MS educator ‘aptly described as a unicorn’: Arbitrator
A professor was hired by the University of Saskatchewan as an independent contractor to perform enhanced multiple sclerosis (MS) research at the university.
“The appointment does not create an employment or other legal relationship with the college or the university,” said a letter sent to Michael Levin on Nov. 14, 2016, that welcomed him to the institution.
The appointment was effective Jan. 1, 2017, and was scheduled to run until Dec. 31, 2023.
The contract called for Levin’s work to be funded by the Saskatoon City Hospital Foundation and for Levin to be responsible for his own income tax filings. It also said he was an independent contractor.
On April 20, 2017, the University of Saskatchewan Faculty Association (USFA) grieved the categorization as a contractor and asked the university to immediately declare Levin an employee and to deduct union dues.
“Levin is not an employee of the university,” said an April 28 letter in response.
“In a three-party contract for services, he has agreed to carry out his work in affiliation with the College of Medicine and the Saskatoon Health Region as an independent contractor.”
The association grieved this response on May 3.
The university argued that no provisions exist in the collective agreement that prohibit contracting out and it was well within its rights to do so when it hired Levin as an independent contractor.
USFA countered and said a memorandum of understanding that said the “employer agrees that when establishing academic positions funded from sources other than the university operating budget, that the terms and conditions of the 2007 to 2009 collective agreement… shall apply in its entirety to such appointments,” which it said meant that Levin worked in an academic position and, therefore, he was an employee.
However, arbitrator Andrew Sims ruled that Levin’s exclusive contact language precluded him from being part of the bargaining unit.
“Levin is aptly described as ‘a unicorn;’ an unique appointee who has taken on unique challenges in terms of his research and in terms of assisting the health-care system meet the challenge of multiple sclerosis. A major factor distinguishing Levin from other faculty members, and other research chairs, is this commitment to not only the university but to the objectives of what was the health region and is now the provincial health authority.”
Levin’s commitment to the provincial health system (which called for him to spend 20 per cent of his time as a clinician), made him a product of two masters, said Sims.
“By providing the type of clinical services he has contracted to provide, and by being located in the Saskatoon City Hospital, he is also to a significant degree integrated into the hospital and the health-care system. He is a key actor in the provision of clinical care for MS patients throughout the province and plays a role in educating other health-care professionals involved in MS treatment. His feet are not firmly in one enterprise or the other.”
In the end, the association failed to establish Levin was an employee, he said.
“Having weighed the various factors, my conclusion is that Levin is an independent contractor and not an employee for the purposes of this bargaining relationship. That is what his contract and his appointment says, and while form cannot prevail over substance, I find the substantive terms in his contract overall support its form. None of the evidence presented shows this to be a sham or self-declared mechanism to avoid collective agreement obligations,” said Sims.
Reference: University of Saskatchewan and University of Saskatchewan Faculty Association. Andrew Sims — arbitrator. John Beckman, Amelia Lowe-Muller for the employer. Gary Bainbridge for the employee. Feb. 6, 2019.
“The appointment does not create an employment or other legal relationship with the college or the university,” said a letter sent to Michael Levin on Nov. 14, 2016, that welcomed him to the institution.
The appointment was effective Jan. 1, 2017, and was scheduled to run until Dec. 31, 2023.
The contract called for Levin’s work to be funded by the Saskatoon City Hospital Foundation and for Levin to be responsible for his own income tax filings. It also said he was an independent contractor.
On April 20, 2017, the University of Saskatchewan Faculty Association (USFA) grieved the categorization as a contractor and asked the university to immediately declare Levin an employee and to deduct union dues.
“Levin is not an employee of the university,” said an April 28 letter in response.
“In a three-party contract for services, he has agreed to carry out his work in affiliation with the College of Medicine and the Saskatoon Health Region as an independent contractor.”
The association grieved this response on May 3.
The university argued that no provisions exist in the collective agreement that prohibit contracting out and it was well within its rights to do so when it hired Levin as an independent contractor.
USFA countered and said a memorandum of understanding that said the “employer agrees that when establishing academic positions funded from sources other than the university operating budget, that the terms and conditions of the 2007 to 2009 collective agreement… shall apply in its entirety to such appointments,” which it said meant that Levin worked in an academic position and, therefore, he was an employee.
However, arbitrator Andrew Sims ruled that Levin’s exclusive contact language precluded him from being part of the bargaining unit.
“Levin is aptly described as ‘a unicorn;’ an unique appointee who has taken on unique challenges in terms of his research and in terms of assisting the health-care system meet the challenge of multiple sclerosis. A major factor distinguishing Levin from other faculty members, and other research chairs, is this commitment to not only the university but to the objectives of what was the health region and is now the provincial health authority.”
Levin’s commitment to the provincial health system (which called for him to spend 20 per cent of his time as a clinician), made him a product of two masters, said Sims.
“By providing the type of clinical services he has contracted to provide, and by being located in the Saskatoon City Hospital, he is also to a significant degree integrated into the hospital and the health-care system. He is a key actor in the provision of clinical care for MS patients throughout the province and plays a role in educating other health-care professionals involved in MS treatment. His feet are not firmly in one enterprise or the other.”
In the end, the association failed to establish Levin was an employee, he said.
“Having weighed the various factors, my conclusion is that Levin is an independent contractor and not an employee for the purposes of this bargaining relationship. That is what his contract and his appointment says, and while form cannot prevail over substance, I find the substantive terms in his contract overall support its form. None of the evidence presented shows this to be a sham or self-declared mechanism to avoid collective agreement obligations,” said Sims.
Reference: University of Saskatchewan and University of Saskatchewan Faculty Association. Andrew Sims — arbitrator. John Beckman, Amelia Lowe-Muller for the employer. Gary Bainbridge for the employee. Feb. 6, 2019.
