The case was heard by an arbitration board chaired by Claude H. Foisy, Q.C., with Marion Perrin as the APUO nominee and Ken Davey as the employer nominee. Darryl Grandbois represented the employer and John Henderson represented the APUO.

The case involved two actions by the employer, one being a removal from class in the fall of 1996, and the other being a 4-month suspension imposed under 39.4, for the period January to April 1997, for allegedly refusing or resisting to teach the earlier assigned course at the undergraduate level and refusing to post office hours and/or availability pursuant to 21.1.3 of the collective agreement.

In addition to contesting the merits of the employer’s decisions to remove the member from class and discipline her, APUO argued that a number of improprieties took place in contravention of the principles of natural justice or procedural fairness.  On this last point, the employer argued that the principle of natural justice was not applicable under a collective agreement.

The decision

In the award rendered 6 March 1998, the board of arbitration declared the removal from class to have been inappropriate and contrary to the principles of natural justice;  the University was ordered to write a letter of apology to the member.  The board also rejected the employer’s claim that there had been an unwillingness to teach the course or that the professor’s approach was inappropriate;  thus, the discipline (4 month suspension) which had been imposed with respect to the member's teaching of the course was not justified.  However, the board did find the member to have violated 21.1.3(b) of the collective agreement by not posting office hours as required, and ordered a 3-day suspension without pay as a penalty.

Background

The situation arose out of a course assigned to the member for the fall of 1996.  This course was her first undergraduate course after fourteen years of university level teaching, all at the graduate level. The same course had been assigned the previous year, but had been removed as part a settlement of a grievance related to her workload assignment.  The member testified that the delivery of the course was to consist of one major research project where the students would be required to use a reflective approach, with the class divided into four groups of eighteen students. 

The member had been assigned a teaching assistant who was to be involved with the course. Between the first and second class, the teaching assistant received a telephone call from a student who said she was speaking on behalf of a group of students.  The student expressed concerns over the size of the groups as well as the member's manner and course organization.  The teaching assistant passed this information on to the member, who then decided to modify her planned approach for the next two classes.  Prior to the second class, the Dean, Vice-Dean and Program Director met to discuss the course, with the Program Director explaining that a number of students wanted to meet with the dean and that the program was in jeopardy.  Later that day, the Dean met with five students.  The Dean explained to the students that if they wanted him to act, he needed something in writing. 

Following the second class, the Dean received a number of written complaints, one of which was supported by a note signed by fifty-five students.  These letters mainly complained about the way in which the course was given, the size of the groups, access to the professor, and the professor’s manner.  The Dean testified that, based on these complaints and given the urgency to act, he decided to relieve the member from the class and assign another professor.  The Dean then informed the member of his decision in a letter, asking her to comment on the complaints and advising her that she was immediately removed from the class.  Before advising the member that she was removed, the Dean did not discuss the matter with her nor any of the complaints raised with him by the students.

Subsequent to the removal, the Dean conducted an investigation which included interviewing eleven students as well as the teaching assistant, and meeting with the member.  The Dean then decided to recommend a 3-month suspension based on the following paragraphs of the collective agreement:  21.1.3(c) .... duty to inform students ... regarding .... requirements... evaluation methods ... projects ....; 21.1.3(b)  posting of office hours;  21.1.3(a)  ...... teach the courses assigned .....; and 21.1.2(a)  ...  foster and maintain a productive and orderly learning environment.  The member disputed the allegations and, with particular reference to the issue of office hours, maintained that the question was not raised by the students in their letters and that she had provided her availability to the students, both in class and at her office door.

The Executive Committee of the Board of Governors imposed a 4-month suspension without pay from January to April, citing lack of availability in class, refusal to post availability, a need for the discipline to be visible to students, and a need to impose a 4-month suspension so that the professor would not receive full salary in April with no assigned duties.   The Executive Committee of the Board, in its deliberations, also took note of the prior grievance over course assignments, and concluded that the member was resisting teaching at the undergraduate level.

The removal from class

With respect to the removal from class, the board of arbitration noted that such an action has great consequences for the professor, as her reputation may be affected.  The board rejected the employer’s argument that the Dean could do nothing without a written complaint and that when the complaints were received, he strictly followed the provisions of the agreement.  The board noted the meeting between the Dean, Vice-Dean and Director as well as the Dean’s meeting with the students later the same day, and questioned why the member was not met following the Dean’s receipt of that information and before the second class, particularly since the member's approach to teaching the course was not considered a problem by the Dean.  The board concluded:

            .....maybe after obtaining the grievor’s explanation [the Dean] could have stood by her in front of the students.  Adjustments could have been suggested and made before the second class.  If the Dean, after meeting with the member, was still of the opinion that the success of the course was in jeopardy, he still could have removed her.

The board of arbitration went on to state that it was left with the impression that the intention was to wait until a case could be made against the member.  The board found that the failure to provide notice and to give the member the opportunity to explain herself constituted an important breach of procedural fairness and natural justice sufficient to void the action entirely.

The 4-month suspension

The APUO argued a number of issues related to procedural fairness with respect to the decision to suspend the member.  Of these, the board of arbitration accepted the argument that the Executive Committee improperly considered issues without notice to the member, namely the grievance filed by the member the previous year regarding the course assignment, and used that information as a basis for concluding that the member was resisting teaching at the undergraduate level.  The board of arbitration found that since the Dean’s recommendation did not allude to the former grievance, the member would have had no prior notice of the issue being considered and no opportunity to explain the circumstances surrounding that grievance and the relationship between that grievance and the present situation.  As such, the consideration by the Executive Committee of the earlier grievance and the conclusion it drew from it were unwarranted in the circumstances and a breach of procedural fairness.

With respect to the employer’s argument that the member, by her attitude and actions, had refused to teach the course assigned to her, the board of arbitration stated that the allegations contained in the complaints did not conform to the evidence heard by the board.  The board stated:

            ... it is clear that the member, from the outset, decided to teach the course in a manner where the students would learn the whys and that her approach would not be conventional. ... the member may have made an error in the manner in which she decided to teach the course but that, in our opinion, falls within the discretion given to a professor to chart her teaching.

            .......

            It is not because students would prefer a more secure environment that a new approach to teaching is improper.

            .......

            Summing up, we find that although the member could have consulted before giving her first undergraduate course, we cannot find that the approach and the manner in which she gave the course evidenced her unwillingness to give the course.  It is not because the grievor’s approach to teaching the course would have had the students working more and was less palatable to them, that it was inappropriate.

Posting office hours

Part of the employer’s case was based on the allegation that the member had refused to post her availability or office hours.  The member explained that she had never received the complaint that purportedly raised the issue of office hours and, therefore, was not properly afforded the opportunity to address that issue.  With respect to her availability, she explained how she did make herself available to the students and how she had communicated that availability to them.  Although there was contradictory evidence as to the forwarding of a copy of that specific complaint to the member, the board of arbitration concluded that she was not prejudiced by the situation.  The board noted that the member, in her reply which was sent to the Executive Committee, addressed the merit of the charges.

On the facts, the board of arbitration found that the member did not post a number of regularly scheduled office hours at her office door, but rather had apprised her students of how they could reach her.  This was determined to be a breach of 21.1.3(b) of the collective agreement.  The board clarified the meaning of that requirement under the collective agreement to post, at the office door, “precise dates and time at which the professor is available for consultation at her office.”  The Association had argued that it was discriminatory to discipline the member regarding a failure to post office hours when there was evidence that a number of professors in the faculty also did not post office hours during the relevant time period.  The board of arbitration found that in the context of the university setting, it was not improper for a dean to refrain from disciplining professors at the very moment a breach of such a provision occurs, but rather to warn them that discipline would follow if a complaint was filed.  The board concluded that since the member was warned like the other professors that non-compliance could result in discipline if a complaint was filed, there was no discrimination under the circumstances.

In determining the appropriate penalty in this particular case for the failure to post office hours at her door, the board of arbitration took into account the mitigating factor that the member had, in fact, communicated her availability to the students;  the board ordered a three day suspension without pay.