College Update

Arbitrator Finds Co-ordinator Duties Should Be Considered in Assessing Whether a Professor Has Sessional Status

College Update

Arbitrator Finds Co-ordinator Duties Should Be Considered in Assessing Whether a Professor Has Sessional Status

Date: April 23, 2018

An arbitration award in St. Lawrence College and OPSEU Local 417 rendered on March 26, 2018 is potentially very significant to the distribution of work between full-time, sessional, partial load and part-time professors by a college. This College Update reviews the award and its possible impact on college staffing decisions going forward.

In the award, Arbitrator Jasbir Parmar combined the hours the professor spent as a coordinator with the 12 teaching contact hours she was teaching as a partial load employee. This total workload, in the Arbitrator’s opinion, converted the partial load employee into a sessional employee and resulted in the employee rolling over into permanent full-time status due to having worked more than 12 in 24 months as a sessional employee, pursuant to Appendix V of the Collective Agreement.

This is the first time that an arbitrator has considered anything but teaching contact hours when distinguishing between different categories of professors. The Arbitrator found that the total workload of the professor should be considered because the definition of a sessional employee in the Collective Agreement, unlike the definition of a part-time or partial load employee, does not specifically reference teaching contact hours.

The Arbitrator compared the total workload to that of a full-time permanent professor who could also teach 12 hours per week and be assigned coordinator duties. The coordinating functions are functions that teachers perform and therefore she concluded that such activity should be considered when deciding whether an employee is a full-time sessional employee.

This is a problematic award. Partial load and sessional employees are both hired on a short-term contractual basis. Partial load employees are included in the bargaining unit while sessional employees are excluded. The parties to the Collective Agreement have historically always used the 12 teaching contact hours cut-off to identify and distinguish between a partial load contract employee and a sessional contract employee. If the contract employee teaches 7 to 12 hours they have consistently been included in the bargaining unit regardless of the other duties that have been assigned. In order to be a sessional employee and excluded from the bargaining unit the contract employee must teach more than 12 hours per week.

In the award, the Arbitrator relied on the fact that the parties define sessional employees as full-time employees without reference to the teaching contact hours they are assigned. Yet both partial load and sessional employees are each characterized in the Collective Agreement in a variety of clauses as “full-time” employees. The distinguishing feature to date has always been the number of teaching contact hours assigned.

Many colleges assign partial load employees additional non-teaching hours to do curriculum review, course development or to perform coordinating functions. Any of these additional hours could be used to convert partial load employees to sessional status using this award’s reasoning.

Colleges are advised to be cautious before assigning additional work to partial load employees. If this award is followed, there could be many employees in the system who would be removed from the bargaining unit and characterized as sessional. In addition, as occurred in this case, the college will need to ensure such employees do not inadvertently become permanent full-time employees due to exceeding the 12-in-24 rule when no such ongoing full-time position exists.

While this issue is likely to be argued again, colleges need to minimize their risks by carefully considering whether partial load employees should be assigned any additional work over their maximum 12 hour teaching contract, whether employees should be removed from the bargaining unit and characterized as sessional, or whether such non-teaching work is better assigned to part-time employees.

We are aware that the union has distributed the award broadly so it is likely that college locals will be raising the issue at the local level.

Should you require more information about the award or its potential impact on your college, please contact your regular Hicks Morley lawyer.

The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©