Case Comment: Protecting Precarious Employment

In the College sector, partial-load Academic employees deal with a form of precarious employment that involves a series of semester long contracts. Because the work is divided into contracts which last a few months and are episodic in nature, disputes naturally arise with the Employer about what rights these workers have to further work, to the next contract, and how workers can assert their job security under the Collective Agreement.In re OPSEU Local 240 and Mohawk College (Weber Grievance), Arbitrator O’Neil determined two preliminary issues with respect to the job security rights of partial-load employees.In this grievance, the Employer terminated the Grievor’s employment allegedly for cause following the completion of the Winter 2020 semester, mere days prior to the end of the contract. The Union grieved that the Employer refused to re-hire the Grievor for the next semester in breach of their obligations under Article 26.10 of the Collective Agreement. The College raised two preliminary objections prior to the hearing: (1) that the Grievor did not explicitly challenge the termination on the grievance form and therefore had no status to grieve; and (2) that challenging the dismissal for cause was an expansion of the grievance. Arbitrator O’Neil rejected both preliminary objections.In dismissing the first objection Arbitrator O’Neil carefully reviews the structure of partial-load employment, recognizing the episodic nature of such employment and describes it as one, “which does not fit neatly with a more standard model of employment relationships.” The Arbitrator notes the numerous residual rights that attach, rights which extend past the end of that specific term of employment. Partial-load work is an off-and-on pattern of serial hiring and termination of contracts; the Collective Agreement envisions the possibility of re-employment after the end of a previous partial-load contract. The ‘off’ periods are not completely off; many options exist to bridge benefits suggesting a continuing relationship between the employer and employee past the end of a specific teaching contract.The Arbitrator concludes that a discharge for alleged cause only becomes clearest when the College does not offer/assign further work, despite priority in hiring for partial-load employees with prior service. That is, when the worker should be next in queue for another period of work and doesn’t get an offer, it is clear that the employer has really ended their whole employment relationship.The second objection was also dismissed on the basis that the drafting of the grievance properly articulated the issue at hand, the Grievor’s right to be rehired. It was not an expansion of the issues when the Union did not mention the Employer’s potential defence (termination was for cause) in the statement of grievance. Arbitrator O’Neil held that, “The reasons for the non-rehiring are the real issue between the parties, and there is nothing before me that convinces me that either party was in any doubt about that.”The preliminary decision did not ultimately deal with the standard of protection afforded to partial-load employees, however — just cause protection in the 2017-21 Collective Agreement was explicitly for full-time employees who had passed probation under Article 32.06. While it was implicit in the arguments of both Parties that a just cause standard would be argued in the litigation of the grievance, the preliminary did not confirm that a just cause standard necessarily applied to partial-load employees in all circumstances.Happily, since the decision in OPSEU Local 240 and Mohawk College, the new Collective Agreement has clarified that partial-load employees do, in fact, enjoy the just cause protections that apply to their full-time coworkers under Article 32.This Decision serves as a good overall description of the nature of partial-load employment in CAAT Academic, and provides a clear answer to the status of partial-load employees to grieve if their ongoing residual rights under Article 26 are violated, even between or after a period of contract employment.

---

Other Contract Enforcement Blawg posts