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Home My WebLink About2017-1363.Palmer.19-04-25 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# 2017-1363 UNION# 2017-5112-0205 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Palmer) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Gail Misra Arbitrator FOR THE UNION Dan Sidsworth Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Al. J. Quinn Ministry of Community Safety and Correctional Services Senior Employee Transition Advisor HEARINGS January 18, 2019 and April 18, 2019 -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 these 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 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] Marie Palmer was a Receptionist/Clerical Support, OAG 6, at Thistletown Regional Centre (“Thistletown”) prior to the closure of that facility. On July 17, 2017 Ms. Palmer filed a grievance claiming a breach of Articles 7.4.1 and 7.4.2 of the collective agreement. [8] On August 22, 2013 the parties signed a Cross-Ministry Memorandum of Agreement regarding job opportunities at Toronto South Detention Centre (“TSDC”) for job threatened employees at Thistletown. The listed positions that would be available included “Two (2) TRC Office Administration (OAG) 6 employees that were offered Office Administration (OAG) 4 positions at TSDC”. -3- [9] Since Thistletown was closing, rather than going on the surplus list across the government, employees affected were told that they could choose a known transfer to the TSDC. On August 28, 2013 the grievor signed a document accepting one of the Office Administration OAG 4, positions at the TSDC. On September 23, 2013 the Employer wrote to the grievor advising her that she would be assigned to the TSDC as a Receptionist/Mail Clerk, OAG 4, position commencing on January 2, 2014. As such, as of September 23, 2013 the grievor was aware that she would be transferring from her Thistletown OAG 6 position to an OAG 4 position at TSDC. [10] Upon her transfer, and in accordance with both the terms of the collective agreement and the Cross-Ministry Agreement, the grievor received salary protection in accordance with Article 7.4.1 and the February 24, 2014 Addendum to the Cross Ministry Agreement. The Addendum stated that two Thistletown Office Administration OAG 6 employees, one of whom was the grievor, and one other affected Psychologist 2, would also receive the following protection: These positions will continue to get salary protection until they have reached the maximum of the TRC Office Administration (OAG) 6 and TRC Psychologist 2 positions. Any revision of the maximum salary of the former position that takes effect during the term of the collective agreement in which an employee starts the new assignment will be deemed to be the red-circled maximum salary. This information is considered part of the TSDC Cross Ministry Agreement dated August 22, 2014, and takes the place of the language that read, “If accepted, these employees will be paid their ‘TRC’ salary for a period of six months”. [11] Articles 7.4.1 and 7.4.2 state as follows: 7.4.1 Where, because of the abolition of a position, an employee is assigned: (a) from one position in a ministry to another position in the same ministry, or (b) from a position in one ministry to a position in another ministry, And the position to which he or she is assigned is in a class with a lower maximum salary than the maximum salary for the class of the position from which he or she was assigned, he or she shall continue to be entitled to salary progression based on merit to the maximum salary of the higher classification including any revision of the maximum salary of the higher classification that takes effect during the salary cycle in which the employee starts the new assignment. 7.4.2 Article 7.4.1 applies only where there is no position the employee is qualified for, and that he or she may be assigned to, and that is: (a) in the same classification that applied to the employee’s position before the position was abolished, or -4- (b) in a classification having the same maximum salary rate as the maximum salary rate of the classification that applied to the employee’s position before the position was abolished. [12] This case is similar to the situation in MCSCS v. OPSEU (Seat) GSB#2015-1526, March 31, 2016 (Briggs) and MCSCS v. OPSEU (Seat) GSB#2017-1367, November 6, 2017 (Briggs), wherein the grievor, a Psychologist 2 at Thistletown, who accepted a Psychologist 1 position at the TSDC at or around the same time as this grievor, later claimed he was improperly compensated and alleged violations of Articles 7.4.1 and 7.4.2 of the collective agreement. Those grievances were dismissed on much the same basis as here. In the March 2016 decision Vice Chair Briggs noted that that grievor could have elected to exercise his rights under Article 20, but had chosen to apply for an assignment in accordance with the Cross Ministry Memorandum of Agreement. He had done so knowing that he would be moving to a lower classification, which was what was available at the time. [13] After consideration of the facts and submissions in this matter, I am of the view that the grievance must fail. The grievor accepted the Cross-Ministry transfer knowing that she would be classified as a Receptionist/Mail Clerk, OAG 4, and that she would be leaving an OAG 6 position in order to have the certainty of having a transfer rather than going on the surplus list. She has received the full benefit of the salary protection as outlined above in the excerpt from the Addendum to Cross Ministry Agreement, dated February 24, 2014. I note that protection is essentially in accordance with Article 7.4.1 of the collective agreement. [14] For all of the above reasons, this grievance is dismissed. Dated at Toronto, Ontario this 25th day of April, 2019. “Gail Misra” ______________________ Gail Misra, Arbitrator