The URL can be used to link to this page

Home My WebLink About2018-1566.Sauerzopf.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# 2018-1566 UNION# 2018-0678-0008 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Sauerzopf) 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] Justin Sauerzopf filed a grievance dated August 2, 2018 claiming that he was denied the transfer of his fixed term contract from the Sudbury Jail to the Algoma Treatment and Remand Center (“ATRC”) in Sault Ste. Marie; that the Employer failed to take into account his family status issues, and applied its policy rigidly. He seeks compensation for lost wages and full recognition of all seniority. [8] The grievor was hired as a fixed term Correctional Officer (“CO”) at the Sudbury Jail on May 23, 2017. By an email sent to the Employer on July 8, 2017 he requested to transfer his fixed term contract to the ATRC. He indicated that he had “extenuating circumstances that demonstrate the urgent need for compassionate -3- transfer to Sault Ste. Marie”. The grievor conceded that he understood that this was “a little unorthodox way of doing this”, but he also stated that he was “willing to terminate my position at the Sudbury Jail to acquire the position at ATRC”. [9] The Employer advised the grievor by email dated July 10, 2017 that Mr. Sauerzopf had been offered and accepted a position at the Sudbury Jail; that fixed term contract staff must complete a year of service at their current facility prior to being eligible for a transfer of contract; that there were already other employee requests for transfer to the ATRC on compassionate grounds; and that once he had been at the Sudbury Jail for a year, and if there was a need at ATRC for a fixed term CO, his request to transfer would be considered. [10] Notwithstanding apparently understanding what the policy was, the grievor continued to request that he be transferred to ATRC on compassionate grounds. This was despite the fact that he had specifically taken the job at the Sudbury Jail knowing that his family needed him in Sault Ste. Marie. [11] On October 27, 2017 the grievor gave email notice of his resignation from the Sudbury Jail in order to take a job at the Ministry of Labour in Sault Ste. Marie, commencing on November 14, 2017. [12] On March 30, 2018 the grievor completed his contract with the Ministry of Labour, and on May 14, 2018 he started a new fixed term contract as a CO at the ATRC. [13] The Grievor takes the position that all of his hours, from the Sudbury Jail on, should count towards his fixed term seniority and for the purposes of setting the grievor’s Continuous Service Date (“CSD”). [14] Having considered the facts and the submissions of the parties, I am of the view that this grievance must fail. The Grievor indicated that he knew that fixed term contract COs had to complete one year of service at the institution at which they had been hired before they could be considered for transfer. The grievor was also made aware that there were other people who were ahead of him on the transfer list to the ATRC, and that they too were seeking transfers on compassionate grounds. [15] The grievor ultimately resigned from his employment as a fixed term CO in Sudbury in order to take a job at the Ministry of Labour in Sault Ste. Marie as of November 2017. That resignation resulted in a break in service pursuant to Article 18.4 of the collective agreement. Article 18.4 states that “Continuous service shall be deemed to have terminated if: (a) an employee resigns or retires;…”. In accordance with Article 18.4, the grievor’s resignation deems his continuous service up to that point to have terminated, and he began anew as an employee at the Ministry of Labour. [16] This issue has been determined by the Board on a number of occasions including in the following decisions: OPSEU (Wiles) v. Ontario (MCSCS), GSB#2016-0300, 2016-0695, 2016-0696, December 6, 2016 (Briggs); OPSEU (Sutherland) v. Ontario (MCSCS), GSB#2016-0461, September 11, 2017 (Briggs); and, OPSEU (Bourgeois) v. Ontario (MCSCS), GSB#2017-0503, November 6, 2017 (Briggs). -4- Nothing on the facts before me in this case make the grievor’s situation much different from those cases. This is not a matter of discrimination on the basis of family status: it is simply an application of the transfer policy and the terms of the collective agreement. For all purposes, including for the purpose of rollovers, the grievor is not allowed to carry his seniority from the time that he was a fixed term CO at the Sudbury Jail into his position at the Ministry of Labour, and his subsequent fixed term CO position at the ATRC, because he resigned from his position at the Sudbury Jail. That caused a break in his service. However, it is to be noted that there was no break in the grievor’s service for the period between when he completed his contract with the Ministry of Labour on March 30, 2018 and when he got a fixed term contract as a CO at the ATRC on May 14, 2018 because that period was of less than 13 weeks duration (Article 18.1.1(b)). [17] For the reasons outlined above, this grievance is denied. Dated at Toronto, Ontario this 25th day of April, 2019. “Gail Misra” ______________________ Gail Misra, Arbitrator