position as a temporary employee “legitimately fits within the language of the definition” in
the Collective Agreement… The Union argues that Article 28 cannot take away rights given in
Article
14. That argument cannot succeed. The Collective Agreement must be read as a whole, and when it
is, the clear wording of Article 28 prevents such argument. It is not a question of “taking away
rights” – the rights under Article 14 are not extended to temporary employees.
The key is in the first sentence. There is nothing to prevent the negotiation of temporary
appointments with restricted rights provided the position “legitimately fits within the language of
the definition”, which is the question here.
The agreement terms most important to this grievance are those that touch on the three interests
noted above; the University’s appointment and designation rights, which protect its choice and
flexibility in staffing, the rights of persons carrying out arguably longer-term predictably
ongoing work but under term contracts, and the Association’s right to have appointments made in a
way that respect any contractually agreed upon restraints on the University’s ability to allocate
work.
The Grievance
The Association filed this grievance on April 14, 2015.
Pursuant to Article 8.7 of the AUFA collective agreement, I am writing to notify you that a formal
grievance has arisen concerning the classification of the following workers as term employees:
Reineke Gerding-Lengle Nanci Langford
Judy Larmour Lisa Michelsen Karen Nielsen
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Carolyn Redl Angela Specht
AUFA provided AU with notice of a difference under Article 8.3 on January 27th. Athabasca
University has met with us and no resolution has been achieved.
Breaches
AUFA asserts that the following clauses of contract have been violated: article 5 and the Letter of
Agreement – Term Staff, and any other relevant policies, contract language or legislation.
Remedies:
AUFA seeks the following remedies:
• Acknowledgement that these contracts are not, after a decade of extensions for some,
temporary employment arrangements but regular appointments.
• Financial damages to the members for the violation of their rights.
• Financial damages to the union to be paid to a mutually agreed upon charity.
• Conversion of staff in question to permanent assignments.
• Any other appropriate remedies.
The matter was held in abeyance while the parties tried to address this issue during bargaining.
That effort failed and the grievance process resumed. In October 2016, following an earlier
request, the Union provided the following particulars:
1. The nature of the Association’s grievance:
The nature of the grievance is with respect to the improper use of the term contract provisions of
the CBA. It is the Association’s position that the named individuals in the grievance are not
properly appointed under article 5.2, and their contract extensions are not part of the CBA
provisions governing term contracts.
The primary argument is that individuals named in the grievance have been named to term
appointments that do not align with the purposes for term appointments outlined in the CBA. Their
continuing use has deprived the individuals from continuing positions.
2. CBA articles alleged to have been violated
Alleged violations include but are not limited to articles 5.2, 5.5, Letter of Agreement – Term
Staff. Possibly 3.5 and 4.6.
3. The facts:
The history of the individuals’ term contracts, showing that their continuing, long-standing, and
repeated use do not fall within the stated permissible uses of term contracts under the CBA.
4. Remedies sought:
As stated in the Association’s formal notification of grievance dated April 14, 2015, the remedies
sought are a declaration of breach of the CBA, declaration that the members should have regular
appointments and required placement into them, financial compensation to members for their denial
of regular appointment salary and benefits, damages to the members for violation of their rights,
and damages to the union to be paid to a mutually agreeable charity, and any other remedy the
arbitrator deems appropriate.
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The University’s position, throughout, has been that the initial term appointments, and every
successive term appointment or extension thereafter, complied with the provisions of the collective
agreement. It emphasizes that the onus of proving a breach, for each individual named, and for each
term contract, falls to the Association. It does not accept that the two witnesses are
representative of the other five named grievors.
Witnesses and Evidence
The parties introduced over 150 exhibits either through or in addition to oral evidence. The
Association called:
Dr. Nanci Langford – one of two serial term appointees put forward as examples of the alleged
inappropriate use of Article 5.2
Dr. Angela Specht – a second serial term appointee called for the same purpose Mr. Nick Driedger –
The Executive Director of the Faculty Association
The University called:
Dr. Veronica Thompson, now retired, who was Dean of Humanities and Social Sciences Dr. Donna Romyn
–The Associate Vice-President, Research
Athabasca University and the MA-IS Program
Athabasca University has a significantly different history and program delivery model than other
Alberta post-secondary institutions. It offers online and distance learning programs to students
from across Canada and around the world. Initially, it only offered bachelor level courses, often
allowing persons to complete a degree while still employed. It enrolled many students from other
Universities seeking to supplement their own programs using transfer credits. It had a limited
research program and no post-graduate programs, and its funding model reflected that fact.
However, as the University developed, it initiated graduate programs and expanded its research
capacities.
The popularity of certain programs or classes fluctuates over time, particularly when they are
outside what can be called core programs. The sustainability of some classes or programs
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depends almost entirely on the revenue generated by enrollment. As a general proposition, the more
volatile or precarious enrollment in a program proves to be, the more the University seeks
flexibility in its staffing commitments. Athabasca’s funding model and delivery systems make this
proposition particularly important.
Athabasca is unique in another respect. It uses teaching staff in different roles, and draws them
from two different bargaining units. The Academic Staff, which includes persons known as Academic
Coordinators, are designated by the Board of Governors as academics under the Post- Secondary
Learning Act. Tutors and markers, whose engagement with students is mostly online, are not
designated as academic staff, and fall under the Public Service Employee Relations Act (now
changed) and are represented by the Canadian Union of Public Employees Local 3911.
Among the designated academic staff, some are responsible for the customary three-part range of
academic duties; teaching, research and service. Academic coordinators have no research
responsibilities. They are defined in Article 1.25 set out below. Article 3.13 places a ceiling
on their number.
3.1.3 The total number of full-time equivalent Academic Co-ordinators holding regular
appointments shall not exceed 17 percent of regular full-time equivalent Academic Staff Members.
The MA-IS program started in about 2001 as the University’s initial foray into post-graduate
programs. From the outset, it was approved and funded on the basis that it would be financially
self-sustaining. The program involves multi-disciplinary research and study that spans the arts,
humanities and social sciences. It attracts students from all walks of life.
Many of Athabasca’s classes are self-paced. Students in the same course may start at the beginning
of any month, completing their studies within a period, subject to some limits, that need not
coincide with their classmates. From the perspective of the instructors in such classes, this means
the class has no “term”, or fixed ending. The work is continuous until the course is closed to new
enrollment. In addition to this “individualized self-paced mode” the University also offers “group
paced courses” which do have start and end dates.
The philosophy and purpose of the MA-IS program is described as follows:
Since the 1960s, boundaries among traditional disciplines such as Philosophy, History,
Anthropology, Literature, Sociology, and Psychology have begun to overlap. Likewise, the rigid
distinctions between the Arts and Natural Sciences have softened, and some common ground has
emerged. During this time a process of specialization and recombination has generated new areas of
inquiry: Women’s Studies, Development Studies, Cultural Studies, Environmental Studies,
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Global Studies, Queer Studies, Labour Studies, Communications, and more. Now it is common to find
academics and graduate students working on multidisciplinary and transdisciplinary research in both
established areas and newer areas such as Refugee and Immigration Studies, Governance and Global
Change, Aboriginal Studies, Canadian Studies, Sustainability, Gerontology, Post- colonialism, and
Law and Society.
The program is described as follows:
The MA-IS program comprises eleven courses; each worth 3 credits for a total of 33 credits (a
minimum of 18 of these credits must be completed through Athabasca University as a residency
requirement). Students are required to complete two core courses: MAIS601 and MAIS 602.
Courses in the program may be completed in two modes: a paced Internet study group or self- paced
student with support via the Internet. There is no requirement to attend campus.
Depending on students’ undergraduate preparation, and after successfully completing the two core
courses, they may design their graduate studies either as an independent track or a focus area.
Focus Area
After completing the Core theory and methods courses, (MAIS 601 and MAIS 602), students who choose
to study a focus area will complete four courses in a cluster of inquiry and four program
electives. …
Finally, students will complete their MA-IS studies with either of two forms of the Final Project
capstone course: MAIS 700 Group Study Final Project or MAIS 701 Individual Study Final Project.
Independent Track
Students may choose to embark on an independent program of study by completing the project course,
MAIS 701 or MAIS 700 Integrated Project, plus eight elective courses from across the program
curriculum, woven together in a comprehensive plan of study.
The program thus offers considerable diversity but must encompass both the core 600 courses and a
capstone 700 course. The workload the grievors undertook involves teaching these core and capstone
courses plus several of the elective courses offered within the program. Special mention, from that
list, goes to GOVN 500 – Governance and Leadership, which Ms. Specht repeatedly taught, and the
HERM series (for Heritage Resource Management) with five specific courses.
A University document described how people like the grievors, employed primarily in the MA-IS
program, are used:
Term Academic Co-ordinators in the MA-IS program are appointed to perform specific duties for a
specified term when a need arises which cannot appropriately be filled with a regular appointment.
These duties include teaching either a core or elective course, supervising a group or
individualized study project and occasionally, developing courses as a Subject Matter Expert
(“SME”). Academic Co-ordinators are not employed to conduct research, unlike the other academic
employees.
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The use of term appointments ensures that the University is able to offer courses based on
interest, enrolment and the needs of students in order to meet its mandate of providing
high-quality learning opportunities to distance learners. Term appointments provide the University
the ability to adapt to the needs of University’s staff and students as they vary and fluctuate
over time.
In addition to performing services as Academic Co-ordinators, many of the named Grievors who are
covered by AUFA also perform “tutorial duties” or “tutoring” which may be assigned to either an
academic member who is covered by the AUFA Collective Agreement or an employee covered by the
collective agreement with CUPE.
It is sufficient to say for now that the program’s dependence on enrollment revenue, and the
perceived uncertainties of that enrollment, have led to the ongoing use of term appointment
academic coordinators in the MA-IS program. Those who have taught in the program for a long time
have done so on a series of time limited term contracts apparently without serious consideration
having been given to the creation of Regular appointments either for them individually, or for the
MA-IS program in general. Whether that is contractually compliant in the essence of this
grievance.
The CUPE Bargaining Unit
In addition to its designated academic staff, the University draws on tutors from the CUPE
bargaining unit to accomplish its mission. It is not uncommon, for academic term employees to also
take on work as tutors to “fill the gaps” in their workload or calendars. The CUPE agreement
includes provisions that recognize this fact.
7.10 Work assignments or adjustments of six months or less that are due to leave
replacements for an Athabasca University Faculty Association staff member, will be assigned at the
discretion of the employer in accordance with the scope of duties to be determined at the time of
the work assignment. Employees who are assigned these duties will remain CUPE members, and only
CUPE dues will apply to all compensation. Dues will be paid to the Union in accordance with
Article 2.05(2) and Article 12.05(a) and (b).
12.05 (a) An employee who assumes the responsibility of a supervisor or a coordinator will be paid
in accordance with the Collective Agreement between the employer and the Athabasca University
Faculty Association.
(b) Notwithstanding 12.05(a), work assignments or adjustments of six months or less that are
limited to leave replacements for an Athabasca University Faculty Association staff member, the
employee will remain a CUPE member in accordance with Article 7.10.
(c) When the term appointment as described in 12.05(a) is complete, the former CUPE work
assignment or its equivalent will be returned to the employee if the work assignment or its
equivalent is available. If it is not available in its entirety, Article 22.07 shall apply.
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CUPE has not sought to represent persons teaching in graduate programs and those employees who do
teach in those programs have been designated as academics. Some uncertainty about this provision,
as described below, arose in 2013.
Collective Agreement Terms
The parties referred to many items in the collective agreement in support of their arguments. The
agreement’s entire context is always relevant to the interpretation of specific provisions, the
more significant of which are:
1.21 “Position” shall mean specific duties normally performed by one person which has been
established by the Board, and which is then defined as full-time or part-time;
1.21.1 “Staff Member” shall mean those persons designated as academic staff by the Board
pursuant to the Post Secondary Learning Act. This applies to all persons who are subject to this
Agreement, of whom there are three sub-groups: [This appears to be an historical artifact: there
are now only two]
1.21.3 “Academic Staff Member” shall mean a Staff Member designated as such by the Board in the
terms of the Staff Member’s appointment, and who is therefore subject to those sections of this
Agreement that apply only to Academic Staff Members (A). For Academic Co-ordinators, exceptions
are noted in the relevant sections.
Article 1.22 defines appointments:
1.22 “Appointment” shall mean the employment of a person to an established position;
appointments can be regular full-time or part-time, term, contingent, or probationary as outlined
in the Agreement;
1.25 “Academic Co-ordinator” shall mean an Academic Staff Member appointed to an academic
position whose sole criterion for appointment shall be academic and professional effectiveness as
described in Article 3.7.3.a.
Article 3 deals with Regular appointments for Academic Staff Members.
3.1 Regular Appointment
3.1.1 Regular Appointments, regardless of position, may be probationary, or continuing for an
indefinite term, and shall be either full-time or part-time in nature. Regular appointments shall
be made in accordance with the criteria in 3.7 and 3.8.
3.1.6 When a regular position becomes vacant or is newly established and a term Staff Member,
hired through open competition for the term work, has been satisfactorily performing the same job
duties for at least eighteen months, the term Staff Member shall be appointed to the position.
Article 3.1.2 shall apply in this case. (emphasis added)
Elaborate provisions follow governing the appointment, probation, and tenure processes that apply
to Regular appointees, although differing significantly for professional appointments and
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academic coordinators. Of particular significance are Articles 3.7 and 3.8 insofar as they apply
to academic coordinators since these sections are referred to in Article 5.4 below.
3.7.3 Academic Positions
The criteria for appointment for Staff Members appointed to Academic Co-ordinator positions shall
be Academic and Professional Effectiveness and Service to University and Society (as described
below), with the balance between the two areas agreed to by the supervisor and the Staff Member.
3.8.1e. Academic Co-ordinator
One to three years directly relevant experience in distance, adult and/or non-traditional distance
education. Strong course administration skills. Master’s degree or specialized qualification.
Article 5 deals specifically with Term Appointments, and Article 5.2 is central to this grievance.
5. Term Appointments
5.1 Only the following provisions of this Agreement shall apply to individuals on a term
appointment:
Article 5.11 plus a few other sections actually list those provisions that do apply.
Establishment
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:
a. the appointment is a replacement for a Staff Member on leave or on another assignment
of duties;
b. the appointee is inappropriately qualified for regular appointment and is being
appointed because a person with the required qualifications is not available at the time;
c. the appointee is required to upgrade their educational qualifications in order to
meet the requirements of a permanent professional position as a term and condition of employment
(as identified in their letter of offer). …
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;
e. the appointment is necessitated by the sudden unforeseen departure of a Staff Member
on regular appointment;
f. the appointment is contingent upon one or more term-specific collaborative agreements
signed between the University and a collaborative partner, including, but not limited to, other
post-secondary institutions, Indigenous education centres, and private sector organizations;
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g. the appointment is dependent upon contingent or term specific (i.e., not regular
operating) funding from Alberta Advanced Education or other funding sources. Tuition revenue is
not contingent or term specific funding.
h. the appointment is to afford flexibility in program development as determined by the
Board upon recommendation of the Academic Council in each specific instance;
i. for service during the first three years of a new program that is funded solely
through tuition revenue. The first year of such a new program begins on the date the first Staff
Member is hired for the program. Appointments made under this clause that continue beyond the
third year shall be converted to regular appointments and the Staff Members occupying the term
position shall be offered the regular positions.
5.3 Prior to the establishment by the Board of a term position under 5.2 b, c, d, f, g, and
h, the President shall provide AUFA with five working days advance notice to provide advice
thereon.
5.4 Term Academic appointments shall be made in accordance with the criteria in articles
3.7 and 3.8. (emphasis added)
Article 5.5 provides:
Duration
5.5 a. a term appointment may commence at any date during the year. With the exception of term
appointments made under 5.2c, f., and g., a term appointment will not normally exceed two (2)
years;
b. a term position for which the need continues beyond the original term of the
appointment normally shall be offered to the incumbent subject to satisfactory performance;
c. a term appointment of six (6) months or more duration shall be made in accordance
with Sections 3.5 and 4.6 (Procedure). (emphasis added)
Article 5.11 lists provisions in the Agreement that apply to term appointments. Items (n) and (o)
are particularly significant.
n. A Staff Member with an initial term appointment of greater than five (5) years or with
appointments totaling more than five (5) years will be added to the University’s Group Disability
Insurance.
o. The Association and the Board agree to meet by December 1 of each year to review the
appropriateness of all term appointments that have been filled for at least two years.
Section 5.11 (o) duplicates an earlier letter of understanding.
University Policies
The University has a policy describing how positions are established and de-established for all
permanent and term academic positions (it also covers professional and support positions which
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are not relevant here). AUGC refers to the Athabasca University Governing Council. It reads, in
significant part:
AUGC establishes and disestablishes the following positions:
(a) academic positions (permanent and term)
(b) professional positions (permanent and term greater than six months)
(c) support positions (permanent)
1.0 Process – AUGC
1.1 The President makes a recommendation for position establishment to AUGC.
1.2 Once establishment has been approved, Department Heads are notified, and recruitment can
commence subject to funding provisions.
1.3 Positions formally established through AUGC are assigned a position number, appear on the
organization chart …
1.4 Notification of an extension to an AUGC established term-specific position is provided to
AUGC.
1.5 When a term-specific position ends, the position file is closed and the position is
automatically considered to be removed from the establishment and the organization chart.
1.6 Where it is deemed that a permanent position is no longer required, a recommendation for
disestablishment is made by the President to AUGC.
1.7 Human Resources, on behalf of the President, prepares a report for AUGC documenting the
background/rationale for the establishment and disestablishment of positions.
The related policy “Academic/Professional Staff – Hiring Guidelines”, provides, in part:
Preamble
These guidelines are intended to supplement the Appointment Procedures set out in sections 3.5 and
4.6 of AUGC/AUFA Terms and Conditions. They should be interpreted neither rigidly nor loosely but
in a spirit of thoroughness, equability and professionalism.
It is the duty of every participant in university appointment procedures to ensure that appointment
decisions are made fairly and rationally, and that the provisions of these guidelines, Terms and
Conditions and legislation are fully observed, both in letter and in spirit.
Policy
The following steps and procedures will normally be observed in the recruitment process. It is the
joint responsibility of the Chair, Selection Committee, and Human Resources to ensure that these
procedures are followed in conjunction with the AUGC/AUFA terms and conditions and that
confidentiality is maintained throughout the entire process. In the event of any discrepancies or
contradictions, the AUGC/AUFA Terms and Conditions shall prevail. (emphasis added)
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1.0 Position Establishment
1.1 The Governing Council, upon the recommendation of the President, specifies the kind of
appointment that may be made (e.g. term, tenure track) and the classification or rank approved for
the appointment.
This is followed by detailed provisions for the appointment of selection committees and chairs,
advertising positions, shortlisting candidates, conducting interviews and making offers. Section 8
provides:
8.0 Final Selection and Offer
8.1 The Chair ensures that every effort is made to achieve committee consensus on the final
recommendation. In any event, the Chair records the recommendation of the committee, noting any
dissent and the basis for it, and submits it together with a copy of the candidate’s curriculum
vitae, to the Executive Officer who makes the final recommendation to the President.
8.2 An offer, verbal or other, may not be made until the President has signed off the appropriate
authorization.
The Core Question
The evidence concerning Dr. Specht and Dr. Langford shows that, for the length of their careers
with Athabasca University, they have worked under Article 5.2 Temporary Appointments, which the
Faculty Association asserts, have been systematically misused in the MA-IS program. Their careers,
it argues, prove an extended use of term contracts in a way different from that contemplated in the
article, and experienced elsewhere in the University. The University maintains that each of their
appointments or extensions comports with the agreement.
The University presented evidence and argument to support its view that the Association has
accepted its interpretation of the agreement, that past practice as an aid to interpretation
supports its approach, and that, even if the Association’s interpretation is correct, past conduct
creates an estoppel. For reasons given later in this award, I am not persuaded by these arguments,
finding particularly that nothing in the past practice or negotiating history provides evidence
that suggests a common understanding or would alter the interpretation appropriate without
reference to these past events or positions, and nothing gives rise to an estoppel.
Specific legal arguments were advanced on the following topics.
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• Statutory Framework and Principles of Interpretation
• The Judicial Treatment of Serial Term Appointments
• Bona fide use of categories
Statutory Framework and Principles of Interpretation
The University relies on the statutory framework within which it operates; the Post-Secondary
Learning Act and its governing regulations. This includes the Board of Governors’ authority to
designate academic staff members, subject to consultation with the Association. That same Act
authorizes the negotiation of collective agreements that are binding on the parties and the
academic staff. It argues that provisions such as s. 60(1)(a) which gives the Board of Governors
the authority to:
(a) manage and operate the public post-secondary institution in accordance with its mandate.
reinforce what are in any event residual management rights. These, it says, include rights at
common law to organize the workplace and to assign work. It adds the view that this is true unless
that right “is clearly and unequivocally restricted by the terms of the collective agreement. I
think it preferable to simply say “subject to the terms of the collective agreement”. Neither the
Post-Secondary Learning Act nor this arbitrator’s comments in:
Lakeland College and Lethbridge Faculty Association (2015) 123 CLAS 49 (Sims)
go beyond recognizing basic residual management rights. Nothing says any limitation on that has to
be “clear and unequivocal”. The collective agreement is to be interpreted purposefully and in
accordance with its terms, and in reliance on the customary standard of proof, being the balance of
probabilities, with the onus falling on the Association. If any added burden falls on the
Association, it arises not from the legislative grant of the right to manage, or from the
University’s mandate documents, but from the principles in cases such as Wire Rope cited by the
Employer:
We are of the view that the union carries the same kind of burden as it would have when it attempts
to assert a right to a monetary benefit and to impose an obligation on an employer to pay the same.
When a union asserts that a provision in the collective agreement has taken away a fundamental
management right to organize and reorganize its work-force for bona fide business reasons, the same
kind of precise language must be found as arbitrators have held is necessary when a union attempts
to impose an obligation on an employer to pay a benefit.
We are of the view that arbitrators ought not to impose a monetary obligation on an employer that
he clearly did not bargain to pay. We believe that same principle is applicable in the kind of
15
situation we are faced with in this dispute. We ought not to impose upon an employer any
restrictions on its right to organize and reorganize its work-force unless it clearly and
unequivocally bargained so to do.
Re Wire Rope Industries and United Steelworkers, Local 3910 (1982) 4 L.A.C. (3d) 323 (Chertkow)
See also:
Golden Giant Mine v. United Steelworkers of America Local 9364 [2004] OLAA No. 600 at para. 19
(Marcotte)
Brown and Beatty, Canadian Labour Arbitration, at 4:2100 and 4:2110 set out the basic principles of
interpretation, with emphasis on the ascertainment of purpose at 4:2150 and 4:2300. See also
Arbitrator Elliott’s often quoted adaptation of the “modern approach” to statutory interpretation
for the collective agreement context.
CEP Local 777 v. Imperial Oil Strathcona Refinery (2004) 130 L.A.C. (4th) 239 (Elliott) at paras.
42- 47
See also:
Southern Alberta Institute of Technology v. SAFA, Alta G.A.A. 2010-035 (Wallace) Securitas Canada
and UFCW Local 1400 (2012) 227 L.A.C. (4th) 402 at para. 30 (Ponak)
Foothills Provincial General Hospital v. UNA Local 115 [1998] A.J. 1261 (Alta. C.A.), leave to
appeal dismissed [1999] SCC No. 31
In Foothills the Court of Appeal said:
[32] While we do not suggest a specific procedure, some form of analysis is necessary in a
case such as this. For instance, what was the purpose of the notice provision for layoff? What
context surrounds the words in dispute? Do they appear elsewhere in the contract? How should they
be interpreted having regard to the balance of the Article in which they appear? Does either of the
proposed competing interpretations lead to an absurdity, an internal inconsistency, or a result
which is contrary to the apparent purpose of the notice required, so as to lead the tribunal to
choose one interpretation over the other?
16
The Judicial Treatment of Serial Term Appointments
There is a clear and significant difference, particularly in relation to job security and benefits,
between Regular appointees and Term appointees. (See the exclusion in Article 5.1 and the list of
inclusions in 5.11-5.13). The Association argues that, because of the Term appointees’ diminished
rights, arbitrators should view such appointments, when used over a long term, with some
skepticism, to ensure such inferior appointments (in terms of benefits and seniority) are not used
to circumvent the collective agreement’s provisions. Only clear and unequivocal language should
justify such circumstances.
They suggest there is an emerging approach to employment contract interpretation recognizing this
fact. It is rooted in the vulnerability of part-time, untenured, contingent employees over the
longer term, and a recognition that the unauthorized use of such persons, while perhaps getting the
work done at a lower cost, can provide a disincentive to create or utilize the more secure regular
positions. The Association refers to the Ontario Court of Appeal’s decision in:
Ceccol v. Ontario Gymnastics Federation (supra)
Ceccol involved a person employed as an administrative director over a period of 16 years, under
what in form was a series of one year fixed term contracts. The plaintiff was terminated with 3
months’ notice. The Courts found this inadequate for what it viewed, in substance, as a 16 year
period of indefinite employment. The Court said, at paras. 24-26:
[24] I conclude with this observation. Fixed-term contracts of employment are, of course, legal. If
their terms are clear, they will be enforced: see Chambly and Lambert, supra.
[25] However, the consequences for an employee of finding that an employment contract is for a
fixed term are serious: the protections of the ESA and of the common law principle of reasonable
notice do not apply when the fixed term expires. That is why, as Professor Geoffrey England points
out in his text Individual Employment Law (Toronto: Irwin Law, 2000), "the courts require
unequivocal and explicit language to establish such a contract, and will interpret any ambiguities
strictly against the employer's interests" (p. 222).
[26] It seems to me that a court should be particularly vigilant when an employee works for several
years under a series of allegedly fixed-term contracts. Employers should not be able to evade the
traditional protections of the ESA and the common law by resorting to the label of 'fixed-term
contract' when the underlying reality of the employment relationship is something quite different,
namely, continuous service by the employee for many years coupled with verbal representations and
conduct on the part of the employer that clearly signal an indefinite-term relationship. (emphasis
added)
17
The Alberta Courts have endorsed this approach, albeit with some caution.
[5] The first question is whether the contractual arrangement in place at the time of
termination was a true fixed term employment contract. The trial judge so found and, accordingly,
concluded that there was no requirement to provide Alquire with reasonable notice of termination. A
true fixed term employment contract requires “unequivocal and explicit” language: Ceccol v.
Ontario Gymnastic Federation (2001), 2001 CanLii 8589 (ON CA), 204 D.L.R. (4th) 688 at paras. 25-27
(Ont. C.A.). Any ambiguities will be interpreted strictly against the employer’s interest. In
interpreting the contract, the objective is to discover and give effect to the real intention of
the parties: Alberta v. Western Irrigation District (2002), 2002 ABCA 200 (CanLii), 312 A.R. 358 at
para. 21. (emphasis added)
Alquire v. Cash Canada Group Ltd., [2005] ABCA 387
In Pennock, after considering Ceccol, the Alberta Court of Appeal said:
8. The prospect that the parties may agree to extend the term beyond three years as reflected in
para. 1(g) of the Contract, or even have an expectation that this may occur, is not a promise that
the term will in fact be extended, nor does it create ambiguity.
…
9. The fact that there were successive renewals of the Contract does not alter the situation. It
appears that in each instance they were agreed to by the respondent. …
10. This Contract is readily distinguishable from that considered by the Ontario Court of Appeal
in Ceccol v. Ontario Gymnastic Foundation, (2001), 55 O.R. (3d) 614, [2001] O.J. No. 3488. In that
case, the term of the agreement was for 12 months “unless sooner terminated or extended as
hereinafter provided”. The provision immediately following stated, “Subject to acceptable
performance reviews, this Agreement is subject to renewal, upon the consent of both parties as to
terms and conditions.
…
12. In this case, there is no inextricable linkage between potential renewal and acceptable
performance reviews. This is not a situation where the language of the Contract admits of two
different constructions. To the contrary, the language of the Contract is clear. It remains in
force for three years unless sooner terminated, pursuant to paragraph 11, clause (b), which permits
either party to terminate on 30 days’ notice. The Contract must be given effect in the absence of
vitiating legal principles.
Pennock v. United Farmers of Alberta Co-operative Limited, 2008 ABCA 278 (CanLii)
See also:
Holm v. AGAT Laboratories Ltd., 2018 ABCA 23
18
Much of the rationale in Ceccol, and in subsequent cases that draw upon it, involves a recognition
of employee vulnerability. The Ontario Court of Appeal confirmed this, quoting another extract
from Ceccol:
[50] Recognition of this vulnerability is now so firmly embedded in the jurisprudence that
it need hardly be recited. In Ceccol v. Ontario Gymnastic Federation (2001), 2001 CanLII 8589 (ON
CA), 55 O.R. (3d) 614 at paras. 47 - 48 (C.A.), MacPherson J.A. summarized the jurisprudence in the
following terms:
In an important line of cases in recent years, the Supreme Court of Canada has discussed, often
with genuine eloquence, the role work plays in a person’s life, the imbalance in many
employer-employee relationships and the desirability of interpreting legislation and the common law
to provide a measure of protection to vulnerable employees [citations omitted].
These factors have clearly influenced the interpretation of employment contracts. In
Wallace, Iacobucci J. said, at pp. 740-41:
The contract of employment has many characteristics that set it apart from the ordinary commercial
contract. Some of the views on this subject that have already been approved of in previous
decisions of this Court (see e.g.
Machtinger, supra) bear repeating. As K. Swinton noted in “Contract Law and the Employment
Relationship: The Proper Forum for Reform”, in B.J. Reiter and
J. Swan, eds., Studies in Contract Law (1980), 357, at p. 363:
… the terms of the employment contract rarely result from an exercise of free bargaining power in
the way that the paradigm commercial exchange between two traders does. Individual employees on
the whole lack both the bargaining power and the information necessary to achieve more favourable
contract provisions than those offered by the employer, particularly with regard to tenure.
Braiden v. La-Z-Boy Canada Limited (2008) ONCA 464, 294 DLR (4th) 172
Ceccol is a common law case. Collective bargaining readjusts this vulnerability. The first
paragraph of Article 5.2 dampens its force. However, there is still a growing recognition that,
even within academic bargaining units, the position of contingent and part-time academics remains
vulnerable, not only because of an employer’s actions, but because of what is customarily a less
robust role within the academic bargaining unit (not referring specifically to this one) than that
held by those who are full-time tenured employees and who themselves can benefit from a pool of
contingent labour, and can often influence their assignments and their career prospects.
19
Bona Fide Use of Categories
The Collective Agreement’s definitions establish specific classes of employment. By so doing, the
Union argues, they have “occupied the field” and variations in the form of appointment, or the
procedures related to those appointments, cannot simply be made as an exercise of management’s
rights. See:
University of Western Ontario Faculty Association and the University of Western Ontario (2013) 115
CLAS 136 (Etherington) particularly at p. 34-36
Newfoundland Nurses resembles the facts here. The collective agreement provided for permanent jobs,
and temporary positions to be used where the temporary employee was replacing a permanent employee.
The Employer could only hire persons into approved funded positions, and the government was
not withholding funding approval. The Employer began hiring persons to fill temporary positions
for the budget year to cover the work, extending their contracts, as they were able, through the
next budget cycle. Arbitrator Alcock held such a temporary position, not created to cover a
replacement employee, fell outside the parameters of the collective agreement. He said at
paragraph 47:
47. We do not at all doubt the need for the grievor's services and others like her. However, we are
satisfied that where an employee is needed to fill a position on a temporary basis, Article 2.01
(w) provides the parameters for such an appointment. There is no ambiguity here, nor is there any
anomaly. This is not a case where the language contains certain categories, but fails to include
other categories which are specifically expressed elsewhere in the collective agreement. Article
2.01 (w) makes it perfectly clear that a temporary employee must be one who is hired to replace a
permanent employee. No other temporary employment arrangements are contemplated. In our view, such
arrangements, as long as they are temporary by nature and regardless of the terminology one chooses
to describe them, are foreign to and are violations of the collective agreement.
Newfoundland v. Newfoundland Nurses’ Union (1988) 35 L.A.C. (3d) 332 (Alcock)
The Association relies on a case, from the academic bargaining world, for the proposition that one
must look at substance over form when determining whether a particular employment type falls bona
fide within a category of employment. Here, it asserts, the assignments given to Dr. Specht and Dr.
Langford were temporary in form, but regular in substance. Arbitrator Beattie addressed the issue
in a case challenging the designation of certain persons as casual employees rather than temporary
employees, with a consequent loss of benefits.
Northern Alberta Institute of Technology v. NAIT Academic Staff Association (2001) 65 CLAS 190
(Beattie)
20
Section 1(f) of the NAIT agreement defined a temporary staff member as “a staff member whose
appointment has an anticipated expiry date”. Casual employment was defined as “non- permanent
employment on an hourly basis”. NAIT was alleged to have classified and paid staff, whose terms of
employment had end dates or anticipated expiry dates, as casual instead of temporary, in violation
of the agreement.
The decision canvassed circumstances that led to the varied use of the terms temporary and casual,
including the demands of the ubiquitous “Peoplesoft” computer program. It also canvassed
definitions of the two terms. The Association’s argument in NAIT referred to a decision said to
support the following proposition:
10. The Employer may not label the staff member as “temporary” or “casual” indiscriminately. The
characterization of the staff member, or the assignment to the category of “temporary” or “casual”
is not at the sole and unfettered discretion of the Employer. Rather, the status of the staff
member must be determined by objective criteria and according to the Agreement. Based on the
circumstances of the work needed, the Employer is able, or should be able, to determine whether the
staff member is being appointed for a set period, with an anticipated expiry date, or whether the
staff member is being hired for casual (i.e. occasional, ephemeral, transitory) employment. The
Employer is then obligated to assign the staff member to the appropriate category, according to the
Agreement. (emphasis added)
The Non-Academic Staff Association v. The University of Alberta (Employee Types) (Owen, Alberta,
1981, unreported)
Arbitrator Beattie, drawing on the NAIT collective agreement definition, concluded at paragraph 88:
1. The only staff member who can expect to have any meaningful degree of permanency is the
“permanent staff member”.
2. Both “temporary staff member” and staff members who provide “casual employment” are non-
permanent employees.
3. The essential difference between a temporary employee and a casual employee is that the
appointment of a temporary employee has an “anticipated expiry date”.
4. The two categories must have been intended to be distinguishable.
At paragraph 89 he rejected the argument that paying someone an hourly wage meant they must
therefore be casual, saying:
21
That proposition begs the question. One cannot simply be paid an hourly wage and on that basis
alone, be declared by NAIT, unilaterally, to be a casual employee. All circumstances have to be
looked at to make that determination, and whether any employee is paid salary or hourly wages
follows from the determination, not the converse.
He recognized that budgetary issues may obscure whether there is a fixed or anticipated expiry
date:
90 On the other hand, I accept NAIT’s contention that the use of the term “anticipated
expiry date” in hiring/appointment documents, which are for internal use, cannot, by itself, lead
to the conclusion that the employee is a temporary employee. I accept that an anticipated expiry
date is often included in the process, primarily for budgetary/encumbering of funds purposes. The
issue in this regard must, in my view, be whether that date represents a “real” expiry date as
opposed to a date used simply for process purposes. (emphasis added)
At paragraph 95 he said:
95 As a touch mark I keep returning to NAIT’s own policy (Exhibit 3, pp. 26-29 above).
The Board of Governors “prescribes that the Institute shall maintain a recruitment plan which …
applies a consistency in hiring practices”, and states that it “wishes to maintain a consistent and
equitable approach in the recruitment of candidates to ensure that hiring practices are structured
to secure qualified staff” (emphasis added). The Policy Guidelines state that “the status of a
staff member’s appointment is subject to the terms and conditions prescribed in the appropriate
collective agreement and associated policies and guidelines. The only written policy and
guidelines of which we heard is the NAIT Policy and Guideline which I am presently reviewing, and
it would therefore seem axiomatic, from the Board’s own directive, that the Collective Agreement
together with the only Policy Guidelines (providing they do not conflict with the Collective
Agreement which I believe they do not), must be the appropriate basis for the categorization of
employees.
Athabasca’s policies are broadly analogous. Arbitrator Beattie drew on comments from Marceau
J. about the process of distinguishing between two categories of employment:
What is involved is the employment, and employment results from a contractual relationship between
two parties: there is no reason to think that the nature of an employment should be determined by
reference to one of the two parties only, the employer or the employee. It is the meaning which the
two contracting parties give to their contractual relationship which makes the employment something
stable, which can continue to exist or at least be renewed at regular intervals, and on which the
employee can rely, or on the other hand something ephemeral, transitory, merely casual. It is only
by considering all the circumstances surrounding the establishment, continuation and termination of
the contractual relationship that it will be possible to decide on the meaning which the parties
give to their relationship. Some constants may exist.
Thus, I think that in the event of a misunderstanding between the parties as to the nature of their
relationship, it is the employee's impression which should prevail, provided it is based on
objective evidence, as in that case he was really relying on the employment and to this extent
merits the protection which the system can offer. It is also clear that the most telling objective
evidence will be from the employer and its present and future needs, for it is the employer who
created the employment and only he could define it. Apart from these few constants, however,
everything
22
depends on weighing the circumstances and on the conclusions drawn from the evidence. The process
may at times be very cumbersome, but it must be gone through in all cases, and I know of no formula
which can simplify it.
Belanger v. Minister of National Revenue [1987] 3 F.C. 220 (Fed. C.A.)
At paragraph 104, Arbitrator Beattie rejected the argument that the availability of funds
influences the choice of employee classification, saying:
In any event … funding consideration cannot supercede the requirements of the collective agreement.
Similarly, he rejected reliance on a manager’s own view of the matter at para. 105:
The “continuing employment” philosophy requires further comment. Not only do at least some
temporary employees disagree with Mr. Cooke’s view of their expectation of “continuing employment”
… but the “culture”, or his “management style”, have no basis in the Collective Agreement process
or the Guidelines. In fact they are the antithesis of the Guidelines (e.g. temporary employees
have “no commitment beyond the expiry date”).
In the end result, Arbitrator Beattie allowed the grievance. He based his decision in an objective
and reasonable interpretation of the agreement’s definitions for the two categories of employment,
rejecting operational influences that would have conflicted with those agreed upon definitions.
Such departures could not be based on an assertion of management’s rights as a reason for
distorting the contractual language.
The Union also relies on:
Westcoast Energy Inc. and Communications, Energy and Chemical Workers Union of Canada Local 686-B,
38 CLAS 215 (Chertkow)
That case involved the interpretation of a contract that provided for regular employment, plus
temporary employment in a number of described circumstances. The Employer took on temporary
employees, initially for 6 months or under, while they undertook the startup of a new Plant. They
initially extended these temporary contracts with the Union’s consent, but when they tried to do so
again, the Union refused consent, but they hired in any event. The Employer maintained that the
difficulties experienced with the start-up justified their unilateral action, but the arbitrator
held, at paragraph 73-77:
73 I commence my analysis of the issues in dispute between the parties by observing first, that a
purposeful view of the contract language in articles 3.02 and 3.12 ought to be applied in this
case.
23
The basic scheme of the agreement provides, in my view, that employees within the bargaining unit
are to be hired on a permanent basis with all the benefits, rights and privileges as contained in
the collective agreement. There are two exceptions to that basic principle. The first deals with
probationary employees under article 3.02(a) and that is not at issue. Article 3.02(b) relieves
the company from the basic strictures of hiring only permanent employees in certain limited
circumstances and on certain terms and conditions.
74 Clearly, on the evidence, temporary employees hired, in this case (leaving aside the Thompson
grievance) were not hired for turnarounds, vacations or summer work …
77 In my judgment, the position taken by the company that article 3.02(b) does not limit the hiring
of temporary employees to only those specific jobs listed therein is not correct.
I note two additional points. At paragraph 78, Arbitrator Chertkow makes reference to the ejusdem
generis rule, and the decision in Gibraltar Mines, where the B.C. Board discussed the latin term in
the more helpful vernacular.
78 While arbitrators are loathe to apply technical rules of construction to disputed contract
language, this is a case in my view where the ejusdem generis rule applies. The former Industrial
Relations Council of B.C. observed in Gibraltar Mines Ltd., supra, at page 7;
The ejusdem generis rule, as a cannon of construction, cannot save us from the "anguish of
judgement". Such cannons give an air of abstract intellectual compulsion to what is, in fact, a
delicate judgement, concluding a complicated process of balancing subtle and elusive elements. All
adjudicators have at one time or another leaned on the crutch of a cannon. But we have done so only
rarely, and with the recognition that these rules of construction are not in any true sense, rules
of law.
79 A characterization of that rule of construction is also found at page 6 of the Gibraltar Mines
Ltd.
decision;
... where words in a Section clearly address a particular topic, general words should be
interpreted in a manner consistent with the Section as a whole.
80 In my view, the specific words in 3.02 (b) must be read consistently with that section as a
whole and in particular, subsection (d) which places a maximum length of employment of six months
for temporary employees who are hired under the provisions of article 3.02 (b).
The second point comes from the Employer’s assertion in Westcoast, set out at paragraph 70:
70 Counsel for the company argues that what the union is really seeking is a finding that there is
a "deeming" provision connected to the company's request for an extension. What the union wants is
a ruling that if it does not grant extensions, the job will be deemed to be permanent and must be
posted. However, he says, there is nothing in the language in this collective agreement which would
support that contention. A failure to grant an extension does not lead to an automatic result that
the jobs are deemed to be permanent.
24
In finding a breach, the Arbitrator did not “deem” the jobs to have been permanent, he merely held
they should have been posted as permanent jobs. The Employer makes essentially the same argument
here.
It is now appropriate to turn to the history of how these appointments in the MA-IS program were
handled, for Dr. Langford, Dr. Specht and generally. There are periods worth noting. The program
began in 2001 and it was for some time, in fact and in contractual terms, a new program funded
solely through tuition revenue. It remained a free-standing program thereafter, under a Director,
at least until the University adopted a decanal model and assigned responsibility for MA- IS to the
new Dean. Further changes ensued as a result of some initiatives in 2013 and a deterioration in
Athabasca’s financial condition.
Dr. Specht’s Employment Experience
Dr. Specht obtained an M.Sc. from the University of Alberta’s Faculty of Physical Education and
Recreation in 1994. Her particular interests are in public policy, community development and
governance, particularly for heritage and cultural activities and organizations. From 1991 – 2004
she worked as a Teaching Assistant or Sessional Instructor at the University of Alberta and at
Augustana University College. In 2004 she completed her PhD in the Faculty of Physical Education
in Recreation.
In 2005 she began her association with Athabasca University. She has had 10 term contracts with
Athabasca, which the Association breaks down into the following contracts or series of commitments
altered within a contract.
1. Assistant Professor Mar 1, 2005 – March 8, 2008
2. Academic Coordinator May 1, 2008 – August 31, 2008
3. Academic Coordinator Sept. 1, 2008 – March 31, 2009
4. Academic Coordinator Dec. 18, 2008 – Dec. 31, 2010
5. Academic Coordinator Jan. 1, 2011 – Jan. 31, 2011
6. Academic Coordinator +
Acting Program Director Feb. 1, 2011 – Dec. 31, 2013
7. Academic Coordinator Jan. 1, 2014 – Aug. 31, 2014
8. Academic Coordinator Sept. 1, 2014 – Aug. 31, 2015
9. Academic Coordinator Sept. 1, 2015 – Aug. 31, 2016
10. Academic Coordinator Sept. 1, 2016 – Dec. 31, 2016
25
She was initially hired to teach a Governance and Leadership course in the MA-IS program that had
been taught by others for some time. There was no posting for the job, which she heard about from a
friend. She was advised to contact then MA-IS Director Mike Grismondi who hired her, based on her
c.v. and an interview, as an Assistant Professor at 0.1 FTE with a term from March 1 to August 31,
2005. She was told at the outset that the FTE’s could be expected to go up based on enrollment,
with new students starting each month. She was looking at that time for regular and long-term work.
Dr. Specht has taught her original course ever since, the only break being when she took over from
Don Wetherill as acting Director in 2011. She renegotiated a resumption of her regular work once
he returned from his research and study leave. No one else has taught the course at the same time
as her. She had taught in the undergraduate program before, understood that teaching in a
post-graduate program meant AUFA membership, and has never worked under the CUPE agreement.
Over time, she kept getting new contracts or amendments to her original letter of appointment,
shifting the FTE figures, although each change had a start and end date. The original letter was
amended nine times, extending it to April 30, 2008. She had understood from Dr. Grismondi at the
outset that funding was limited, revenue based on enrollment, and that as a result it was limited
term work, but that it was likely to continue in the longer term. That proved to be true as she has
been there for 12 years. The course she taught was a basic course in the program, projected to
continue well into the future.
For May 1, 2008 Dr. Specht was offered a new contract at 0.7 FTE as an academic co-ordinator
teaching Gov. 500, Gov. 505 and HREM 501, which was to last until August 14, 2008, and then another
on August 27 running from September 1, 2008 to March 31, 2009. On January 6, 2009 she received an
extension to her last contract from December 18, 2008 to December 31, 2009. Amendments were made
during that term and then, on December 21, 2009 it was amended to provide for an extension from
January 1, 2010 to December 31, 2010. For the last 4 months of 2010 Dr. Specht received overload
payments for extra duties teaching in HERM. In January 2011, Dr. Specht received another extension
extending her term to January 31, 2011. She then received a new 1.0 FTE appointment to run from
February 1, 2011 to December 31, 2011. This contract was amended on December 21, 2011 to extend the
term to December 31, 2012. It was extended again on January 3, 2013 to run to December 31, 2013.
On January 7, 2014 Dr. Specht received a new 0.6 FTE term contract to run from January 1, 2014 to
August 31, 2014. Another new contract then ran from September 1, 2014 to August 31,
2015. On August 4, 2015 she was given a new 0.9 FTE position to run from September 1, 2015
26
to August 31, 2016 to be “contingent on sufficient enrollments”. She received another new contract
running September 1, 2016 to December 31, 2016 again subject to sufficient enrollments.
Term provisions, she said, did not make sense to her under Article 5.2 because her teaching work
was never projected to end. New students kept enrolling each month in anticipation that the course
would keep being offered, which it was. Dr. Grismondi’s projection of ongoing enrollment and work
proved accurate. Her position was never posted and never the subject of an open competition.
Dr. Specht described the Heritage Resources Management Program (HERM). This was a special program
which began in 2008 transferred to Athabasca University with former President Dr. Frits
Pannekoek. It was a hybrid program with a mixture of funding from the Government of Alberta’s
Heritage Resource Program and the host institution. As far as Dr. Specht knows, it was not
contingent on enrollment in the same way as the MA-IS program. She did not know what role, if any,
tuition revenue played in the program. Interns were hired to work at Alberta heritage sites. They
apparently became Athabasca University employees although they were paid by the Government of
Alberta. They would take undergraduate courses or post-graduate courses depending on their prior
education, with five additional courses giving them a Masters degree.
Dr. Specht taught Govt 505 which is a component of this program.
In April 2013 Don Weatherill left Athabasca and his position, as an assistant or associate
professor, was advertised. Dr. Specht applied for the position as it was the area in which she had
been Acting Director, in which she had been teaching, and which involved her area of specialty. An
applicant from outside the University applied and was awarded the position. Dr. Specht was deeply
disappointed by this, feeling that she was disadvantaged by the fact the only other applicant had
previously worked with Dr. Pannekoek. Dr. Thompson testified that this was not the case and that
issue is not before me. What it indicated to her was that a long term commitment to the University,
and involvement in its affairs well beyond her contractual commitment, gave no advantage over
outsiders once regular full-time positions opened up. Her disappointment was aggravated by the
fact that applicants did not get to give the customary faculty presentation before the hiring
decision was made. No Human Resource representative was present during the process. The position
had been advertised as a 2 year term position but was then awarded as a full-time permanent
position.
After this, and in August 2013 once staff like Dr. Specht had to “apply for their work”, (as
described below), and the University had decided not to offer as many HERM courses, she
27
resigned from the HERM program. She applied instead for courses in which she had experience and
knew she could teach. She then taught MA-IS 601, and 700.
In late 2016, Dr. Specht prepared a full summary of her work. She, along with other academics in
similar positions, felt it was important to let the incoming President know the extent of her
service contributions as well as teaching activities on behalf of Athabasca. The memorandum also
listed a number of scholarly works. Her service work included participation in the MA-IS academic
group, membership on the General Faculties Council and serving on a variety of committees
involving the HERM program.
Dr. Nanci Langford’s Employment Experience
Dr. Langford’s area of study is Canadian Women’s History. She was an Assistant Professor in Human
Ecology and Acting Coordinator for Women’s Studies at the University of Alberta for five years.
Family responsibilities led her to reduce her workload and leave the University of Alberta. Within
days she was approached by the Coordinator of Women’s Studies at Athabasca to see if she would work
there. She accepted a position, initially as a tutor under the CUPE agreement.
She has since had 16 term contracts under the AUFA agreement, between 2007 and the present, broken
down by the Association as follows:
1. Visiting Graduate Professor May 1, 2007 – Aug. 19, 2007
2. Visiting Graduate Professor Sept. 4, 2007 – Dec. 17, 2007
3. Visiting Graduate Professor Jan. 7, 2008 – March 15, 2008
4. Academic Coordinator Sept. 2, 2008 – Dec. 16, 2008
5. Academic Coordinator Dec. 17, 2008 – Aug. 30, 2010?
6. Academic Coordinator Jan. 12, 2009 – April 26, 2009
7. Academic Coordinator May 4, 2009 – Aug. 17, 2009
8. Academic Coordinator Sept. 8, 2009 – Dec. 18, 2009
9. Academic Coordinator Jan. 1, 2010 – Dec. 31, 2010
10. Academic Coordinator May 1, 2010 – Oct. 7, 2011
11. Academic Coordinator Jan. 1, 2011 – Dec. 31, 2013
12. Academic Coordinator Jan. 1, 2014 – Aug. 31, 2014
13. Academic Coordinator July 1, 2014 – Aug. 31, 2015
14. Academic Coordinator Sept. 2015 – Aug. 31, 2016
15. Academic Coordinator Dec. 1, 2015 – May 31, 2016
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16. Academic Coordinator Sept. 2015 – August 31, 2016
In her early years at Athabasca Dr. Langford carried a full-time load (112+ students) teaching 6
core courses in the Women’s Studies program. For a time she also took on the Acting Coordinator’s
role, moving from the CUPE to the AUFA unit when she did so, although still undertaking CUPE unit
work.
Her first appointment teaching graduate work was as a “Visiting Graduate Professor” from May 1
– August 19, 2007, assigned to teach MA-IS 602, the required core course on Research Methods. She
is unsure whether, at the outset, she was teaching an extra section of MA-IS 602,
or replacing Dr. Bismondi on leave. She was approached to teach the course, and did not have to
apply on a competition. Her second contract from January 7 – April 22, 2008 followed a two week
break during which she reverted to CUPE work. This was a new contract not an amendment, she
believes due to higher enrollment in the course. Her next contract ran from May 1 to August 14.
In November 2007 Dr. Langford learned that a vacancy existed for a full-time tenure track position.
She applied, but was unsuccessful. She says it was not an open process and she understood someone
else was just selected. She was concerned about the lack of due process but did not file a
grievance.
As of January 7, 2008 she received a new part-time term appointment, again to teach MA-IS 602. She
did not have to apply, she was simply asked if she would continue doing what she had been doing
before. On August 28, 2008 she was offered another new contract to teach MA-IS 602, plus tutorial
duties, to run from September 2, 2008 to December 16, 2008. Again, she went back teaching in the
CUPE unit until the new contract started. This contract was later amended to add in a special
project.
On December 15, 2008 Dr. Langford was offered another contract, to run from December 17, 2008 to
January 31, 2009 to work as an academic coordinator and continue with tutoring and a special
project. During this period, she did not teach MA-IS 602. However, on January 6, 2009 she was
offered a new additional part-time term appointment to run from January 12, 2009 to April 26, 2009
to be an academic coordinator in the MA-IS program. The offer letter said in part:
… I wish to advise you that part-time term appointments providing instruction in graduate programs
are currently under review by the University. During this review, and for the term noted below,
the working position title of this appointment shall be Academic Coordinator.
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On May 21, 2009, Dr. Langford was offered a 0.3 FTE term part-time appointment from May 4, 2009 –
August 17, 2009. During this period there were still two sessions of MA-IS 602. On August 24, 2009
she received another new part-time term appointment to run from September 8, 2009 to December 18,
2009.
Throughout these contracts, there were various amending letters adding or subtracting time based on
the ebb and flow of tutorial work, but not altering the core MA-IS 602 portion of her work. With
all these contracts, she understood that the program Director had the authority to offer the
contracts (whereas it is now the Dean).
On December 22, 2009 she was offered a contract which, for the first time, ran for a full one year
at 0.22 FTE to teach MA-IS 602, from January 1, 2010 and December 31, 2010. This ended the somewhat
artificial process of reverting back to the CUPE contract during breaks in AUFA contracts. An email
exchange between Dr. Langford and Derek Strin in December 2009 explains this change to yearly
contracts from intermittent term contracts. Mr. Strin wrote saying:
I recall that you had wanted to explore teaching for MAIS on a longer term basis rather than on a
session by session remuneration method.
Currently, we know we will have a section of MAIS 602 available in May 2010 and we could offer a
section of MAIS 602 in Sep, 2010 while Cathy Bray is on leave. We don’t have enough registrations
at this time for a section for you in January, 2010.
We could, if you wish, smooth the remuneration of these two courses over the 2010 calendar year so
that we would make a one year appointment from Jan. 1, 2010 until December 31, 2010. It would be
0.2 FTE for the year for the MAIS portion of your teaching.
She replied:
Derek – this arrangement - .2 over the next year – sounds fine to me. I am surprised about the
January registrations. The one year appointment helps remove some of the headaches I have with
Human Resources about the constant changes to my contract. And it makes it easier to plan my life
for the next year! So I appreciate this offer.
He then replied:
Thank you. I will prepare the paperwork.
With respect to registrations, please note that we have been alternating between you and Connie, as
you both have taught the course approximately the same number of times.
We also need to ensure our FT faculty are teaching to their allotment, and so Michael Francis is
taking a section in January.
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Yes, I am glad that it removes some headaches for you. It also helps me administratively.
Please note some other information about our calculation of FTEs. As you know, a normal ‘block’
of students in a semester “session’ is remunerated at 0.3 FTE for the 15 weeks of teaching. This
smooths out to approximately 0.1 FTE over a year. However, that leaves about 3-4 weeks ‘hanging’
that were formally not remunerated for each ‘block’ between each ‘session’. Therefore, to balance
things out, we normally do not make additional remuneration for project/reading supervision when
individuals are on the longer term contracts (one year or more).
This exchange supports the view that term contracts were being offered to persons without any form
of open competition; indeed the reference to alternating with Connie suggests instead there was a
sort of internal balancing going on. The reference to needing to ensure FT faculty are teaching to
their allotment shows regular faculty loads as a factor even prior to the emerging fiscal
pressures. However, Dr. Langford says at this time, they would make sure they had a temporary
employee in place for MA-IS 602 to give flexibility to the regular faculty. The availability of
MA-IS 602 “due to Cathy Bray’s leave” also shows that the MA-IS 602 availability was, in part,
dependent on the availability of other instructors.
On May 5, 2010 Dr. Langford, as “Coordinator, Women’s Memory Project, Graduate Instructor (MA-IS)
and Tutor (GSA)” received a performance assessment, describing her work over the prior year.
In your role as graduate instructor you have taught two sessions of MAIS602 and have supervised
five graduate students (MAIS701, MAIS751) over the past year. You also note participation on the
MAIS602 revision committee, participation in MAIS programme Council Meetings, as well as
participation in Faculty Re-Structuring Forum in early March. You also note of tutoring .5 block
of undergraduate students in SOC1381: Sociology of Inequality. Clearly you are actively and
productively engaged with undergraduate tutoring, with CIS, and the university at large.
On January 20, 2011, Dr. Langford was offered a new and additional term part-time appointment at
0.32 FTE’s. It ran from Jan 1, 2011 to Dec 31, 2012. This was in addition to her existing
contract for being an Academic Coordinator at 0.3 FTE and a tutor at 0.1 FTE. She taught MA-IS 602
throughout this period. Her May 2011 annual appraisal details the several facets of her work and
provides strong support for her assertion that, while not paid to do so, she involved herself
heavily in the affairs of the University. Extracts of that report say, for her Sociology courses:
I acknowledge that you position is .3 FTE and both your course delivery registrations and number of
courses you coordinate exceeds the average.
As to MA-IS work:
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I also note that you taught three sessions of MAIS 602 for the Centre of Integrated Studies and
supervised 5 students in MAIS 701. The chair of the Centre of Integrated Studies, Gloria Filax,
comments that “Nanci is a dedicated teacher and mentor to students in MAIS. This past year Nanci
received high praise from a final project student that reflects her dedication and commitment to
students. Nanci is conscientious and reliable in working with students and ensuring that their
research needs are identified early on.” I thank you for your dedication to your students.
As to other work:
I commend you on your work for the Center for Work and Community on the Alberta Women’s Memory
Project. This involved planning and overseeing the reconstruction of the web site as well as
researching and writing material for that site. I note that this project was funded by two
separate grants totaling $10,000. In connection with this project you attended a conference and
presented the web site at its official launch in March and the web site will be featured at the
Conference of Women Historians in June. I also acknowledge that you plan on attending the Material
Culture Institute Conference in May, and that you have been invited to present for the Edmonton
Heritage Council in June.
Thank you for your detailed account of your service to the University, your discipline and the
community. I acknowledge that you are a representative for the Associate Dean Selection committee.
I commend you for your participation in the MAIS program council meetings, and your service as a
member of the MAIS Ethics Review Subcommittee. You chaired the AUFA negotiating committee for term
academics as well as served as acting representative for term academics on the FHSS Restructuring
Steering Committee. I note that you also reviewed a sociology text for Oxford Press.
Her April 2012 assessment is similar:
Below I highlight just some of your achievements this year.
Over the past academic year, you were an acting academic coordinator in Sociology (CGSA) until
October 2011 (.3 FTE), a graduate instructor in MAIS (0.3 FTE) and a tutor in SOSC 381 and SOSC 425
(.5 block = 0.1 FTE). You were also active in university committees (0.02 FTE); this combined work
is in fulfillment of your current FTE of 0.42. You are active on 6 university committees, two of
which (the Dean’s selection committee and FHSS Faculty Council) fall outside of your current FTE
for university service (0.02). While I cannot make any commitment to increase your FTE for the
remainder of your current contract (December 31, 2012), we are looking into the possibility of
paying an honorarium for service on additional committees, such as the Dean’s selection committee
and FC, based on the number of hours contributed.
Outside of your contractual role at AU, you also have an active research program, about which you
have been invited to speak at three separate engagements over the last year. You are also active
in your discipline as evidenced by your membership in professional societies. You also serve on
community boards and committees.
On July 26, 2012 Dr. Langford was offered a revision to her Jan 20, 2011 contract to extend its
term from 2 years to 3 ending December 31, 2013. It also adjusted the FTE figures for certain
periods during that term, due to various changes in course assignment. An appointment form of
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the same date described her complex assignment arrangements as “AUFA Art. 52(a)” which involves a
replacement for somebody on leave.
In 2012, an outside contractor was hired to rewrite MA-IS 602, and neither Dr. Langford or her
colleague, who had also taught the course, were consulted “despite the fact I had taught it 14
times”. This was one source of discontent. Another, at much the same time, was caused by changes
introduced by Dean Thompson, described below, requiring in Dr. Langford’s view that “we had to
apply for our jobs”. At that point Dr. Langford decided to leave MA-IS 602 and to give, as her
first priority, the capstone course MA-IS 700. She first taught that course in September 2012, and
taught it continuously for seven sessions until she took research and study leave in September 1,
2015.
At the time of the hearing Dr. Langford had no current AUFA contract, not since her research and
study leave expired on August 31, 2016. She says that, upon her return, Mike Bismondi was teaching
one section of MA-IS 700 and Dr. Specht the other, leaving no opening for her. She says she is the
fourth person to come back from Research and Study leave and find no available work. The day before
this hearing resumed she did receive an offer for another contract to teach in MA-IS, contingent on
sufficient enrollment. This was to replace someone on leave.
Structural and Financial Changes
In 2010, the University changed its administrative structure, moving to a decanal model. This led,
in the Spring of 2011, to the appointment of Dr. Thompson as the Dean of Humanities and Social
Services, taking on responsibility for the MA-IS program. She reported to the Vice President,
Academic.
Prior to this, the University had run with “Centres” and “Chairs” or “Directors”. The MA-IS
program, when Dr. Thompson assumed her position, had been (and continued to be) dependent on
revenue. However, a consequence of the reorganization was greater integration with the regular
faculty in the department and an increasing desire that their services be used (or their workloads
filed) in teaching MA-IS graduate courses. Over time, this increased the uncertainty of the work
available to those term academics who had hitherto been used, albeit not exclusively, to teach
MA-IS courses. This reorganization, plus increasing financial pressures within the University, led
to a system where regular faculty basically had “first dibs” on the courses that term employees had
previously taught and relied upon. Evidence of how the revenue dependent aspect of MA-IS was
controlled under the decanal model was at best opaque.
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Dean Thompson testified that she had little in any knowledge of how the MA-IS instructors had been
hired. It took her some time to become familiar with the degree to which term employees in MA-IS
were in, or also teaching in, the CUPE unit. She accepted as a given that the program continued to
exist on a cost-recovery model and appears to have assumed from this, and from the budgetary
processes as they developed over her term, that term employees were inherently contingent employees
who could not be offered continuing work due to the need for flexibility.
What was notably absent from much of Dean Thompson’s testimony was any significant reference to, or
apparent understanding of, the collective agreement terms under which the employees
within the MA-IS program operated. To the extent reference to the agreement was necessary in the
recruitment and reporting process, she relied on the human resources people to supply the
justifications or explanations, without direct consideration on her part. It was clear for most of
her testimony that staffing choices were driven by a combination of the budgetary cycle and
assumptions about past processes; this at least until issues were raised in late 2012-2013 as
described below. Even then, the attempt to find solutions appeared to proceed on assumed rights and
interests, largely free of collective agreement or University policy guidance.
Dr. Specht testified that one of the changes with the move to the decanal model was an obscuring of
the MA-IS funding arrangements. MA-IS had been independent and operating on a cost-recovery model,
whereas the decanal model involved wider staffing issues. She no longer knew how the MA-IS budget
worked.
Fiscal issues within the University increasingly exerted influence on the MA-IS program as well as
others. There had been an effective freeze on creating new positions since 2011. However in the
context of “new” term positions that had existed before, and were within global budget allocations,
they appear to have had presumptive approval. There were efforts to get special work, like a
course rewrites, done by regular faculty, whereas in the past this might have been available as a
term contract or as a partial extra FTE opportunity. Specifically in respect to term employees
being appointed to regular positions, Dean Thompson says no such appointment occurred during her
six years in the job; they continued to work under contract extensions or renewals.
Fiscal issues at the University precipitated changes in practice, particularly as regular faculty
themselves, finding classes and funding restricted, looked to the MA-IS program to fill their full
time academic requirements, effectively squeezing out some temporary contract opportunities.
Athabasca University entered a period of acute financial difficulty. Regular instructors began, and
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were even encouraged, to take on teaching classes hitherto taught by term employees, all in the
name of cost containment. The predictability of work, as far as persons like the grievors were
concerned, became more uncertain and increasingly dependent on the choices made about the
deployment of regular employees.
Hiring Procedure Issues in 2013
By the fall of 2012 Dean Thompson wanted to obtain a better understanding of who was teaching what
in MA-IS and related programs. CUPE, in bargaining, achieved some changes in their agreement which
raised concerns amongst the faculty. Dean Thompson after consulting with her administration sought
to respond with a new initiative.
Dr. Langford testified about concerns about graduate program positions not being advertised - a
concern she shared. At the time, the Dean was proposing to create a pool of term people who would
be offered contracts that they could accept or reject. She says she was never notified that she was
within that pool but was continuously hired thereafter.
On February 9, 2013, following a meeting with colleagues in the MA-IS program, Dr. Langford wrote
the following email to Dean Thompson.
Veronica – a number of questions have arisen from MAIS colleagues about hiring procedures in MAIS.
(I pass these on as chair of our labour relations committee). At one time all available work was
advertised and internal candidates – both in AUFA and CUPE were allowed to apply, with expertise,
incumbency and seniority being respected. If no internal candidates were found, external ones were
considered. For the past two years or more this practice has been abandoned and it is unclear what
criteria and procedures are used for hiring into available courses – particularly those with no
ongoing or existing incumbent.
I know that Human Resources was concerned about hiring processes in MAIS in the past, as they were
in violation of the collective agreement – which is why available courses began to be advertised
and open to all AU applicants (for courses not taught by regular faculty members). Can you explain
why the open competition process has been abandoned and the collective agreement not respected in
MAIS hiring procedures?
What is the process and rationale for current hiring practice? It is not clear how individuals are
selected and appointed. I appreciate your consideration of this issue.
Part of the uncertainty at the time was a result of changes to the CUPE contract that allowed
persons in that unit to take on work assignments that would otherwise have fallen in the AUFA unit,
so long as the work was for 6 months or less (see Article 12.5 set out above) as opposed to
35
only three months, as before. Dean Thompson said Dr. Langford’s email was the first she had heard
of the broader concerns. She replied on February 11 saying:
I am not aware of any changes in hiring practices in the past two years or more for MA-IS teaching.
If you can please provide specific examples, I can investigate and respond more fully.
On February 23, 2013 Dr. Langford provided a list of 10 courses where she felt the hiring was
unnecessarily external or without sufficient opportunity for internal applicants or those who had
taught the courses before to apply. She prefaced this list with a description of the issue:
Hiring Issue in MAIS
Issue: Instructors are being hired to teach courses in MAIS without any advertisement of the
position either internally or externally. This applies to new and ongoing courses and includes
hiring of individuals who have never taught the course over incumbents who have taught the course
satisfactorily and are available to teach it.
In the recent past available teaching positions, that is those without an available incumbent, were
advertised internally so that all eligible persons at Athabasca (includes PhDs in CUPE and term
academics in AUFA) could apply. Most current MAIS term academics were hired through these
competitions. This has not been happening for the last several years. And persons outside AU are
being appointed to teaching positions, without advertising the position internally or externally,
when qualified persons already at AU are eligible and able to do the work.
She concluded by saying:
I want to emphasize that we are concerned about hiring processes being fair, open and transparent,
following the requirements in AUFA Terms and Conditions and those of Human Resources. We are not
concerned about the hiring of any particular individual.
Dean Thompson met with the MA-IS academics on Monday, August 12, 2013. During that meeting
concerns were aired, and Dean Thompson described a proposed new hiring practice which Dr. Langford
summarized in an email:
It is our understanding, the grad instructors in attendance, that you will confirm by email to us
that
7.10 of the CUPE collective agreement does not apply to MAIS teaching appointments, which are
direct appointments, not replacement appointments for absent regular staff, and as such are
governed by the AUFA Terms and Conditions under the clauses for term academics.
It is our understanding – those of us in attendance – that the new hiring procedures will be as
follows:
1. all available graduate teaching work will be posted in January of each year to cover work
available for September to December of that year and January to September of the following year (so
three terms in advance)
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2. that we apply for the teaching that we are qualified and available for and that right of first
refusal goes to the individual currently teaching the course, based on previous satisfactory
performance. Also for courses with more than one section, or more than one instructor with previous
experience, there has been no consideration yet of the way in which multiple applications will be
handled – i.e. seniority; etc.
It is our understanding that satisfactory performance assessment will be based on the annual
assessment discussed with your Centre Chair.
3. if no one among the pool of previous instructors is available to teach the course then the
request for applicants will go faculty wide (meaning FHSS?) then externally if necessary (meaning
the whole university, then Alberta?)
4. the re-application process each January following January 2014 could be a brief letter to the
Dean and Program Director stating availability and interest in continuing the work.
I hope I have captured these procedures correctly. There are some issues which must be addressed
which we did not get a chance to discuss:
1. One is the issue of seniority – whether the person who has taught the course for many sessions
has right of first refusal before a person recently hired.
2. It is also not clear if the regular faculty apply in the same way for these positions or if
their graduate teaching appointments are handled differently and if they have first right of
refusal over all other applicants? This question applies to all grad courses.
3. Another issue is how MA-IS 701, the project course, and other reading courses fit into this
process, and how the denial of work to some individuals that has occurred with respect to these
courses, despite a record of satisfactory performance based on the annual assessment, will be
fixed. This denial without foundation has occurred despite the shortage of 701 supervisors
available to MAIS students.
Finally, we respectfully request that these hiring principles be followed as work assignments for
January 2014 are determined, and offered by the Dean’s office. As you heard at the meeting, no one
has a firm commitment for teaching after December 2013, so it would be an opportune time to begin
to implement these hiring principles for the teaching appointments for the first two terms of 2014.
We understand that the application process will not occur until January 2014, nevertheless
guidelines like right of first refusal to the incumbent, etc. could still be used for the interim.
On December 13, 2013, Dean Thompson sent the temporary academics her comments following the August
meeting:
Attached are the notes from our August meeting regarding the recent changes to the CUPE agreement,
with confirmation regarding work assignments from AUFA (i.e. academic coordinator work) up to 6
months. Given this confirmation, the procedures below will be implemented in January/February
2014:
• Term instructors currently in CUPE will remain in CUPE and be remunerated on a CUPE 6 month
and under contract at 11 hrs per week.
• Term instructors currently in AUFA will remain in AUFA; 8 month contracts will be offered
from January to August 2014; in anticipation of the implementation of an internal FHSS
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posting process for graduate and paced courses. Available paced courses will be posted informally
and internally in FHSS in January/February 2014 for September 2014, January 2015, and May 2015.
• Individualized study courses and work over 6 months are required to be posted by the AUFA
Collective Agreement.
The following questions were submitted by term instructors after the August meeting:
1. one is the issue of seniority – whether the person who has taught the course for many sessions
has right of first refusal before a person recently hired.
Response: The applicant with the most experience teaching a course would normally be given first
consideration, subject to satisfactory performance.
2. It is also not clear if the regular faculty apply in the same way for these positions or if
their graduate teaching appointments are handled differently and if they have first right of
refusal over all other applicants? This question applies to all grad courses.
Response: Permanent AUFA Faculty qualified for graduate teaching will not be required to apply for
teaching appointments along with the term faculty; any graduate teaching in permanent faculty
workloads will be negotiated within their annual workload and assessment process.
3. another issue is how MAIS 701, the project course, and other reading courses fit into this
process.
Response: the MAIS 701 project courses and other reading courses can be supervised on 6 month and
under CUPE contracts or contracts for service, and can be prepared on a project by project basis.
Supervision will not be unreasonably denied, subject to satisfactory performance.
I am available in January to finalize the hiring process for implementation in 2014. All contract
renewals for January to August are currently in the approval stage.
On January 30, 2014 Dean Thompson sent out a further email with timelines reading:
This email is to advise that, given the conflicting information that has been provided to several
of us, FHSS will continue with AUFA contracts for graduate work. We will be implementing FHSS’s
informal, internal posting of available graduate courses for September, 2014, and January and May
2015 next week. The available courses will be advertised to existing graduate term instructors,
expressions of interest will be accepted, and a principle of right of first refusal will apply.
All of these details will be included again in the email next week, along with the available
courses.
The next email, sent February 4, 2014 read:
As previously indicated, FHSS will be implementing an informal, internal process for posting
available MA-IS courses to the existing graduate term instructors. FHSS is now seeking expressions
of interest for the courses identified in the attached list.
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Expressions of interest will be accepted until Tuesday, Feb. 18. A brief letter of interest and a
current CV should be submitted to ... If you are expressing interest in multiple courses, please
rank your preferences. The submissions will be reviewed by the Program Director and the Dean using
the following criteria:
1. A right of first refusal principle
2. Relevant experience and qualifications
The expressions of interest will be reviewed by Feb. 28, and notifications of course allocations
will be circulated in early March.
As this is a new process for FHSS, we welcome your feedback once it is complete so that we can
continue to make adjustments and improvements for the future.
There is a recognition in this exchange that the AUFA agreement requires that temporary positions
be posted. Faculty questions refer to seniority issues and a right of first refusal. While that
seems discordant with the collective agreement, it nonetheless appears to have been accepted
without further agreement analysis on either side. Throughout these references refer to individual
courses, not to the “positions” to be offered (see the discussion below on the distinction).
General Observations
Before analyzing specific articles, some general observations are in order. As noted, the evidence
discloses little analysis of the agreement’s provisions as events unfolded, still less of the
University’s position creation and hiring policies.
The MA-IS program was the first foray into graduate studies, undertaken without any commitment to
funding beyond the revenues it could generate. It was designed to make substantial use of academic
coordinators. That differentiated it from more mainstream undergraduate faculty activities. There
appears to have been, from the outset, the view that the customary hiring and contracting
procedures could not and did not apply in these nascent, experimental circumstances. Article 5.2(i)
allows a three year exception. The evidence suggests that people were hired initially, and then
rehired in some fashion, based on an informal network of people known to be interested in the
program. Once accepted into this informal pool of term employees, those persons had only a limited
ability to ensure that each time their term position ended, there would be an open competition to
fill any new position created in its place, and consideration of whether it should be a regular
position.
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An assumption also developed that “positions” were basically courses, and that predictability
depended on enrollment in the individual courses making up each employee’s workload, not on the
full course load assigned, or any broader look at the ongoing need for qualified staff. Up until
the introduction of the decanal model, all these work assignments took place primarily within the
MA-IS program.
Concerns began to be expressed once the program lost freestanding status, and accelerated once the
University’s fiscal position tightened. Up until then, while some MA-IS academic coordinators
would clearly have preferred to hold regular positions, there always seemed enough work to go
around for those who had taught before. Two issues became clear in the 2009-2014 period.
The decanal model was adopted without a general understanding of and little guidance over the
collective agreement provisions as far as they applied to MA-IS. It is said that, at the time,
human resources were concerned over the program’s lack of contract compliance. If that is so, their
influence in bringing it into compliance appears limited, having served more to facilitate what the
program’s administrators saw as operationally necessary. That is, necessary due to fiscal
restraint, integration with the new department and its regular faculty, and maintaining flexibility
to avoid staffing commitments not yet justified by actual enrollment and revenue.
Second, the concerns of the academic coordinators, as expressed in the Dean’s meetings and in
response to her initiative, were not so much that the collective agreement was not being followed,
but that there was a decreasing reliance on informal negotiations over course assignments, and a
decline in the implicit respect for seniority and the parallel assumption that those who taught a
course before should presumptively be able to teach it again. What had developed, and been allowed
to develop, was a view that incumbents “sort of” were entitled to “their positions”. This can be
seen in the references, in 2013 and 2014, of “having to apply for our jobs”. Had positions, once
ended, been posted and subject to competition, such assumptions may have been less prevalent.
Changed positions and more focused demands emerged once the pressures to use regular full time
tenure track staff for the available work increased. This, plus fiscal restraint, led to a form of
musical chairs, in which the pool of persons who acted as term limited academic coordinators became
larger in comparison to the available work. Regular faculty were increasingly being encouraged to
take over MA-IS courses. What emerged from the closer scrutiny of the term academic coordinators’
position was a notion or recognition (depending on one’s point of view) that not only had they lost
the advantages of the informal system that went before, but also that
40
the informality had allowed, and even encouraged, some of the contractual provisions that might
serve to their advantage to atrophy, be misinterpreted, or simply ignored. This led to a dual
search for solutions, at the bargaining table as described below, and through the filing of this
and other grievances.
While these general observations provide insight to the way these matters unfolded, and how the
interests involved emerged, the resolution of this grievance depends on the meaning and application
of the words in the collective agreement, to which I now turn.
Collective Agreement Questions
The initial question, both on the words of this agreement and the case law described above involves
the intended function of Article 5 when contrasted to Article 3, in delineating when and why term
appointments can be used.
The general scheme of this agreement is to allow two basic types of employment arrangement; term
and regular. The agreement provides for a variety of circumstances where term contracts can be
used, but the degree of particularity as to when make it clear that it is not simply an open- ended
exercise of management choice, to be used whenever the University found the one more convenient
than the other. Article 5 is not simply descriptive; it implies contractual limitations as to when
temporary appointments can be used. It involves a parallel right in the Association to enforce
those rights in circumstance when an appointment, viewed objectively, transgress such limits. This
is particularly so because of the lesser rights afforded to temporary employees, and the importance
ascribed to long-term staff commitment and academic freedom as expressed in Article 2.4.2.
One consequence of any inappropriate temporary appointments for academic co-ordinators is to dilute
the Association’s right, under Article 3.1.3, to ensure their number does not exceed the 17% level.
Temporary positions do not count in this figure while regular positions do.
Term contracts are to be for a “contractually limited period” and “shall terminate automatically on
a specified date”. Whether the series of contracts with Dr. Specht and Dr. Langford met this
requirement in substance, or just in form, is addressed below. The next sentence about not
carrying any implication of consideration for a regular appointment needs to be assessed, along
with the history involved and other Articles like 3.1.6 and 5.2(i).
41
Three issues became intertwined, in the arguments and in the case law to which the parties refer.
• Were the term contracts for positions appropriate under the agreement?
• If not, do regular positions somehow result as a consequence? and
• If regular positions do not result, can they be imposed for the incumbents or directed more
generally, as a remedy?
The provisions dealing with temporary contracts are addressed first, then the “automatic
conversion” questions, and then remedial questions. This separation is for convenience only, since
the provisions and arguments have had to be considered as a whole, not just independently.
Article 5.2 and “normally”
Article 5.2 ends with the words:
A term appointment will normally be made where one or more of the following conditions apply;
The University argues that the use of “normally” means that the list that follows is not closed or
exhaustive.
The use of the term “normally”, implies the potential for abnormal or exceptional circumstances in
which the restrictions would not apply.
Alcan Smelters and Chemical Ltd. and Canadian Autoworkers Local 2301 (1996) 61 L.A.C. (4th) 90
(Hope)
It points to the use of the word normally in Article 1.12, Article 5.5(b) and Article 5.5(c) and
suggests the word means “in most cases” reflecting a need for a large degree of flexibility.
Anticipating these arguments, the Association put forward two answers. First, in each case here,
for the last two years at least, the Employer has specifically relied on the proposition that the
positions in question fall into the 5.2(d) category. It has never expressly relied on any
“abnormal situation”; indeed it barely does so now. Second, it argues that “normally” in such
circumstances takes its meaning from the article in which it is used. Any discretion inherent in
Article 5.2, due to the use of the word “normally”, would in any event, be interpreted as limited
to true exceptions or abnormal circumstances.
42
… the word “normally” has a perfectly ordinary meaning which would be given to it by ordinary
people in everyday use as a man might say “I normally get to the office every morning at 9:30 but
this morning I was delayed by fog and only arrived at 10 o’clock. In using the word “normally”,
one is referring to something which is in contradistinction to abnormal or exceptional.
Peak Trailer & Chassis Ltd. v. Jackson [1967] 1 W.L.R. 155 at 161 (U.K.) (Widgery, J.)
as quoted in:
Alberta (Attorney General) v. Gares (1976), 67 D.L.R. (3d) 635 (Alta. T.D., McDonald J)
The Association urges that the habitual and long term use of temporary appointments in this case,
of itself, disproves any “abnormality” or use as an exception. I agree. The same result, it argues,
arises from an application of principles of interpretation like the ejusdem generis rule. In that
respect see the discussion of Westcoast Energy (supra). A general phrase in a contract takes its
meaning from the specific words to which it relates. Brown and Beatty, Canadian Labour Arbitration,
4:2141 refers to the following extract from J. Willis “Statutory Interpretation in a Nutshell”
(1938) Can. Bar. Rev. 1 at p. 7:
The “ejusdem generis rule” enunciates the same obvious proposition as “noscitur a sociis” and
applies it to general phrases: a general phrase, such as “or other causes”, or “and all kinds of
merchandise”, takes its colour from the preceding specific words or phrases, and really means “or
other causes of the same sort”, or “and all kinds of merchandise of the same sort”. Naturally, if
the specific words or phrases do not make a “sort”, the addition of the words “of the same sort” to
the general phrase does not make sense, and the general phrase is given its ordinary meaning.
See also:
Public Service Alliance of Canada and Treasury Board (Veterans’ Affairs) [2013] PSLRB 165 at para.
53
Evidence supports the view that the positions here were not seen as abnormal. In December 2014,
Article 5.11(o) led to a meeting between the University’s labour coordinator Cary Myers and
Association Executive Director Nick Driedger. They discussed all the existing term appointments of
over two years duration. The University offered its reasons for each such appointment, including
the relevant subsections of Article 5.2. A report listing those positions shows justifying articles
as 5.2(a)(d) and (e) based on the then current contracts. None were justified under any “abnormal”
category. In respect to the MA-IS program, all were listed under 5.2(d) and the rationale, when
challenged, was that it was a “cost recovery” program and therefore “the expectations were
different than other units.”
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Mr. Driedger says the Article 5.2 designations, as it was explained to him, were assigned by the
human resources department. The practice of including this justifying Article in employment
contracts only began in 2015, with no specific designations being disclosed before then. Dean
Thompson also testified that the subsections of Article 5.2 being relied upon in any given case
came from human resources. For leave replacements it would be subsection (a) and otherwise
subsection (d). No other evidence was put forward that would suggest any of the grievor’s
contracts were initially viewed as, or subsequently justified as being, “abnormal” under Article
5.2.
To read Article 5.2 as nothing more than an aspirational statement, leaving the University free to
justify any term contract, even if outside of the specific limitations in the enumerated
subsections
(a) through (i), would rob the entire section of substance. It is certainly conceivable that truly
“abnormal” circumstances might arise to justify a term contract in circumstances beyond those
delineated, but nothing relied upon here, or indicated by the evidence, justifies the invocation of
such exceptions. All these contracts are “normal” in the sense of the various types of normalcy
listed in 5.2(a)-(i). The question then becomes whether they fit within, or fall outside, the
parameters of those specific subsections.
Article 5.2(a)
A few of the appointments involved in this case involved courses or positions offered, in whole or
in part, to teach classes or provide “acting coverage” for regular appointees on leave. However,
these amount to a relatively small component of Dr. Specht or Dr. Langford’s employment history.
Further, absences for research and study leave, or due to promotions and vacancies, are predictable
in an area like MA-IS. Article 5.2(a) justifies the use of a term contract to provide coverage in
such circumstances. This does not mean that the work needed for such predictable coverage is to be
excluded from any assessment under 5.2(d) of whether positions are required “for a limited period”
or “are not expected to be required to be performed after the specified date”. Regular incumbents
can be assigned to such coverage and the need for it does not force any conclusion that it can only
be performed by a temporary position.
44
Articles 5.2(g) and 5.2(i)
As the first graduate program MA-IS was, at the outset, experimental. It is now long past the
experimental stage, with fluctuating but still predictable enrollment. No witness suggested it has
ever reached the point where it faced discontinuance. Article 5.2(i) allows for term contracts to
cover a tuition based program’s nascent period:
i. for service during the first three years of a new program that is funded solely through tuition
revenue. The first year of such a new program begins on the date the first Staff Member is hired
for the program. Appointments made under this clause that continue beyond the third year shall be
converted to regular appointments and the Staff Members occupying the term position shall be
offered the regular positions.
This exception anticipates the conversion of the initial positions to regular appointments. This
dampens the argument that this agreement never contemplates any “automatic conversions” from term
to regular employees.
Article 5.2(g) rebuts the argument that a dependence on tuition revenue itself can now justify
using term appointments:
g. the appointment is dependent upon contingent or term specific (i.e., not regular operating)
funding from Alberta Advanced Education or other funding sources. Tuition revenue is not
contingent or term specific funding. (emphasis added)
None of the contracts that are involved in this case can be or ever could have been justified under
Article 5.2(g). The only contingency was tuition revenue. None could be justified under 5.2(i)
because all of the grievor’s positions in this case were established more than three years after
the new program began.
Article 5.2(h)
Neither party suggested that this justification ever applied. While it speaks of flexibility, it is
in flexibility “in program development”. There is no evidence that this applied to any of these
contracts, or that the Board has ever received or acted up on any such recommendation of the
Academic Council.
45
Article 5.2(d)
This subsection is the most controversial. Once again, it reads:
d. the duties associated with the positions are for a limited period and are not expected to be
required to be performed after the specified date;
It is a two part test; it not only requires that it be for a limited period, but also a lack of
expected future need. It raises two interpretive questions:
• what are the “duties associated with the position”, and
• how is the test “not expected to be required to be performed after the specified date” to be
assessed.
The reference to a limited period is colored by the opening paragraph of Article 5.2, and by
5.5(a), which provide a presumptive point of reference for the type of period the parties had in
mind.
The Association’s position is that almost all the contracts in issue here fall outside this
category. It refers to four cases which, it argues, establish the manner in which arbitrator’s
approach such issues. Some also address the automatic conversion issue dealt with later.
British Columbia Public School Employees’ Assn. v. BCTF (1999) 56 CLAS 365 (Gordon) South Kootenay
School District No. 5 and BCTF (1998) BCCAAA 576 (Larson) Southern Alberta Institute of
Technology v. AUPE Local 39 (1993) 33 CLAS 654 (Ponak)
West Fraser (Williams Lake Plywood) and USW Local 1-425 (Samson) [2007] BCCAAA No. 118 (Coleman)
The B.C. Public School case involved a contract that called for continuing contracts except to
“temporary appointments who will be used to fill positions which are temporarily vacant or
temporarily existing.” While 5.2(d) does not use the word “temporary”, the concept is similar. The
following passage is helpful:
87 … The first immediately apparent element of this provision is the emphasis on
temporariness. I find that the words "temporary" and "temporarily" should be viewed in their normal
and ordinary sense. They are defined in Blacks Law Dictionary, Fourth Edition, at page 1634 as "not
of long duration; limited time only"; in The New Webster's Encyclopedic Dictionary of the English
Language, at page 862 as "for a time; provisionally"; and in The Concise Oxford Dictionary, at page
1333 as "lasting for a time only; existing or continuing for a limited time; transient;
46
provisional." In my view, these words constitute time limitations on the proper use of temporary
appointments. They clearly contemplate the use of temporary appointments for short and limited
periods of time only.
88 Prior to using a temporary appointment it must therefore be determined, as a matter of
fact, that the position involved will only exist or be vacated by the incumbent for a short period
of time. The date on which the position will likely cease to exist or cease to be vacated by the
incumbent must also be determined. That is to say, a temporary situation has specified start and
end dates, and the period of time between those dates is of a short duration. These determinations
must be made as matters of substance, not form… [a] position cannot be transformed into a temporary
vacancy by simply attaching start and end dates coinciding with successive school years to the
replacing teacher's appointment. This approach permits form to triumph over substance and it
negates the parties' clear agreement to restrict the use of temporary appointments to situations
where positions will exist or be vacated by the incumbent teacher for short periods of time, the
limits of which can be determined at the outset.
Arbitrator Gordon recognized a difference between a “position” and an “assignment”, not dissimilar
to the relationship here between a “class assignment” and a “position”. On this point she said:
96 Again, however, a determination of substance must be undertaken prior to making a
temporary appointment to a newly created position. I accept that the language of the collective
agreement enables the Employer to use temporary appointments for: new positions created by
unexpected enrollment fluctuations which are likely, on the information available, to persist for a
limited time only, and for new positions created by pilot or experimental programs, the success of
which cannot be determined in advance and must be assessed at the end of a specified trial period
of less than two consecutive years. However, if, on the information available at the time of
posting, it is known or reasonably likely that such a position will be required on an ongoing
basis, then it cannot be posted and filled on a temporary appointment simply because it is a newly
created position. For example, where it is known or reasonably likely that student demand or the
need for a new course will persist in the future, the newly created position for that course must
be filled with a teacher on a continuing contract of employment. (emphasis added)
South Kootenay involved teachers improperly classified with temporary positions when they should
have been continuing. The contract had no automatic conversion provision. The Union argued that,
once a contract went beyond a year it should be converted to a continuing contract, a proposition
Arbitrator Larson did not accept. However, he did accept that the agreement limited the ability to
make a temporary assignment saying at para. 35:
…its right to appoint a teacher to a temporary assignment is subject to a determination of the
facts whether there is sufficient work available, in any particular case, such that one could say
that it ought to be an assignment of a continuing nature. In those terms, what arbitrators must be
seen to be doing is ensuring that form does not triumph over substance. If work of a continuing
nature has been assigned to a temporary teacher, it follows that the School Board has effectively
made the decision to create a continuing position, if not by words then by its actions. (emphasis
added)
47
Referring to an earlier decision, the arbitrator continued at para. 38:
… successive contracts of temporary employment will always have to be scrutinized carefully to
ensure that they comprise a genuine rehire and not an attempt to circumvent the term limits.
Without attempting in any way to be exhaustive, evidence that a rehire is legitimate could be
anything that shows that there was some kind of break in the work, such as a new season or a new
project, and that it was not just more of the same work which is indicative of the existence of a
continuing position.
He recognized that there are circumstances where a series of temporary contracts may be justified
where the criteria for a temporary contract are, once again, met, saying at para. 57:
That was also a proposition argued by the Association which Ms. MacDonald expressed in terms that
if a contract is not clearly limited in duration it must be continuing, which is equally an
accurate statement of the law but, what must be understood, is that the application of the
principle does not preclude a succession of bona fide temporary contracts in proper circumstances.
That may even involve a succession of contracts in the same position provided that one can
reasonably say that, measured objectively, it is not really a continuing position.
He concluded by saying:
58 The Board is entitled to determine the staffing complement subject only to the collective
agreement. In particular, the provisions on such things as class size will necessarily have a lot
to do with how many continuing positions will be required. Further, while the Board is entitled to
make subjective forecasts about its continuing requirements as part of the “school shuffle” each
year, any temporary appointments that it makes must be based on an assessment that the position
will be limited in duration. The Board must establish the end date of the term at the time of
appointment, which will be subject to review by the Association in any particular case, whether in
fact, the position ought to have been to a continuing contract. Evidence of successive temporary
appointments, while not conclusive, may be taken as an indication whether a position ought to have
been treated as a continuing one in any particular case.
The SAIT and West Fraser decisions are cited principally for the assertion that a minor break in
employment that is in all real respects ongoing, will not of itself justify a series of temporary
contracts. Again, the circumstances must be assessed objectively. In West Fraser at para. 47 the
arbitrator held:
I do not think that the scaler positions can be considered temporary despite the yearly seasonal
cessation of that activity. It could be said in a literal sense that even ten months is "for a time
only", but given that these jobs in fact go on for a major portion of the year, year after year, it
is difficult to conclude that they are transitory or exist for only a "limited (usu. short) time".
"Ongoing" and "persistent and enduring" better describe the work itself, and it is the relatively
brief seasonal breakup period which is transitory and for only a limited period of time.
…
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But where an employee is associated with a particular position, I do not think that the ongoing and
enduring nature of the work can reasonably be ignored. In the labour relations sphere, permanent
jobs are not rendered temporary by temporary breaks, and attention must be paid to whether the
position is in fact long term (City of Ottawa and New Westminster School District No. 40).
See also SAIT (supra) at para. 31.
In the case at hand, a fact that supports this approach, and a rejection of the “always temporary”
approach, is the decision made to move to annual contracts, treating the FTE value of each
constituent course as an FTE amount on a year round basis. This replaced the rather artificial
“transfer back to the CUPE contract for a couple of weeks” approach that went before.
The next point under 5.2(d) requires a decision as to what is meant by “the duties associated with
the position”. The apparent past practice, and clearly Dean Thompson’s assumption throughout her
term as Dean, is that the duties associated with the position, and thus the judgment about and
expectation for continuation, relate to each individual course being offered. However, the
evidence is that the positions and term appointments being offered, in the large majority of cases,
involved more than one course. They also mostly involved tutoring, teaching more than one course,
sometimes administrative duties, and supervising 700 level work.
“Position” is defined in 1.21 and “appointment” in 1.22. The intention clearly is not that each
particular class assignment is a “position” nor has it been the practice. It follows that, when
asking whether the duties associated with the position are “for a limited period” and “not expected
to be required to be performed after the specified date”, one must assess something more than the
prospects for each class involved. The “position”, in the large majority of cases, (except those
covered by 5.2(a)) are more appropriately viewed as a position created “to teach core, capstone and
content courses in the MA-IS program and related programs like HERM, and to provide tutoring and
graduate supervision”. This is not meant to be a generic definition for all positions, and
specific alternative or additional descriptors might be added. However, this broader type of
description is what the University has, in reality, been using as they have drawn up positions and
contracts. This is the only conclusion possible based on the content of the large majority of the
term position contracts entered into with Dr. Specht and Dr. Langford.
This conclusion is reinforced by the use of the word “position” in the University’s policies.
Positions need to be formally established. Appointments are to be made fairly and rationally and,
subject to some exceptions, following a posting and by a selection committee. This conclusion,
differentiating the “established position” and the “duties, particularly class assignments, within
that
49
position”, also has an impact on the rights given by and the scope of Article 3.1.6 which, once
again, reads:
3.1.6 When a regular position becomes vacant or is newly established and a term Staff Member,
hired through open competition for the term work, has been satisfactorily performing the same job
duties for at least eighteen months, the term Staff Member shall be appointed to the position.
Article 3.1.2 shall apply in this case. (emphasis added)
If the job duties of the position are interpreted narrowly, the scope of the protection necessarily
narrows. As well, if the initial and any subsequent term positions are never advertised, but
simply awarded to a select individual, Article 3.1.6 shrinks to nothing.
In Dr. Langford’s case almost none of her contracts even mention a position number, but almost all
them describe a series of courses and ancillary duties, almost all within the purview of MA-IS,
although not identical in content from one contract term to the next. The same is true in relation
to Dr. Specht, with no reference to position numbers and a sparser description of the expected
activities.
It has been an ongoing practice in the MA-IS program to grant contracts, which under this agreement
must involve “a position”, and then to amend that contract, over its term. The amendments alter the
class or duties content (if even specified), the FTE levels, and sometimes as well the end date.
This practice further reinforces a definition of “a position” as something broader than the
assignment to teach a particular class. A limited “one class only” position is possible, but it is
very much the exception in the contracts produced here.
It is instructive that, when the parties sought to bargain collectively over proposals for some
conversion arrangements for longer-term contract employees (as described below) the discussion
floundered on issues like; how do we know what specific courses will be offered or what their
enrollments will be? - how do we deal with increased enrollment? - what FTE do we offer? and so on.
For term employees the solution has been to offer a core contract and vary it upwards over its
term. There is no obvious reason why a similar approach could not have been used for a regular
appointment as an academic coordinator. The creation of such a regular position does not involve a
tenure track position with research expectations but it can include a probationary period. Some of
the arguments advanced in bargaining, based on the need for collegial oversight on research
abilities, are thus off point.
What a university position customarily entails, at Athabasca and elsewhere, also supports the
broader view of “a position”. A regular professor can be expected to be assigned to teach in a
50
fluctuating array of classes over the years, not to be employed strictly for courses specified for
all time. Dean Thompson’s account of how she negotiated over course assignments for regular
position holders supports this view, as does experience with university positions generally. A
certain flexibility, within the person’s discipline, customarily goes with the job. A review, over
the years, of the work assigned to Dr. Specht and Dr. Langford support the same conclusion. They
have routinely been assigned to teach certain core and capstone courses and to teach a variety of
classes within the program, as well as to perform graduate supervision, tutorial work and related
activities. The term positions they have held are all characterized by this flexibility within
their discipline.
I conclude that this broader view of “the duties associated with the position” is what the
agreement means. It is clear that the way this test has been applied in the past is not in accord
with this interpretation.
This is most clearly demonstrated by Dean Thompson’s evidence of how she interpreted and applied
Article 5.2(d) and how she understood it had been applied. Asked what was the rationale for using
term courses in the MA-IS program, she described it as “a historical artifact for the program which
began before my time.” Notwithstanding this recognition, she sought to justify the new term
contracts for Dr. Specht and Dr. Langford under Article 5.2(d). In the case of the contracts for
which she had appointment and budgetary responsibility, leaving aside those where someone was being
covered off as leave, it was her evidence that she did not believe the work would continue beyond
the specified term date. Such assessments she felt had to be tempered with the “need for
flexibility”.
Dean Thompson acknowledged that for a number of the “new contracts” offered, they were for exactly
the same work as was done before. However, in each such case she felt able to testify that she did
not expect the work would continue, saying “the work can change from contract to contract”. When it
was put to her that Dr. Specht had been teaching Gov. 500 throughout she still answered the
question - did she expect this to end? by saying “possibly”, and by giving the same answer when
asked if she expected Dr. Specht to be teaching it after the end of the term. She maintained this
view while acknowledging that the course Dr. Specht had taught for so many years had been and would
continue to be offered.
At another point Dean Thompson sought to justify her opinion that a course would not continue
“because I can’t predict that far”. It became very clear from Dr. Thompson’s answers that the
criteria she used to assess the need for a term rather than a regular position to accomplish the
work in MA-IS had little to do with the agreement’s requirements and much more to do with the
51
annual budget process. Her criteria in using 5.2(d), was that first, the particular course or
courses should not have already been taken up by, or assigned to, a Regular Professor, and second
that she could be almost certain, based on the enrollments experienced in the last year and
projected for the coming year, that the program could be assured of sufficient revenue to cover the
cost of the term appointment.
At no point did she demonstrate an analysis, beyond this course specific approach, asking generally
is the type of MA-IS work to be done going to be ongoing in sufficient quantities to justify a
Regular position and rebut the test in 5.2(d). My conclusions on this apply whether one adopts a
narrow, course based, view of “position” or the broader view I find more probable.
The Association put in evidence the course offerings for the MA-IS program from 2007 – 2016. MA-IS
is by now a well-established program. The core and capstone courses have been offered throughout;
indeed, they must be for the program to continue in its existing form at all. Each year a few
classes are added and a few cancelled, but this is routine in most universities as the curricula in
each faculty undergoes incremental change. Some courses are offered in one or two terms and not in
others, but again, this is commonplace.
Overall, MA-IS is a well-established on-going program with core and elective classes to be taught.
There is added continuity at Athabasca in that many of the courses are self-paced and continue to
be offered on-line to new registrants, month after month, until the course is discontinued. I
accept that for many courses, the number of instructors will vary depending on the numbers
enrolled, but again this is commonplace, in universities, where a professor’s assigned workload may
change somewhat, depending on the number of sections offered. The fact the instructors needed may
vary with the number of on-line students is not so different than in other Universities where the
number of sections offered may vary due, for example, to classroom size or availability.
My conclusion, on all the evidence, is that throughout Dr. Specht and Dr. Langford’s careers in
this program, those administering the positions, as to whether there should be regular
appointments, or term appointments under Article 5.2 (d), have addressed their minds to the wrong
question. They have focused on whether there is an almost certain enrollment in a particular class
sufficient to justify offering that class to one of the people customarily acting as term
academics. Only once this question was answered positively did they then fashion a temporary
position. Even then they appear not to have followed the procedures in the University’s own
policies, and did not tell the Faculty Association that they were doing so.
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I find the proper enquiry, under Article 5.2(d), is to ask whether the MA-IS program itself was
continuing and would continue to offer sufficient of the classes, and require sufficient of the
supervisory and other duties, to justify the creation of a regular position. Looking at the
required capacity in this way, the key question was could it be said that the type of duties
customarily performed by these people would come to an end on a definite date, no longer to be
required thereafter. The balance of probabilities, on the evidence before me, weighs heavily to the
conclusion that the work done by each of Dr. Langford and Dr. Specht, had it been assigned to a
regular position, would have continued to be required throughout the time they were occupying their
serial temporary positions. Referring to the analysis, particularly in the B.C. teacher cases, and
looking at the facts objectively, it cannot be said that the positions offered to each of Dr.
Specht and Dr. Langford, ostensibly under Article 5.2(d), remained justified as bona fide term
appointments. Dean Thompson’s evidence to the contrary was neither credible nor was it based on any
clear appreciation of the collective agreement’s provisions.
The University’s Policies
The University’s policy for establishing academic positions (both term and regular) and for hiring
to those positions, is set out above. There were very significant differences between the evidence
of Dr. Romyn and Dean Thompson about these policies, and about whether they had been and were
required to be followed.
Dean Thompson’s evidence was that, if a person had a position before (without specifying just
exactly what she viewed as a position) they were not going through a recruitment and therefore the
policy did not apply. For term academic coordinators teaching in the graduate program, she would
just negotiate with them directly over what was needed and what was available for each one of them
to teach. This was so except for the one year when she implemented the informal notice and
expression of interest system.
New positions, Dean Thompson says, required executive approval to create. However, reoffering or
extending contracts they had offered before, in her view, did not. The explanation she offered for
this, in the face of the accepted fact that term contracts ended on their specified end date, was
that the money was already in the sessional instructor portion of the budget allocation. Dr.
Thompson was not aware of any case where notice of a new, renewed, or extended position under
Article 5.3 was ever given to the Association.
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Dr. Romyn’s views were strikingly different. She says she both did, and had to, follow the
University’s policy to establish and hire to new term positions including for those offered before
that had come to their end date. For a term academic’s position, if the term was up, unless she had
it extended, the position was no longer available to be refilled. Her evidence is that she has
never had a new position for which she has not had to advertise openly and go through a hiring
process. That, she says, is the rule. After a position is established it must be posted and the
recruitment process followed, with a hiring committee assisted by an H.R. representative. In the
case of an academic coordinator, the process would not necessarily be a public process, but would
require at least some presentation, based on the person’s past experience, to the committee for a
decision. She was unable to recall a case where there was not more than one applicant.
Dean Thompson’s evidence over the use, within MA-IS, of the University’s position creation and
hiring policy was contradictory and confused. Section 1.5 of the policy reads, again:
1.5 When a term-specific position ends, the position file is closed and the position is
automatically considered to be removed from the establishment and the organization chart.
She agreed that this was so, but drew a distinction between work done before and “new work” in
terms of whether the formal creation of a new position and a hiring process had to occur. Her
evidence generally suggested the policy was out of date, not fully applicable to MA-IS, and not
followed, particularly as to the requirements for notification of AUFA, posting, and a hiring
committee. Some of this might arguably be justified by Article 5.5(b) of the agreement, but Dean
Thompson made no reference whatsoever to that section.
Articles 5.5 and 5.11
The University points to clauses that say a term contract can have a longer duration than two
years, and that the parties in their agreement contemplated the renewal of term positions.
Duration
5.5 a. a term appointment may commence at any date during the year. With the exception of term
appointments made under 5.2c, f., and g., a term appointment will not normally exceed two (2)
years;
b. a term position for which the need continues beyond the original term of the
appointment normally shall be offered to the incumbent subject to satisfactory performance;
c. a term appointment of six (6) months or more duration shall be made in accordance
with Sections 3.5 and 4.6 (Procedure). (emphasis added)
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5.11 n. A Staff Member with an initial term appointment of greater than five (5) years or with
appointments totaling more than five (5) years will be added to the University’s Group Disability
Insurance.
o. The Association and the Board agree to meet by December 1 of each year to review the
appropriateness of all term appointments that have been filled for at least two years.
Article 5.5(a) creates an exception to the two year normal term for 5.2(c), (f) and (g). Those
exceptions alone are sufficient to give scope to Article 5.11(n). The use of the word “normally” in
5.5(a) is subject to the same arguments addressed above in relation to the opening paragraph of
Article 5.2. A term contract of longer than the normal two years (except under (c)(f) and (g)) must
truly and objectively amount to something out of the ordinary, or the two year presumption becomes
meaningless. The review provisions in Article 5.11(o) reinforce the notion that something abnormal
is needed to justify the appropriateness of longer term contracts.
I have accepted above the proposition that, once an initial term contract ends, a further term
contract may yet still be justified, based on the analysis in the B.C. Teachers cases. However,
the further ongoing need, at the point of the extension or renewal, again needs to be assessed
objectively. Too frequent an occurrence is itself evidence that casts doubt on the appropriateness
of the earlier decisions. I do not interpret 5.5(b) as removing the basic requirements of 5.2(d).
However, when there is a continuing need, contrary to the original expectations, Article 5.5(a)
does provide a priority placement for the incumbent.
Thus, the provisions of 5.5(b) justified awarding new or extended contracts to Dr. Specht and Dr.
Langford on the basis of “the need continuing”, provides some explanation of the lack of postings
or competitions for these “new” positions, the original term position having ended. The fact that
the “need continues” provides factual evidence that can but not necessarily does, cast doubt on the
original determination that a term appointment under 5.2(d) was appropriate rather than the
creation of a Regular position. The more this went on, however, the more compelling that argument
should have become. In both cases this went on for too long to give credence to repeated assertions
of an end date without an ongoing need. At each term ending, the question should have been, but was
not, addressed as to whether the continuing need fell within the term appointment provision, or
should have resulted instead in the creation on a permanent position.
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Automatic Conversion
The University argues that, as there is no automatic conversion provision in this agreement, as an
arbitrator cannot alter an agreement, and as the Association tried but failed to negotiate such a
clause, I cannot rule that any of the grievors now hold regular positions.
Two specific clauses touch on the possibility in specific circumstances; 5.2(i) discussed above and
Article 3.1.6 which, again, reads:
3.1.6 When a regular position becomes vacant or is newly established and a term Staff Member,
hired through open competition for the term work, has been satisfactorily performing the same job
duties for at least eighteen months, the term Staff Member shall be appointed to the position.
Article 3.1.2 shall apply in this case. (emphasis added)
Article 3.1.2, in particular, allows for a regular position awarded under this section to be
probationary for two years. Article 5.2 says expressly, of term appointments:
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.
The Association, in collective bargaining, has put forward proposals to achieve such an automatic
conversion right, but equally (as described below) the University has rebuffed such demands.
The Association’s bargaining proposal for “automatic conversion” would have added to job security
for all its members, but it argues, for this case:
This grievance does not assert that all term positions have automatic conversions, except in
Articles 5.2(i) and 3.1.6. This grievance concerns the consequences of misusing the term
provisions over the course of many years.
The Association’s inability to achieve a full “automatic conversion clause” does not diminish the
force of those provisions already in the collective agreement which must have meaning.
It is important to separate what the collective agreement provides from the related question of
what remedy should follow for any breach of the agreement. It does not necessarily follow, for a
non-compliant term appointment, that the person who took the term appointment inappropriately
created should themselves have received a regular appointment instead. Rather, it may mean only
that the term position should not have been created at all, leaving the University with the
56
choice of not offering the courses the person would have taught, or of establishing a Regular
position and having to fill it by competition (or through 3.1.6).
Authority for this proposition, in general terms, is provided by Newfoundland Nurses (supra) where
Arbitrator Alcock said:
51 In this collective agreement, the only way that a temporary employee can become a permanent
employee is by being the successful job posting candidate for a vacant permanent position, either
the one she had been filling temporarily, or another one that had become vacant, or even a newly
created position. In our view, the longevity of a temporary appointment whether by means of a
single term or several extended terms cannot of itself create a position of a permanent nature.
Newfoundland v. Newfoundland Nurses’ Union (supra)
As noted above, the arbitrators in Westcoast Energy (supra) and South Kootenay (supra) take a
similar view.
In Carleton University, Arbitrator Goodfellow dealt with the temporary v. permanent appointment
issue in a non-academic situation. He accepted, at paragraph 13, that non-continuing positions were
the exception, and continuing appointments the rule. At paragraphs 14-15 he held:
The designation of positions and persons – when and how the University must decide
14 For essentially the same reasons, we also accept the Union’s submission that the University must
assess whether a particular position is properly designated as non-continuing both at the time that
the initial need is identified and, if circumstances change, throughout the existence of the
position.
15 At the outset, the University cannot take a “wait and see” approach. It cannot rest on
uncertainty and see what develops, while filling the position with a non-continuing employee.
Rather, it must evaluate the facts and make a decision based on the criteria set out in Article 3.
If the University does not, on a reasonable and objective basis, believe that the position meets
the term, replacement or temporary definitions, it must treat the position as continuing. (emphasis
added)
In assessing, at the outset, what type of position is involved it said at paragraph 17:
17 As to the standard to which the University must conform when making its assessment, we accept
the Union’s submission that the University must make a reasoned and careful evaluation of the
objective facts. It cannot undertake a casual, superficial or perfunctory review, whether at the
outset or subsequently. The contractual consequences for the appointees and other bargaining unit
members are too great for the University to be anything but diligent in its assessment.
At paragraph 32 the arbitrator distinguished between two positions (both relevant here).
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The first involves an appointment to a position that was improperly designated as non-continuing at
the outset. The second involves an appointment to a position that, while properly designated as
non-continuing at the outset, ultimately lasted for longer than 12 months without Joint Committee
approval.
He answered the first at paragraph 37 and the second at paragraph 40:
37 In the result, we conclude that if an employee is appointed to a position that does not exhibit
the required features of term, replacement or temporary employment, it is open to a board of
arbitration to determine that the employee is a continuing employee. Whether that result will
obtain in a given case, however, may depend upon additional factors such as the requirement to post
continuing positions and the fact that temporary employees are not included in the bargaining unit
for the first three months of their employment.
40 The principle that appears to have been applied in the cases is that an individual’s employment
status is established at the time of hiring. Assuming that the status of temporary employee was
appropriately conferred at that time, it does not change simply because the nature or duration of
the work has changed. A further step – the acquisition of a new position or the creation of a new
appointment – is required before the legal character of the employment relationship can be altered.
The absence of, or inability to negotiate, an automatic conversion arrangement does not, of itself,
preclude the possibility of the offering of a permanent position as one possible appropriate remedy
if it can be shown that, by the persistent but inappropriate use of term appointments,
bargaining unit members have lost the opportunity to apply for the Regular positions that would
otherwise have been created. At this point, I am not saying this is appropriate, only that the
prospect that it might be justified as a remedy does not force any particular interpretation on the
wording of the current agreement. However, in weighing the appropriateness of such a remedy, the
robustness of the regular employee hiring, probationary and tenure processes must also be weighed.
It can be argued that any decision to convert someone from temporary to regular should be
interpreted with due respect for the rights of not only of the University but of any right of
the academy to scrutinize such appointments. It is debatable to what extent that applies to the
non-research academic coordinators involved here.
Before proceeding further, I now address the reasons I found the evidence and arguments over
bargaining history, past practice and estoppel, unpersuasive.
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Bargaining History and Estoppel
The Association argues that the language and intent of the collective agreement is clear and, as a
result, no use should be made of evidence from bargaining. If such evidence is considered, it
argues that it, in any event, fails to bring clarity to the agreement on this point.
The University argues that “the Association has demonstrated, over multiple years, its agreement
with the University’s interpretation of the CBA as it relates to term appointments”. Further, if
the Faculty Association’s interpretation of the collective agreement is the more probable, then the
Association is estopped from relying on that interpretation on the basis of past practice and
representations made during bargaining.
Both these arguments draw on positions advanced and discussed during bargaining. An important
feature of bargaining between these parties is that they bargain terms and conditions of employment
separately for salaries. For terms and conditions, they operate under what Mr.
Driedger called a “stonewall clause”. If no changes are agreed to, the agreement remains the same.
The agreement provides:
2.3.7 Where no resolution of the matter occurs or where no ratification occurs prior to December
31, the status quo shall prevail.
This provision diminishes the argument that, having raised but not resolved an issue in bargaining,
the Association can be presumed to agree with the University’s position on the meaning of the
Article.
Some of the Association’s case involves the proposition that the University’s application of the
collective agreement terms has been less than bona fide in the sense that an appointment, said to
be in one category, was in fact or ought to have been an appointment to another category.
Further, both the Association and the Employer, at different times, refer to the particular
circumstance of the MA-IS program when compared to the University at large. These factors leave
much room for perceived agreement on general propositions, but subject to special considerations in
these particular circumstances. This too dilutes the force of “but you agreed with us” arguments.
The bargaining evidence came from documents plus the testimony of Association Executive Director
Nick Driedger, Dr. Romyn who sat on the Employer’s bargaining committee in 2013 and 2015, and Dr.
Langford, who sat on the faculty association’s negotiating committee in 2015.
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In bargaining that began in March 2013, the Association put forward proposals to improve the
situation of term employees. It proposed deleting the words:
5.2i for service during the first three years of a new program that is funded solely through
tuition revenue. The first year of such a new program begins on the date the first Staff Member is
hired for the program. Appointments made under this clause that continue beyond the third year
shall be converted to regular appointments and the Staff Members occupying the term position shall
be offered the regular positions.
and adding:
5.5d All employees who have provided cumulative service of five years in term positions shall
be offered regular positions with workload and salary at least equivalent to the workload and
salary in place at the five year anniversary date.
It also proposed to add language for 5.5d as follows:
…a term position for which the need continues beyond the original term of the appointment shall be
offered to the incumbent subject to satisfactory performance, except where alternative work of an
equivalent workload and duration and which is covered by this agreement is offered to replace the
original work or where the work is no longer being performed by an AUFA member in a term position.
Incumbency status still applies when the incumbent returns from an approved leave. If more than
one incumbent has performed the work satisfactorily in the past, the person returning from an
approved leave who was performing the work prior to their leave is to be offered the work upon
their return. In all other cases, the incumbent with the most prior service shall be offered the
work.
On the first day of bargaining the Association’s Mark McCutcheon introduced the proposals, saying:
Term Appointments – This is not for our regular full time positions, but for our term. Recognize
and serve this group of faculty who does not have security, but have been employed for many years.
Some kind of recognition in length in service.
The University argued that such persons would have avoided going through the appointment process,
achieving Regular status through extensions, “without having to work for” the Regular appointment.
This argument seems more applicable to professorial positions than academic coordinators. The
matters were left unresolved.
Dr. Romyn was of the view that the Association was seeking an automatic conversion mechanism that
had not previously existed. The Article 5.5(d) was therefore a proposal for a change in practice.
She says she does not recall a discussion of the interpretation of the existing language
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at the bargaining table, although the Association gave an overview which caused the Employer’s team
to ask questions. The University bargaining committee, after internal discussions, decided they
could not accept the proposal. They were concerned about the lack of precision as to what, in terms
of FTE levels and classes, they were being asked to make into Regular appointments.
In 2015, the Association proposed a right of first refusal and seniority clause and an automatic
conversion clause reading:
5.5c If more than one incumbent has performed the work at issue in Article 5.5b, a Staff
Member returning from approved leave shall have right of first refusal to the work. In all other
cases, the incumbent with the most prior service shall be offered the work.
5.5d When a term appointment of series of appointments results in a Staff Member performing
substantially the same work for a period of five or more years, the term appointment shall be
converted to a regular position. The workload shall be consistent with the workload assigned over
the term, using an average of the last three years, notwithstanding sections 3.5 and 4.6.
At the same time, the Association sought an amendment entitling them to electronic access, once a
year, to “Term appointments made for the purpose of teaching graduate courses and a list of
assigned courses for each appointment”.
Mr. Dreidger acknowledged these two proposals went to overlapping concerns and that, if they
achieved (c), they would have given up (d).
The Employer’s notes record Dr. Langford describing the Association’s view on these issues.
When we talk about term staff we are talking about professionals and academics. Some of the
long-term ones are on the academic side. The issues here is that we use term staff to deal with
graduate programs. MAIS Program. The hiring procedure have not really been determined. A set
process that is regular and … The other issue is the workload for HR is huge. Creating contract,
after contract, after contract. The amount of paperwork that HR has to do is huge, plus the delay
in process … It would save the university a lot of money. – Regular positions. I imagine that it
is similar in the professional side as well. The practice is the past is after 5 years to move that
work into a regular position. In MAIS there are those with 5 years or more still terms. There are
long term academics that are less secure than CUPE tutors. Final point is that when we met with
the VPA a few year ago we talked about flexibility. It seems to me that when you have a program in
place for 15 years – stability has been established. Flexibility in the stability. We are moved
around within the program that we are needed – the assist is that we are the flexibility that adds
to that stability. – Cost saving to the /university.
On March 16th they discussed the lack of academic terms and the loss of work following a research
leave. The University raised the concern that using any average of prior FTE’s to create a regular
position would mean exceeding the University’s current needs. It expressed the view
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that the existing language provides “… flexibility for management to manage their agreements with
term contracts” to which the Association responded with the assertion that “these are not term
contracts if you are rolling them over 10 years.”
The University then raised the difficulty of addressing this issue while it had a “bankruptcy
budget”. It felt unable to establish new Regular FTE’s when they were reducing FTE’s overall.
When they came back to the topic on May 27, 2015 Dr. Romyn raised the following questions about the
proposed term employee language:
• They are term and not permanent for a reason (they apply for permanent)
• Will come in under the faculty or the centre?
• They do not have their own work. Will have to do what is assigned to them that year.
• May add a lot of FTE to areas that cannot afford them.
The conversation that followed focused primarily on the costs associated with providing permanent
status for long term temporary employees. The Association made it clear then the permanency they
sought to achieve was as an Academic Coordinator, not as tenure track academic staff. The parties
talked back and forth about the problems of such an arrangement when Term Contract holders have
fluctuating FTE’s and no ownership in any particular course even if offered. The University
emphasized the cost of such a proposal and inquired about cost savings elsewhere, saying, at one
point (as to what the negotiated permanent workload (FTE) might be):
There will be a bare minimum. Really it is the security in that position for the minimum. Your
term is not going to end at the end. It is big at both sides. We have a flexibility to move from
.4 or .6 and our security to eliminate position. This is huge for the university to manage without
some significate savings elsewhere. Can we cut down the severance package? This is something.
There was also some discussion, if some arrangements were agreed to, what it would do to the
parallel CUPE unit work some term appointees undertake, although this was said to apply to less
than half of those involved.
The July 6th draft of the Association’s proposed language involved a variation on the earlier
proposal for an Article 5.5(d) plus additional new or amended language as follows:
5.5d When a term appointment or series of appointments results in a Staff Member performing
substantially the same work for a period of five or more years, the term appointment shall be
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converted to a regular position. The workload will be consistent with the workload assigned over
the term, using an average of the last three years, notwithstanding sections 3.5 and 4.6.
3.4.2 It is recognized that work may occur regularly each year but not be continuous throughout
the year. Term Staff Members who perform such work are considered to have performed that work
continuously.
5.5c If more than one incumbent has performed the work at issue in Article 5.5b, a Staff
Member returning from approved leave shall have right of first refusal to the work. In all other
cases, the incumbent with the most prior service shall be offered the work.
It was further proposed to delete the word “normally” in Article 5.2. Minutes of July 7, 2015 show
further discussions, but no resolve. Dr. Langford confirms that negotiations on the issue were
never really completed; “they just fell apart”.
Dr. Romyn understood that once again the “ask” was for multiple term positions to automatically
become permanent at some point, something she felt was not contained within the existing
provisions. She says they did not discuss the interpretation of the existing provisions as they
related to conversion. The University’s continuing concern was the inability under the proposal,
to allow a term contract to expire, and the potential additional cost and loss of flexibility in
committing to regular positions, something they felt necessary due to the uncertainties of student
enrollment.
The next round of terms and conditions bargaining began in November 2016. The Association
submitted essentially the same language as part of its opening proposals. Discussion on November
14, 2016 revealing no significant change in positions. Dr. Romyn says that the proposal put
forward in November 2016 was similar to that received in the previous round.
However, the University’s financial situation had deteriorated to the point where it was struggling
to meet its day to day operations. A similar 5.5d was again proposed in 2016, when Mr. Powell is
recorded as introducing the proposal by making the following points (this is just a summary from
the Employer’s notes):
2) Improve conditions for term staff
• High instance grievance
• Problems w contracts, ends terms
• Around 26 members
• One member went on R&S leave and did not have job come back to
• Would lighten grievance for both
• New language 3.4.2
• 5.5c R&S leave – going on leave does not cause job loss
• 5.5d Academic Coordinator would convert. Usually convert to .6 FTE
• 5.5b – contradiction with 5.2 – make it clear 5.5b is an exception to 5.2
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Mr. Powell went on to note, based on the proposed language, that they wanted to deal with the
availability of work after an R & L leave, and with the fact that FTE’s can vary somewhat year to
year but are nonetheless overall basically continuously available.
On the estoppel issue, both parties refer to Brown and Beatty’s summary of the elements of estoppel
set out in Canadian Labour Arbitration, at 2:2211:
Thus, the essentials of estoppel are: a clear and unequivocal representation, particularly where
the representation occurs in the context of bargaining; which may be made by words or conduct; or
in some circumstances it may result from silence or acquiescence; intended to be relied on by the
party to whom it was directed; although that intention may be inferred from what reasonably should
have been understood; some reliance in the form of some action or inaction; and detriment resulting
therefrom.
Arbitrators may flex the principles of traditional common law estoppel to fit the collective
bargaining relationship, although only in a principled way. That was affirmed in the Supreme Court
of Canada’s decision in:
Nor-Man Regional Health Authority Inc v. Manitoba Association of Health Care Professionals, 2011
SCC 59 at paras 48-50, [2011] 3 SCR 616
This arbitrator discussed the more modern approach to estoppel, both in labour relations and
generally in:
Global Edmonton v Unifor Local M-1 (Meal Periods Grievance) (2015), 263 LAC (4th) 363 (Sims)
Paragraph 83 of Global reads:
83 The law has progressed. As the reviewing judge pointed out, equitable doctrines are to
be applied not rigidly, but "in a manner consistent with the unique labour relations environment".
If arbitrators are to embrace that approach, it is incumbent on them to explain rather than just
invoke what it is in that unique environment that justifies a more flexible approach and to do so
without simply falling back (in any rigid way) on the traditional rules applicable outside of the
labour environment. In short, the flexibility given by Nor-Man needs to be both reasonable, and
rationally explained.
The University notes Arbitrator Hall’s observation in 1987 that:
… the nature of the collective bargaining relationship … calls for openness and some degree of
trust between the parties in their dealings. The relationship is based on mutual good faith and
this
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connotes an obligation on each part to alert the other side if it does not accept a particular
interpretation of … the collective agreement. Such obligations will not necessarily arise every
time one side the other advises the other of a position it intends to take, but they will arise
where one party’s silence on an issue raised leads the other to reasonably infer acquiescence [sic]
and to thereby forgo (and thus to lose) a chance to improve its position or at least its legitimacy
through, for example collective bargaining.
Barnard Management (cob Budget Rent-A-Car (Truck) Systems) [1987] BCLRBD No. 122 (Hall) quoting
Districts of Chilliwack BCLRB L362/82
I note however that that decision was rendered in respect to B.C.’s more expansive mandate for
arbitrators, subject to LRB not Court review.
The University asserts four propositions, supported by the authorities cited below.
• An estoppel does not turn on any finding that the first party intended to actually agree to the
second party’s interpretation. It is enough that, on the facts, the first party is entitled
reasonably to interpret the silence as acquiescence:
Re Sudbury (City) and CUPE, Local 207, [1993] OLAA No. 931 (QL) at par 95, 31 CLAS 176 (Ont Arb)
(Marcotte)
• Estoppel does not require a finding that the party making the misrepresentation had any intent to
mislead:
TRW Canada Ltd. v. Thompson Products Employee’s Assn (Association Responsibilities Grievance),
[2001] OLAA No. 190 (QL) at para 58 (Ont Arb) (Newman)
Sklar-Peppler Inc and USWA, Local 50, Re, 1988 Carswell Ont 4086 (WL Can) at paras 26-27, 9 CLAS
127 (Ont Arb) (Stewart)
• The detrimental reliance necessary to found an estoppel, need not be a positive act. It is
typically found in the lost opportunity to bargain different language:
TRW Canada Ltd. (supra) at para 53, 66
Newfoundland v. Newfoundland Nurses’ Union (Bussey Grievance) (1988) 35 L.A.C. (2d) 332 (Alcock)
Sklar-Peppler, (supra) at paras. 26-27
• A consistent and longstanding past practice can form the basis of an estoppel.
Fort Erie (Town) v. CUPE Local 714 (2002) 107 L.A.C. (4th) (Saltman)
Authority for this last point can also be found in the B.C. Public School case (supra). There
Arbitrator Gordon held that:
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110 It is well established that an estoppel can arise from either words or conduct, including
silence and inaction by one of the parties. One form of conduct frequently asserted as the basis
for an estoppel is the existence of a practice which deviates from the terms of the collective
agreement.
At paragraph 108 she refers to the B.C. Labour Board’s decision in:
Chilliwack v. CUPE Local 458, B.C.L.R.B. L362/82
One party’s silence in the face of an ongoing practice leads the other to the reasonable inference
of acquiescence and to forego the opportunity to improve its position or confirm its legitimacy in
collective bargaining.
Canada Post Corp v CUPW, 1990 Carswell Nat 865 (WL Can) at para 13, [1990] CLAD No 10 (Can Arb)
(Burkett)
The University put forward essentially two circumstances, each said to be sufficiently inequitable
to justify an estoppel. The first is that, by its failure to grieve these term appointments or
reappointments, despite being provided with information about them, the Association has acquiesced
in the University’s interpretation, or at least allowed it to believe, to its detriment, that the
Association would not grieve such reappointments. This, it argues, is unfair and contrary to the
principles of labour relations and the trust necessary for collective bargaining. The ongoing
failure to provide the Association with the notice required of new contracts destroy any equitable
foundation for this argument.
The second is based on representations made during bargaining. By proposing to bargain new
language on the consequences of the University’s interpretation of the language (albeit
unsuccessfully), the Association is said to have unfairly led the University to believe that the
Association accepted the University’s basic interpretation.
The University maintains that comments during that round by Mr. Powell, speaking for the
Association, demonstrated a recognition that the agreement did not provide for a “temporary to
permanent” conversion process. That may be, but this is neither the precise nor the whole of the
issue involved in this grievance.
The University’s argument for estoppel based on uncontested past practice would be stronger had it
not been for its total failure, over many years, to advise the Association in advance of the
creation of a term position, as required by Article 5.3.
Prior to the establishment by the Board of a term position under 5.2b, c, d, f, g, and h, the
President shall provide AUFA with five working days advance notice to provide advice thereon.
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The University’s argument continues with a letter of understanding, entered into for the 2005- 2007
agreement, but not renewed thereafter, providing for a specific conversion, after 12 months, to a
regular position for a Visiting Graduate Professor. From this it argues that, since then, the
Association:
… has chosen to forgo bargaining any language which requires a term position be converted to a
regular position after any length of time. Likewise, there are no provisions requiring term
appointees be shortlisted for future posting competitions respecting regular employment.
Having reviewed this bargaining history, and particularly Dr. Romyn’s evidence of what was and was
not discussed, I find the University had no reasonable belief the Association agreed with their
interpretation of the agreement on the relevant points in issue. There is nothing for which I can
conclude any common understanding of the meaning of the existing provisions, particularly insofar
as they relate to the specific circumstances of the MA-IS program.
Conclusions and Remedy
In summary:
1. The agreement contemplates that employment will be offered via one of two forms of position,
each with options as to the FTE involved. The intention is that only one or the other will be used,
leaving no room for some in-between arrangement at management’s discretion.
2. While Article 5.2 refers a term positions “normally” being created where the listed subsections
apply, there may be abnormal circumstances where a term position may be justified outside these
circumstances. Some of the listed circumstances themselves allow for abnormal situations, within
specified parameters.
3. None of the positions or related contracts here fall into any such abnormal situation.
4. Term positions are intended to be for temporary (although the term is not used) not ongoing
needs. When the position is not, based on an objective assessment, temporary as contemplated by
the agreement, the University’s option is to create a regular position, or choose not to create a
position at all.
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5. A position is not simply the offer of a class assignment. It is the offering of a job, at a
specified full-time equivalency, to undertake specified work in a program or discipline that may
well include but is not necessarily defined by the obligation to teach specific classes as
assigned. It may and often does include related graduate supervision and tutoring activity.
6. The appropriate focus on whether “the duties associated with a position are for a limited period
and not expected to be required to be performed after the specified date” is on duties in a broader
sense than just teaching a, or even the main, assigned class. It is the bundle of such duties.
This includes the possibility that some specific duties assigned within the bundle may vary from
year to year.
7. The test in Article 5(2)(d) is twofold; to be for a limited period and not expected to be
required further.
8. The forward looking assessment required by 5(2)(d) is to be made at the time the position is
created and its regular or temporary character decided upon.
9. A further need, demonstrated at the end of a temporary position, can result in a further
temporary position being justified, if the same test is met once again. However, such repeated
circumstances provide increasingly strong evidence that the earlier assessments may not have been
bona fide. The evidence once again must be weighed objectively.
I find that the University has created temporary positions and entered into contracts with Dr.
Specht and Dr. Langford when, at the outset, it was objectively reasonable to conclude that the
work involved would not come to an end of the fixed dates chosen, and that a need for services of
academic co-ordinators of the type they undertook required the creation of regular positions. This
conclusion does not mean that these regular positions would have each been at the 1.0 FTE level.
I have concluded that those administering the MA-IS program, and the University, have simply
operated on the assumption that all MA-IS positions must of necessity have to be term positions “to
ensure flexibility”. That was not the appropriate test. There may have also been a need for some
term positions even had some regular positions been created and filed. However, the 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
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demands through the excessive creation and use of term positions violated the provisions of the
collective agreement.
I accept that this result does not, in any automatic sense, result in an automatic conversion of
the grievor’s status to regular appointees. 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. From the evidence of the ongoing workloads
for these two grievors and others, I find it is probable that these positions would have been in
the range of 0.5 to 0.6 FTE’s, subject to some of the same flexibilities as to assigned work that
have been applied to the term positions.
Had such regular positions been created, the University policies would presumptively have required
that such positions be filed through open competition. It is very likely that the grievors would
each have applied for and received those positions and succeeded in passing through a two year
probation period if imposed. However, the permanent nature of any such offerings might also have
attracted other applicants. 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.
Despite the University’s argument that this agreement has no automatic conversion clause, a point
with which I generally agree, it does have Article 3.1.6. If I am correct in any conclusion that,
at least beyond the first few positions, regular positions were the only appropriate option, then
the only answer to why Article 3.1.6 would not have applied to Dr. Specht and Dr. Langford is that
they were not “hired through open competition”. But that was a result of the University’s own
failure to follow its policies. Nothing suggests that these grievors had not “satisfactorily been
performing the same job duties for at least 18 months.” Indeed their resumes, evaluations and
repeated rehirings suggests quite the contrary.
The other Article that contemplates a form of automatic conversion is Article 5.2(i). The evidence
before me establishes that the program’s three year window under this Article expired before the
grievors began receiving term contracts. I am unable to conclude that automatic conversion should
have applied to them under this Article.
The question is what remedy is appropriate to rectify the breaches for the Association and the
grievors and to set things on the right path for contract compliance going forward. Damages to Dr.
Specht and Dr. Langford is an option, as is an order to establish compliant positions for the
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future and direct that they be filled by the grievors. Rather than make any such ruling now, I
remit the matter back to the parties, including the two specific grievors, to enable them to
fashion suitable remedies themselves. It may be that the remedies sought in the grievance no longer
fit with Dr. Specht and Dr. Langford’s plans for the future. They may or may not still wish to
continue their work but as regular position holders under suitable terms. I can say now that I do
not find Association damages, payable to a charity, an appropriate option, although it is something
the parties are free to agree upon. I reserve jurisdiction to settle the matter of remedies.
I will proceed to establish a process to do so unless the parties, within 45 days of this
award, advise me that they have reached a consensual solution.
I wish to thank counsel for their helpful assistance and submissions throughout these proceedings.
DATED at Edmonton, Alberta this 7th day of August, 2018.
ANDREW C.L. SIMS, Q.C.
