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Home My WebLink About2014-3586.Arcese.15-03-20 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2014-3586 UNION#2014-0234-0490 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Arcese) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Felicity D. Briggs Vice-Chair FOR THE UNION Nick Mustari Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Greg Gledhill Treasury Board Secretariat Centre for Employee Relations Employee Relations Advisor HEARING January 22, March 9, 2015 - 2 - Decision [1] In September of 1996 the Ministry of Correctional Services notified the Union and employees at a number of provincial correctional institutions that their facilities would be closed and/or restructured over the next few years. On June 6, 2000 and June 29, 2000 the Union filed policy and individual grievances that alleged various breaches of the Collective Agreement including Article 6 and Article 31.15 as well as grievances relating to the filling of Correctional Officer positions. In response to these grievances the parties entered into discussions and ultimately agreed upon two Memoranda of Settlement concerning the application of the collective agreement during the “first phase of the Ministry’s transition”. One memorandum, dated May 3, 2000 (hereinafter referred to as “MERC 1” (Ministry Employment Relations Committee)) outlined conditions for the correctional officers while the second, dated July 19, 2001 (hereinafter referred to as “MERC 2”) provided for the non-correctional officer staff. Both agreements were subject to ratification by respective principles and settled all of the grievances identified in the related MERC appendices, filed up to that point in time. [2] While it was agreed in each case that the settlements were “without prejudice or precedent to positions either the union or the employer may take on the same issues in future discussions”, the parties recognized that disputes might arise regarding the implementation of the memoranda. Accordingly, they agreed, at Part G, paragraph 8: The parties agree that they will request that Felicity Briggs, Vice Chair of the Grievance Settlement Board will be seized with resolving any disputes that arise from the implementation of this agreement. [3] It is this agreement that provides me with the jurisdiction to resolve the outstanding matters. - 3 - [4] Both MERC 1 and MERC 2 are lengthy and comprehensive documents that provide for the identification of vacancies and positions and the procedure for filling those positions as they become available throughout various phases of the restructuring. Given the complexity and size of the task of restructuring and decommissioning of institutions, it is not surprising that a number of grievances and disputes arose. This is another of the disputes that have arisen under the MERC Memorandum of Settlement. [5] When I was initially invited to hear theses transition disputes, the parties agreed that process to be followed for the determination of these matters would be virtually identical to that found in Article 22.16.2 which states: The mediator/arbitrator shall endeavour to assist the parties to settle the grievance by mediation. If the parties are unable to settle the grievance by mediation, the mediator/arbitrator shall determine the grievance by arbitration. When determining the grievance by arbitration, the mediator/arbitrator may limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate. The mediator/arbitrator shall give a succinct decision within five (5) days after completing proceedings, unless the parties agree otherwise. [6] The transition committee has dealt with dozens of grievances and complaints prior to the mediation/arbitration process. There have been many other grievances and issues raised before me that I have either assisted the parties to resolve or arbitrated. However, there are still a large number that have yet to be dealt with. It is because of the vast numbers of grievances that I have decided, in accordance with my jurisdiction to so determine, that grievances are to be presented by way of each party presenting a statement of the facts with accompanying submissions. Notwithstanding that some grievors might wish to attend and provide oral evidence, to date, this process has been efficient and has allowed the parties to remain relatively current with disputes that arise from the continuing transition process. - 4 - [7] Not surprisingly, in a few instances there has been some confusion about the certain facts or simply insufficient detail has been provided. On those occasions I have directed the parties to speak again with their principles to ascertain the facts or the rationale behind the particular outstanding matter. In each case this has been done to my satisfaction. [8] It is essential in this process to avoid accumulating a backlog of disputes. The task of resolving these issues in a timely fashion was, from the outset, a formidable one. With ongoing changes in Ministerial boundaries and other organizational alterations, the task has lately become larger, not smaller. It is for these reasons that the process I have outlined is appropriate in these circumstances. [9] The grievor, Anna Arcese, was hired as a fixed term Medical Clerk on May 9, 2013 and she worked in that capacity at Maplehurst Correctional Complex. According to the grievor she was told in early June of 2014 that the position that she had been working in was about to be posted. On June 16, 2014 she was notified that her employment would end as of October 3, 2014. When questioned her manager told her that she was not to be converted as she did not yet have sufficient time worked. On September 22, 2014 she was advised that her contract would be extended and her last day of work would be January 2, 2015. [10] In the meantime she applied for the position she had been working in and did not get the position. She asserts that because of that extension, she has done the same work in the same location for a period in excess of 18 months and she should have been converted. [11] After considering the submissions of the parties I am of the view that this grievance must be dismissed. Thirteen months after the grievor began to - 5 - work as a fixed term Medical Clerk the Employer determined it wanted to make the position a full time classified position. At the same time the Employer served notice on the grievor was her position would be terminated and she was given notice. The Employer has the inherent management’s right to make these decisions and there was nothing contrary to the Collective Agreement in it’s the actions that unfolded in this matter. [12] The Employer posted the position after the grievor had been a fixed term employee for approximately thirteen months. While I appreciate that the grievor’s contract was extended and she actually worked for eighteen months that extension does not mean that the position was hers or that the Employer was obliged to convert her into the position. As of June 2014, the position was a full time posted position to which all eligible employees had a right to apply. It was not the grievor’s position. [13] The grievance is denied. Dated at Toronto, Ontario this 20th day of March 2015. Felicity D. Briggs, Vice-Chair