On April 26, 2018 the Federal Public Sector Labour and Employment Board (the “Board”) released its long-awaited decision in this matter. The decision deals with a grievance filed by CMCFA member, Dr. Michael Hurley, a former UT in the English department at the Royal Military College of Canada (“RMC”). Dr. Hurley filed the grievance after RMC Principal, Dr. Harry Kowal, refused to approve his three-part retirement plan.

Background

Dr. Hurley joined RMC in 1988. In January, 2015 he met with Dr. Kowal to express his intention to retire effective January, 2018. In return for providing three (3) years advance notice of his retirement, Dr. Hurley requested that Dr. Kowal approve his retirement plan which consisted of the following items:

1. A revised performance evaluation scheme tied to pay resulting in double increments for the last three (3) years of employment;
2. A sabbatical leave; and
3. Course relief following the sabbatical to allow for additional time to complete his scholarly activities prior to retirement.

Dr. Kowal agreed to provide Dr. Hurley with a sabbatical leave as he was entitled to that right under article 18 of the Collective Agreement. However, Dr. Kowal refused to approve the other two (2) components of Dr. Hurley’s retirement plan on the basis that such items are not provided for in the Collective Agreement.

Dr. Hurley and the CMCFA grieved Dr. Kowal’s decision and took the position that Article 8 of the Collective Agreement gave Dr. Hurley the right to both the revised performance evaluation scheme and course relief following sabbatical. Article 8 states that in appropriate circumstances, established past practices will be inferentially incorporated into the Collective Agreement. In particular, Article 8 provides as follows:

8.01 Where this Agreement is silent on working conditions, the conditions existing immediately before the date of this Agreement shall continue to apply provided that:

1. they are not inconsistent with the Agreement;
2. they are reasonable, certain and known;
3. they may be included in this Agreement in accordance with the Public Service Labour Relations Act; and
4. they are carried out in a fair and equitable manner.

8.02 The onus of establishing an existing practice within the meaning of 8.01 shall rest on the party who alleges the existence of same.

At the hearing, the CMCFA argued that a past practice exists whereby a UT who provides three (3) years of notice of retirement will not only receive a sabbatical if eligible, but will also be entitled to a revised performance evaluation scheme and course relief.

The Board’s Decision

Ultimately, the Board agreed with the CMCFA that a past practice exists with respect to a revised performance evaluation scheme. That past practice was reduced to writing in a July 1, 2007 Memorandum of Agreement (“MOA”) and the Board held that the MOA meets the requirements set out in Article 8 of the Collective Agreement. As such, a UT in Dr. Hurley’s position is entitled to receive the item by virtue of the Collective Agreement and that entitlement cannot be extinguished at the whim of the Principal.

In order to access the revised performance evaluation scheme set out in the MOA, the Board held that a UT must first submit the signed retirement form needed to establish a retirement date. On the facts of this case, Dr. Hurley did not submit the retirement form as he did not wish to commit to an irrevocable retirement date three (3) years ahead of time unless, in return, he was assured he would receive all three (3) components of his retirement plan. The Board heard evidence that the practice of the former principal, Dr. Sokolsky, was to provide this assurance in the form of a letter before receiving the UT’s signed retirement notice (paras. 309, 311). However, the Board’s decision that the MOA constitutes a past practice under Article 8 means that a UT does not need such a letter to access the revised performance evaluation scheme set out in the MOA. Rather, a UT need only submit the signed retirement form to access the benefits of the MOA.

With respect to the issue of course relief following a sabbatical, the Board held that it does not have jurisdiction to determine that issue. Nevertheless, the Board did go on to offer its non-binding opinion on the issue. According to the Board, it is unlikely that Article 8 will apply to course relief following a sabbatical since the issue of course relief is expressly addressed in Article 13.08 of the Collective Agreement. In order for Article 8 to apply, the Collective Agreement must be silent on the topic. Article 13.08 states:

13.08 the teaching workload of a UT may vary materially from the normal average teaching workload of UTs in his or her academic department or equivalent unit due to the following factors:

1. the number of hours devoted to administrative duties; and
2. the level of productive scholarly activity, it being understood that greater than normal involvement in scholarly activity may not result in a reduction in teaching workload, unless such reduction can be accommodated within the resources accorded to the department.

Article 13.08 would apply to Dr. Hurley’s situation but it does not give rise to an automatic right to course relief. Course relief will only be granted where it can be accommodated within the resources of the particular department, and the Board heard testimony from both Dr. Bates and Dr. Kowal that the authority to grant course relief lies with the department head, who is “the best person to decide if the department can get along without the UT” (para. 85; also para. 338).

Take Away for CMCFA Members

The Board has now confirmed that CMCFA members who provide three (3) years notice of retirement are entitled to a revised performance evaluation scheme tied to pay resulting in double increments for the last three (3) years of employment. Such members are also entitled to a sabbatical leave in accordance with Article 18 of the Collective Agreement, and may also receive course relief following a sabbatical if the purpose is to focus on productive scholarly activity and the request can be accommodated within the resources of the department.

If you are considering retirement and wish to take advantage of any of the entitlements discussed above, you should contact the CMCFA for further information.

The full text of the decision is available at this link.

N.B. Because the length of the decision makes it easy to confuse the adjudicator’s summary of the evidence and the parties’ arguments with the adjudicator’s own analysis, we provide an outline of the decision and its major sections as well as a complete outline.