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Home My WebLink About2015-1526.Seat.16-03-31 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#2015-1526 UNION#2015-5112-0127 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Seat) 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 Officers FOR THE EMPLOYER Greg Gledhill Treasury Board Secretariat Centre for Employee Relations Employee Relations Advisor HEARING November 17, 2015 - 2 - Decision [1] Since the spring of 2000 the parties have been meeting regularly to address matters of mutual interest which have arisen as the result of the Ministry of Community Safety and Correctional Services as well as the Ministry of Children and Youth Services restructuring initiatives around the Province. Through the MERC (Ministry Employment Relations Committee) a subcommittee was established to deal with issues arising from the transition process. The parties have negotiated a series of MERC agreements setting out the process for how organizational changes will unfold for Correctional and Youth Services staff and for non Correctional and non Youth Services staff. [2] The parties agreed that this Board would remain seized of all issues that arise through this process and it is this agreement that provides me the jurisdiction to resolve the outstanding matters. [3] Over the years as some institutions and/or youth centres decommissioned or reduced in size others were built or expanded. The parties have made efforts to identify vacancies and positions and the procedures for the filling of those positions as they become available. [4] The parties have also negotiated a number of agreements that provide for the “roll-over” of fixed term staff to regular (classified) employee status. [5] Hundreds of grievances have been filed as the result of the many changes that have taken place at provincial institutions. The transition subcommittee has, with the assistance of this Board, mediated numerous disputes. Others have come before this Board for disposition. [6] It was determined by this Board at the outset that the process for this disputes would be somewhat more expedient. To that end, grievances are presented by way of statements of fact and succinct submissions. On occasion clarification has - 3 - been sought from grievors and institutional managers at the request of the Board. This process has served the parties well. The decisions are without prejudice but attempt to provide guidance for future disputes. [7] Dr. Rajko Seat was a Psychologist 2 at Thistletown Regional Centre. He filed a grievance that alleges he should be classified as a Psychologist 2 at Toronto South Detention Centre (“TSDC”). He further alleged that his position should have been adjusted as the result of the position description report. [8] On August 22, 2013, the parties signed a cross-Ministry Memorandum of Agreement regarding job opportunities for job threatened employees at Thistletown at TSDC. One of the listed positions that would be available was “one TRC Psychologist 2 will be offered a Psychologist 1 position at TSDC. If accepted, the employee will continue for a period of six months.” [9] On December 19, 2013, the Employer wrote to the grievor and advised that he would be conditionally transferred as a Psychologist 2 to TSDC as of January 6, 2014. Accordingly, on February 24, 2014 the parties signed a Temporary Assignment Agreement. However, this document stated that the grievor would be working temporarily as a Psychologist 2 at TSDC from January 6, 2014 until March 31, 2014. The agreement stated that the position could be extended by agreement. [10] On February 28, 2014, the grievor received a letter confirming that he would be permanently assigned to TSDC. The letter also stated that his permanent position would begin March 3, 2014 as a Psychologist 2. [11] On July 30, 2014, the grievor received a letter that stated that his position at TSDC was classified as a Psychologist 1 and not a Psychologist 2. The letter indicated that an error had been made in both the December 19 2013 and February 28, 2014 letters. - 4 - [12] It was common ground that the grievor could have elected to exercise his rights under Article 20. However, he chose to apply for an assignment in accordance with the Cross-Ministry Memorandum of Agreement of April 22, 2013. [13] The Employer noted that the grievor was given job shadowing opportunities and a temporary assignment in an effort to allow it to ensure Dr. Seat’s skills were transferable into the Correctional environment. The grievor also had the opportunity of this period to determine if he wanted to continue to work in the Ministry of Community Safety and Correctional Services. [14] The Union stated that the grievor thought he was treated differentially because he knew of two other employees who were able to maintain their same positions in the move from one Ministry to the other. There was no of discrimination alleged on any prohibited ground under the Collective Agreement or Human Rights Code. The Union confirmed – when asked – that the two other positions the grievor referred to were cleaners. In any event, it was urged by the Union that the grievance should be upheld given the documents of December 19, 2013 and February 28, 2014. [15] The Employer contended that the letter of February 28, 2014, was issued in error. Indeed, there was no Psychologist 2 position in the complement at TSCD to offer. The Employer also directed the Board to the Cross-Ministry Agreement of August 22, 2013, which clearly stated that one Psychologist 2 would be offered a Psychologist 1 position. That was the clear intent and the express agreement of the parties and two typographical errors cannot change that agreement. [16] After a consideration of the facts and submissions in this matter I am of the view that the grievance must fail. I accept the Employer’s assertion that the reference to a Psychologist 2 in its correspondence was an error. A review of the document which brings about the transfer of the grievor, the August 22, 2013 Cross-Ministry Agreement, was clear that a “Psychologist 2 employee will be offered a Psychologist 1 position”. The grievor received the Cross-Ministry transfer - 5 - knowing that he would be classified as a Psychologist 1. The application itself makes clear that a Psychologist 2 may apply for a position “as per the MOA signed August 22, 2013”. [17] I appreciate that the grievor might be frustrated as the result of the error made by the Employer. However, errors made in individual communications cannot alter the terms of agreements made between the parties. [18] I disagree with the allegation that there was evidence of differential treatment. The cleaners referred to by the grievor in this contention kept their same classification because that was the agreed upon terms of the August 22, 2013 Cross-Ministry Agreement. To be clear, I heard no evidence of any discrimination. [19] It is worth noting that there were two other positions within the Agreement that dropped in the level of classification. It was the Employer’s assertion that this was due to the actual classifications available at that time. [20] For all of those reasons, the grievance is dismissed. Dated at Toronto, Ontario this 31st day of March 2016. Felicity D. Briggs, Vice Chair