AUFA Grieves Sick Leave Denial

AUFA is currently pursuing a grievance on behalf of a member whose sick leave has been unreasonably denied.

AUFA does not normally discuss the content of individual grievances. With the permission of the member involved, AUFA is making an exception because of the implications of this grievance for all members.

Background

In the summer of 2018, a member’s partner was diagnosed with a second instance of cancer. As a result of this diagnosis, the member developed a serious, stress-related illness. The member’s doctor put the member on sick leave during the autumn of 2018.

In late 2018, the member began to recover from the illness and sought a graduated return-to-work (RTW). When the RTW was requested, AU’s Employee Health Coordinator Darren Schmidtke requested:

...a medical note from [the member’s] doctor indicating any limitations/restrictions or [the member’s] return to work, what [the member’s] return to work would look like (days of the week/hours of the day) and the duration of such.

The member’s doctor provided a note indicating the member could return to work 2 days per week with flexible hours from January 8 to February 8. There were no restrictions on the member’s duties. The member returned to work on January 8.

The member was then notified that HR wanted to speak to the member about the doctor’s note. Sensing something was amiss, the member sought AUFA representation.

First Doctor’s Note Rejected

Article 16.5.4 requires members provide “satisfactory proof” of sickness to qualify for sick leave benefits. In a late January meeting (as the RTW was wrapping up), HR indicated it did not find the doctor’s note adequate (despite the note including the information requested in December).

HR also suggested that the member was not sick, but rather was using sick leave to provide compassionate care to the member’s partner. While the member did provide care for the member’s partner, the member’s medical leave was related to the member’s own illness.

 Schmidtke subsequently asserted:

The medical note in question indicates that [the member] is able to perform all aspects of work functions. It does not provide any reasoning for why days must be flexible, any indication of ongoing medical treatment or support or expected duration of this medical concern or any reasoning why the employee is unable to work the remaining 3 days of the week. It also does not indicate whether the employee is able to work from [the member’s] office or should be working from home.

The note did, in fact, indicate a duration (to February 8). Schmidtke also overlooked that the note did not identify any restrictions on the location of work (the member teleworked during this time, in consultation with the member’s supervisor).

 The other issues (reasoning and treatment) were not part of Schmidtke’s original request and, in AUFA’s opinion, are not information the employer requires to determine if the member is sick or not (and thus entitled to benefits and accommodation). Rather, the note itself comprises satisfactory proof of sickness. In the end, the member agreed to get a second, more detailed note from the member’s doctor in the hoping of avoiding a confrontation that would aggravate the member’s illness.

AU Interferes with AUFA Representation

 AU’s Abilities Management Policy allows AUFA members to request AUFA representation during a RTW accommodation. Some AUFA members seek representation because: (1) they are unaware of their rights; and, (2) they are not able to effectively advocate for themselves (due to the effects of their illness).

After the member agreed to get a second note, AU sent the member the form it wanted filled out. AU cut AUFA out of this communication. When confronted with this denial of representation, Schmidtke indicated:

The university will not share or discuss an employee’s sensitive medical information with anyone except the employee, or with members of the Human Resources team (as required).

The difficulty with Schmidtke’s statement is that the email contained a blank form (i.e., there was no medical information being shared).

Second Note Rejected; Vacation Time Goes Missing

The member provided a second note from the member’s doctor that contained a high-level overview of the symptoms of the member’s medical condition that limited the member’s ability to work full-time from January 8 to February 8.

Coincidentally, the member also queried the member’s available vacation time for 2018/19. The member found that 14 days of vacation leave were missing. Examining the time sheets, the member found that Schmidtke had been docking vacation leave instead of sick days during the member’s return to work. This vacation-leave docking was done without any notice to the member.

 (AU is permitted to use VT to cover periods of time when a member has exhausted sick leave benefits under Article 16.4.6. In this case, the member had not exhausted sick leave benefits. Rather, sick leave was being denied because AU asserted that two doctor’s notes were (somehow) not satisfactory proof of sickness).

AU then rejected the member’s second doctor’s note. It also refused to return the vacation leave, with Schmidtke asserting:

At this time, the vacation days will not be returned to you, as you accepted the remuneration and have access to a pay stub which would have shown the details as to how you were paid over this time period.

However, if your preference is that you want to have your vacation days reissued, please contact your HR Advisor, Seona Noseworthy, and arrangements can be made for you to reimburse AU for the Vacation days paid out to you, and we will have those days added back to your vacation bank.

Schmidtke’s assertion that failing to instantly dispute time sheets (which Schmidtke altered and submitted without notice to the member) somehow negates the grievance is incorrect. There is no requirement for AUFA members to instantly dispute errors on their time sheets. Failing to do so does not mean a member has accepted a violation of the contract.

The Grievance

AUFA grieved the theft of the 14 days of vacation time as well as the denial of the member’s representational rights. AUFA’s settlement offer was the return of the 14 days plus an agreement to allow AUFA representation of members as per AU’s own policy.

The reasons for advancing this grievance are:

1. The member has lost 14 days of vacation pay (>$5000).

2. AU is unreasonably interpreting “satisfactory proof” of sickness.

3. The effect of the vacation loss is discrimination on the basis of disability.

4. AU is interfering in AUFA’s representation of sick members.

Unusually, AU responded to both the informal and formal steps of the grievance in 2 days each. AU normally takes the full 15 and 10 working days for these steps respectively. The grievance (filed with HR Director Charlene Polege) was denied at both steps. A final effort to the settle the grievance with President Fassina (who is the executive officer in charge of HR) was also unsuccessful.

AUFA is currently advancing this grievance to arbitration. At arbitration, AUFA will also be also seeking damages for the violations of the member’s human rights and representational rights.

The Lessons

The grievance suggests several conclusions of relevance to all AUFA members:

1. You cannot trust HR. The job of HR is to advance the employer’s interests (which is usually saving money). HR is not there to support you or administer the collective agreement in an even-handed manner (although, sometimes, that can happen).

2. You need representation in accommodations. AU has recently developed a pattern of poorly handling accommodation and return-to-work issues. You are entitled to (and should seek) representation during any accommodation discussions, if only so you have a witness. You should also record all discussions in writing.

3. You should check your time sheets. This grievance is not the only instance of AU altering time sheets with no notice to AUFA members. If you have been on a sick leave recently, you should check your time sheets to ensure their accuracy. If you find a discrepancy, contact the AUFA office by phone (780 675-6282) or email (aufahq@athabascau.ca)..

4. You should (if possible) decline graduated RTWs. The purpose of gradually returning to work is to give you time to finish healing while adjusting to work again. AU’s tendency to hassle members on RTW suggests that, if your doctor gives you the option of a graduated RTW or staying off sick until you can return to work full time, you should seriously consider staying off sick to avoid making yourself a target. You may wish to print off this blog post and show it to your doctor if the topic comes up.

5. If your spidey-sense tingles, contact your union. AU is much more aggressively managing the employment relationship (e.g., we’ve had 14 discipline cases in the same time period in which we normally have only 1). You are entitled to consult your union about employment issues. Such consultations are confidential and can be made by phone (780 675-6282) or email (aufahq@athabascau.ca).

6. AU does not walk the talk on its I-Care values. While university administrators talk about integrity and respect, they do not live up to these values. Denying an obviously sick employee with two doctor’s notes (and whose partner also has cancer) access to sick leave and then stealing the member’s vacation leave without notice is despicable behaviour. Senior administrators did not correct this behaviour when given the chance. How is that acting with respect and integrity?

7. Company doctors are bad news. During collective bargaining, AU proposed new language allowing it to send members to see company-appointed doctors at HR’s discretion. Company doctors exist to save employers money by denying worker sick leave entitlements. This grievance demonstrates why AUFA should never agree to company doctor language.

 Bob Barnetson, Member

 AUFA Grievance Committee

What will my boss say about a strike?

When a work stoppage looms, a common employer tactic is for managers to try to undercut union support during one-on-one and small-group conversations.

Here are some things your boss might say and how you might respond.

Nobody wants a strike

Strikes and lockouts occur when employers and workers can't come to a mutually acceptable deal.

AUFA has offered a two-year wage freeze, small contract improvements, and additional negotiations on future wages. This is the same deal that tens of thousands of other public servants have gotten—including AU’s support staff.

AU is rejecting this pattern settlement. In effect, AU is saying it wants a strike more than it wants to give AUFA members a fair deal. 

A strike will hurt students 

If AU forces AUFA to strike, students will experience disruption in their studies and in administrative functions. A strike is also entirely avoidable if AU agrees to a fair deal. 

Everybody loses during a strike 

A strike entails costs to both AUFA members (foregone salary) and AU (work disruption). But not striking also entails costs, such as a wage freeze with no offsetting contract improvements. The costs of not striking are borne solely by AUFA members. 

But we’re like a family 

Your employer is not your family. AU hires you because they need work completed. AU is happy to watch your wages stagnate and to crank up your workload. As we saw in 2013, senior administrators will also happily lay you off when they bankrupt AU. Does that sound like a family?  

We can't afford to pay you more 

In 2018/19, AU recorded a surplus of more than $9 million. This was AU’s fifth surplus in six years. Enrollments were up more than 12% last year and are up again this year. AU can certainly afford to pay higher salaries. And AUFA is prepared to accept a wage freeze if AU will provide some offsetting contract gains. So this dispute isn't about what AU can afford to pay. It is about AU wanting to freeze your pay and give you nothing in return. 

AUFA will force you to strike 

AUFA is you and your coworkers. AUFA is also a democracy. A strike can only occur if a majority of voters vote in favour of a strike.  

A strike is also a last resort—something to be considered only after months of negotiations and mediation prove fruitless.  

In this way, a strike is something AU is forcing on AUFA members. 

The union can’t win a strike 

Unions win new collective agreements when the employer realizes the cost of a work stoppage is greater than the cost of a new contract. 

AU is highly dependent on tuition revenue (~50%). Even the threat of a strike is likely to cause enrollments to plummet. An actual strike will severely damage AU’s revenues and reputation. 

It would be a shame if AUFA was forced to threaten or to actually strike. But sometimes employers need to learn things the hard way. 

Bob Barnetson, Chair

AUFA Work Stoppage Planning Committee

AUFA wins permanent jobs and damages for term academics

 Earlier this month, AUFA successfully concluded a long-standing grievance about the mis-use of term staff in the MAIS program. The crux of the grievance was that AU had improperly used or extended limited-term appointments under Article 5 of the collective agreement.

The effect of this behaviour was to make the employment of 9 AUFA members precarious and deny them certain benefits under the collective agreement. The arbitration resulted in a combination of permanent appointments and/or damages paid to the affected AUFA members.

The Grievance

Article 5 outlines when it is appropriate to use limited-term positions.

Link to agreement

5.2 A term appointment shall be for a contractually limited period, and shall terminate automatically on a specified date. It shall not carry any implication that the term appointee will be considered for a regular appointment. A term appointment will normally be made where one or more of the following conditions apply:

d. the duties associated with the position are for a limited period and are not expected to be required to be performed after the specified date;

5.5 a. a term appointment may commence at any date during the year. With the exception of term appointments made under 5.2 c, f., and g., a term appointment will not normally exceed two (2) years;

AU repeatedly hired certain term employees, in some cases for more than a decade, to perform work that clearly was not temporary. Hiring these members as term employees made their employment precarious and denied them certain benefits under the collective agreement.

Arbitration and Decision

AUFA filed this grievance on April 14, 2015. After lengthy efforts to resolve this issue were unsuccessful, AUFA moved this grievance to arbitration. Hearings took place in November of 2016, with 5 witnesses testifying and over 150 exhibits submitted.

Arbitrator Andy Sims released a decision in August 2018 that determined:

[T]he ongoing nature of most courses, the proven demand for those courses, and thus the need for people like the grievors to teach those courses, establishes that the need could not reasonably be seen as term limited and unlikely to continue. I find the University’s handling of the MA-IS work demands through the excessive creation and use of term positions violated the provisions of the collective agreement. (pp. 67-68).

Had the agreement been followed rather than breached by the creation of temporary positions beyond the parameters of Article 5, the University would have either discontinued the MA-IS program or else, and this is in my view far more likely, created at least two regular positions for academic coordinators. … On balance, I find that, had the University appropriately created the regular positions I describe, the grievors would have applied for and obtained those positions. (p. 68)

Remedies

Sims gave the parties 45 days to work out reasonable remedies. AU declined to meaningfully engage in discussions of remedies with AUFA for the remainder of 2018.

In March of 2018, Sims mediated a settlement affecting the 9 AUFA members.

While the specifics of the settlements are confidential, each grievor has received some combination of a permanent appointment and/or damages.

AU has also agreed to no longer use term positions in a way that violates the collective agreement.

The Lessons

This grievance holds lessons, both about grievances and about Athabasca University as an employer:

1. Grievances are slow. The contract violations date back as far as 2005. It took 5 years to bring to about resolution after the grievance was filed. The pace of grievance arbitration is hard on grievors. Employers know this and drag their feet in the hope of wearing the grievors and the union down. An alternative to a grievance is taking direct action in the workplace.

2. Grievances are expensive. AUFA spent approximately $100,000 on this grievance (not including staff and volunteer time, which were substantial). AU’s costs were likely higher because their law firm charges more. Whatever AU saved in staffing costs (by violating the agreement) was almost certainly exceeded by its legal bill and the cost of remedies.

3. AU violates the contract. This decision is another example of AU egregiously violating the agreement that it signed. Such behaviour is profoundly damaging, both to the individuals’ affected and institutional morale. This is a pattern of behaviour at AU and you can read about another example here:

Link to another example.

4. AU drags out settlements. AU was unwilling to meet with AUFA to discuss remedies following the decision. AU’s executive will not even discuss grievances with AUFA. Consequently, AUFA was forced to return to the arbitrator (incurring additional costs for both parties) in order to get remedies for the members.

It is a shame that AU does not live up to its I-Care values of integrity (which entails “ethics, honesty and fairness in all our actions, engendering trust within our university community”) and respect (which includes “an environment in which every individual is valued”).

Jolene Armstrong, AUFA President

Conference Talking Points on AUFA Bargaining

Bargaining between AUFA and AU has reached a standstill. This raises the spectre of a strike or a lockout within the next year.

Some faculty members have asked how they might talk about this situation if it comes up during the upcoming conference season. The talking points below may be of use:

The Situation

• AUFA and AU have been in bargaining for more than a year, and without a contract, since July 1, 2018.

• AU is demanding a wage freeze despite a $9m surplus and >12% enrollment growth.

• AU is unprepared to offer any quid pro quo for the wage freeze.

• After 19 days of bargaining, it appears AUFA and AU have reached impasse.

Pathway to a Strike

• AUFA has requested informal mediation on June 17 and 18

• If this informal and formal mediation fails, AUFA will proceed towards a strike vote.

• AUFA expects a strike vote will be held in the early autumn.

• Once a strike mandate is in place, AUFA can strike with 72 hours of notice.

Impact of a Strike

• Approximately 5000 students will be without instruction (i.e., teaching or marking) for the duration of a strike.

• AU’s administrative functions (e.g., Registrar, IT, Library) will also be impeded.

What You Can Do to Help

• Students: Advise any students considering taking an AU course of the risk of a work stoppage, so that they may make an informed decision about enrolling.

• Faculty: Contact AU President Neil Fassina (neil.fassina@athabascau.ca) and ask him to conclude an agreement to avoid a strike.

Bob Barnetson, Chair

AUFA Work Stoppage Committee

barnetso@athabascau.ca

Update: AUFA Bargaining and Strike Preparation

Collective Bargaining

AUFA has been bargaining with the employer for 12 months and we have been without a contract for the past 10 months. After 19 days of bargaining, here is where we are:

• AUFA has agreed to about 15 small contract changes;

• AU is insisting upon a two-year agreement (ending June 30, 2020); and,

• AUFA is prepared to accept a two-year wage freeze but seeks something in exchange for the wage-freeze.

AUFA has offered a variety of items it would accept in exchange for a wage freeze. These include contract language improvements (including creating a meaningful path to regularization for term employees), one-time payments, and a wage-re-opener.

So far, AU has not accepted these options, and indeed has ruled many of them out. AU has also not proposed any meaningful quid pro quos itself.

Informal Mediation

AUFA and AU will be meeting with a government-appointed mediator (Mia Norrie) on June 17 and 18. Informal mediation was recommended by the Labour Board and essentially is a form of facilitated bargaining.

Essential Services Agreement (ESA)

The Labour Relations Code requires that public-sector employers have an ESA in place (or have the requirement waived) before the union and employer can proceed for formal mediation and onwards to a work stoppage.

AUFA proposed a draft ESA in November to ensure counselling services and practicum instruction in the GCAP program continue to function during a work stoppage. AUFA asserts the cessation of these functions creates risk to the health, safety, and/or life of the public.

AU disputes this characterization. AU’s reluctance to agree to an ESA may reflect that the existence of an ESA bars AU from hiring replacement workers (i.e., scabs) during a work stoppage.

An umpire (Deborah Howes) has been appointed by the Labour Board to determine if an ESA is necessary and, if so, which functions would be covered by it. AUFA and AU will be making submissions to the umpire in May and June (respectively) with a hearing date tentatively set for mid-July.

Formal Mediation

Assuming informal mediation does not bring about an agreement, once the ESA question has been decided, AUFA and/or AU can apply for formal mediation. Completion of formal mediation is required before a union can take a strike vote or an employer can take a lockout poll.

Formal mediation operates much like informal mediation. The difference is in the end point. At the end of formal mediation, a mediator may make a recommendation for a settlement that both sides are required to vote upon.

If both sides accept the recommendation, than the recommendation forms a new collective agreement. If one or both sides reject the recommendation, then mediation has failed and the parties proceed towards strike/lockout.

It is difficult to know what a mediator might recommend, but looking at provincial patterns suggests most agreements entail a two-year freeze, language improvements for the union, and a wage-re-opener for at least one year. This is the deal AU signed with AUPE just recently.

Strike Vote/Lockout Poll

If formal mediation does not result in a new collective agreement, then the union can apply to hold a strike vote to seek a strike mandate. A mandate requires greater than 50% support from the members who vote. A successful strike vote is required for a union to strike.

The employer can also apply to hold a lockout poll of the Board in order to lock workers out. A successful strike vote or a lockout poll is valid for 120 days.

While a successful strike vote can precipitate a work stoppage, it  often forces the employer back to the bargaining table. For example, the University of Regina had a successful vote, issued strike notice, and had a deal within 3 days.

Strike/Lock Out

Once a strike or lockout has been authorized, either party can give 72 hours of notice of a work stoppage.

A common employer tactic is to issue notice of a lockout and then bring workers back almost immediately. A lockout (or a strike) ends the existing collective agreement. This allows the employer to bring workers back to work under the employer’s terms (commonly the employer’s last offer).

The union’s only response to such a tactic is to issue strike notice (which allows its members to not return to work under the employer’s terms). For this reason, unions often hold a strike vote so that they can respond immediately to a lockout notice.

Is a Strike or Lockout Likely?

AU’s most recent communication (March 23) asserted that “AU believes that AUFA and AU remain close to an agreement.” On the surface, this appears to be true: only small compromises by AU would be required for an agreement.

Link to AU’s assertion.

Looking more deeply, two things suggest this statement is untrue:

1. AU is stalling bargaining. AU was unavailable to negotiate between February 13 and April 15,and it is again unable to negotiate between April 22 and June 17. No agreement is likely if the parties aren't talking. And AUFA and AU can't talk if AU won't come to the table.

2. AU is refusing to compromise. On April 22, AU categorically ruled out an agreement longer that two years or any financial payments to AUFA to offset the two zeros that AU is demanding. AU also did not advance any new positions about regularizing term staff (Article 5). No agreement is likely if AU demands two zeros but offers no offsetting improvements for AUFA members. AU’s position is particularly unreasonable in light of AU’s >$9m surplus and soaring enrolments.

What are the Next Steps?

• Information picket in Edmonton: May 21 at noon.

• Informal mediation: June 17 and 18.

• Information picket: June 17/18 (location TBD).

• ESA hearing: Tentatively June 19

• ESA decision: Date unknown (autumn)

• Formal mediation: Date unknown (autumn).

• Strike vote: Date unknown (autumn).

• Strike: Date unknown.

Who Can I Contact?

Information about bargaining: Eric Strikwerda, Chair, AUFA bargaining committee

Information about work stoppage: Bob Barnetson, Chair, AUFA work stoppage committee

Register concern about AU’s behaviour: Neil Fassina, President, AU

Bob Barnetson, Chair

AUFA Work Stoppage Committee

barnetso@athabascau.ca

Information Picket Held in Edmonton

AUFA Picketers outside of the Board of Governors Meeting

On March 28, Athabasca University Faculty Association (AUFA) members picketed the Athabasca University Board of Governors Dinner in Edmonton to express their dismay with a lack of progress in negotiation for a new collective agreement. A second picket is scheduled for April 15 in the town of Athabasca.

AUFA is presently offering a four-year deal that includes:

• A two-year wage freeze,

• Language to prevent further abuse of precariously employed term staff, and

• Additional negotiations about cost of living increases in the final two years of the agreement.

This agreement broadly mirrors settlements across Alberta’s public sector as well as the settlement Athabasca University just ratified with its support staff. It also addresses the University’s long-term mistreatment of term employees(an arbitration settlement last fall has forced the University to offer permanent appointments or make monetary settlements to numerous term employees).

The University’s Board of Governors turned down AUFA’s proposed deal during a Labour-Board-supervised vote on March 21. The University and AUFA have met 18 times since bargaining began in May of 2018. One additional bargaining date is scheduled for April 15.

The University and AUFA will be before the Labour Board to continue sorting out an essential services agreement on April 8. An essential services agreement is a prerequisite to formal mediation and a strike vote.

If a new collective agreement in not reached, 40,000 students from across Canada could be affected by a work stoppage in the early autumn. Faculty have been without a contract since June 30, 2018.

Clarification on AU's Election Communication

As you may be aware, VP Kristine Williamson sent an email regarding communications during the election period. Some members have expressed confusion and concern about the possible limitations. AUFA has sought information from Ms. Williamson, Elections Alberta, the Ministry, and sister organizations to clarify this communication.

Last month, the Government of Alberta published its Election Communication Policy, which restricts “government advertising and other communications activity to ensure that governments neither involve themselves in nor influence elections.” Universities are specifically mentioned as an entity that is to comply with this policy which is available online.

The Elections Act allows the University to continue with communications that are “continuous and “required” but the institution must ensure its communications are in step with provincial requirements during the writ period. The policy is not intended to limit or interfere with academic freedom and does not preclude staff members from engaging with political parties, their candidates or other political party representatives in conducting teaching and research.

Some key guidelines:

1. Athabasca University cannot make contributions (money or donations in-kind) to any political party or candidate running in an election.

2. University funds cannot be used to cover the cost of attending partisan political fundraising or campaign events.

3. University resources cannot be used to promote partisan political events or campaigns.

4. This would include using your AU email address for partisan political purposes, including distributing campaign information, forwarding campaign materials received in your AU email inbox, or using university mailing or email lists to distribute campaign materials.   

5. Election signs and posters for candidates may only be placed on the publicly available bulletin boards inside university buildings.  Signs placed elsewhere may be removed.

AUFA will reiterate that the University must recognize the right of students, employees, and professional and academic staff members to participate as individuals in the political process provided they do not use university resources to do so. The pursuit of academic activity related to the election is an important and acceptable activity, subject to applicable legislative frameworks. 

If you are planning an event or meeting during this time where you would normally consider extending invitations to provincial elected officials, please contact your supervisor first.

AUFA Executive Statement on New Zealand Terror Attack

AUFA expresses deeply heartfelt condolences to all affected by the recent mass shooting in New Zealand, followed by the shooting in the Netherlands on Monday. AUFA joins in the mourning of the victims of this terrorism. In this time of sorrow, AUFA reaffirms that it strongly condemns racism, discrimination, and religious intolerance of any kind and urges anyone who experiences threats to contact the AUFA office.  AUFA would also like to remind its members that if dealing with any distressed students, Athabasca University has a Counselling Services Unit that they can approach to address matters of a personal or sensitive nature. 

—Jolene Armstrong, AUFA President