HomeMy WebLinkAbout2013-1446.Union.20-02-12 Decision
Crown 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#2013-1446, 2013-1574, 2013-1696
UNION#2013-0999-0049, 2013-0999-0063, 2013-0999-0069
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Union) Union
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The Crown in Right of Ontario
(Treasury Board Secretariat) Employer
BEFORE Reva Devins Arbitrator
FOR THE UNION Richard Blair
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER George Parris
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING January 23 and 28, 2020
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Decision
[1] These grievances are part of a series regarding the operation of the Transition
Exit Initiative, (“TEI”), under Appendix 46 of the Collective Agreement. The
parties agreed that the current matters should be determined in accordance
with Article 22.16 of the Collective Agreement.
[2] There are two groups of Grievors currently under consideration. The first group
held various administrative and maintenance positions in the Ministry of the
Solicitor General (“SOLGEN”) and the second group were Probation and
Parole Officers in the same Ministry.
[3] Prior to their retirement, the Grievors each requested a voluntary exit package
under TEI. The Employer considered their requests but did not approve them.
The Union alleges that the Employer failed to properly process and administer
the requests; specifically, that the Employer relied on a narrow set of facts, to
the exclusion of other relevant factors and, in so doing, fettered their discretion.
[4] The Employer maintains that it concluded that there was an ongoing need for
the Grievors’ positions and that, therefore, in its opinion, their exit from the
Ontario Public Service (“OPS”) would not support the Employer’s vision of
transformation. It further submitted that these grievances were virtually
identical to those considered in earlier cases where it was determined that the
Employer had properly exercised its discretion in similar circumstances.
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Agreed Statement of Facts and Stipulated Evidence
[5] The parties submitted an Agreed Statement of Fact and Stipulated Evidence
(“ASF”) with respect to the Grievors who held administrative and maintenance
positions:
1. A number of employees in various positions employed by the Ministry
of the Solicitor General (the “Ministry”) working at administrative and
maintenance positions applied for TEI between January 2013 to
December 2018 (the “TEI Applications”).
2. There were ten (10) individual applicants: Betti Fairley (Clerk, OAG 8),
Carol Luckhardt (Finance Clerk OAG 8), Angeliki Zanotti (Librarian),
Sue Hamilton (Personnel Clerk, OAG 9), Brenda Moffatt (Social
Worker 2), Deborah Maltby (Program Clerk, OAG 7), David Armstrong
(Maintenance Mechanic 3), Harvey Hill (Maintenance Mechanic 3),
James Mullen (Maintenance Carpenter) and Robert Murphy
(Maintenance Mechanic 3).
3. The Ministry did not approve any of the TEI Applications filed by the
above noted employees.
4. The Union filed grievances between January 2013 and December 2018
on behalf of the above-noted employees whose TEI applications were
not granted (the “TEI Grievances”).
5. For the purposes of these grievances, the Employer does not dispute
that the requirements of paragraph 2(i) of Appendix 46 were met. This
is without prejudice to other matters.
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6. It would be the Ministry’s evidence that it did not grant the above-noted
TEI Applications for the following reasons. At the time of the TEI
Applications and the TEI Grievances, the Ministry had no intention of
reducing the number of positions in the impacted institutions and the
exit of the above noted applicants would not support the transformation
of the Ontario Public Service. The Union does not have evidence to
the contrary.
7. Each of the grievors retired after their TEI application was filed and
remained pending.
a. Sue Hamilton applied for TEI on March 14, 2013 and retired on
February 1, 2014. She was rehired into her former position of
Human Resources Clerk on a fixed term contract on February 3,
2014 until January 1, 2016. She has worked on various contracts
since that time. She returned to her former position of Human
Resources Clerk which was renamed to Personnel Clerk position
on a fixed term contract on September 30, 2019. It will be the
Ministry’s evidence that her position of Personnel Clerk (Position #
00144753) at the Vanier Centre for Women continues to be
required. The Union does not have evidence to the contrary.
b. Angeliki Zanotti applied for TEI on March 14, 2013 retired on
October 31, 2014. It will be the Ministry’s evidence that her position
of Librarian Technician, Regular Part Time (Position # 00022801) at
the Vanier Centre for Women was filled after she left the position
and continues to be required. The Union does not have evidence to
the contrary.
c. Betti Fairley applied for TEI on November 3, 2014 and she retired
on May 31, 2015. It will be the Ministry’s evidence that her position
of General Records Clerk (Position #00022511) at the Maplehurst
Correctional Complex was filled on December 7, 2015 and
continues to be required. The Union does not have evidence to the
contrary.
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d. Carol Luckhardt applied for TEI on March 14, 2013 and retired on
February 1, 2014. It will be the Ministry’s evidence that her position
of Finance Admin Clerk (Position # 00145857) at the Vanier Centre
for Women was filled until August 10, 2015 and then filled again
from March 13, 2017 onwards and continues to be required. The
Union does not have evidence to the contrary.
e. Brenda Moffat applied for TEI on March 14, 2013 and retired on
February 1, 2014. It will be the Ministry’s evidence that her position
of Social Worker (Position # 00146020) at the Vanier Centre for
Women was filled and continued to be required. The Union does
not have evidence to the contrary.
f. Deborah Maltby applied for TEI on March 14, 2013 and retired on
February 1, 2014. It will be the Ministry’s evidence that her position
of Program Clerk (Position # 00144744) at the Vanier Centre for
Women was filled until October 26, 2015 and then again from May
1, 2017 to October 31, 2019. The Union does not have evidence to
the contrary.
g. David Armstrong applied for TEI on October 21, 2013 and retired on
September 1, 2014. It will be the Ministry’s evidence that his
position of Maintenance Mechanic 3 (Position #00027034) at the
Algoma Treatment and Remand Centre was filled and continues to
be required. The Union does not have evidence to the contrary.
h. Harvey Hill applied for TEI on August 14, 2014 and retired on
February 15, 2015. It will be the Ministry’s evidence that his
position of Maintenance Mechanic 3 (Position #00174866) at the
Central North Correctional Centre was filled and continues to be
required. The Union does not have evidence to the contrary.
i. James Mullen applied for TEI on May 8, 2013 and retired on
November 1, 2013. It will be the Ministry’s evidence that he
returned to his position of Maintenance Carpenter (Position
#00170509) at the Ontario Correctional Institute on a fixed-term
basis on February 3, 2014. The position was filled and continued to
be filled until September 28, 2018. The Union does not have
evidence to the contrary.
j. Robert Murphy applied for TEI on March 8, 2013 and retired on July
1, 2014. It will be the Ministry’s evidence that his position of
Mechanic 3 (Position #00136499) at the Quinte Detention Centre
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was filled on August 18, 2014 and continues to be required. The
Union does not have evidence to the contrary.
8. It will be the Ministry’s evidence that the positions occupied by the
grievors at the time of their TEI applications remained active, and each
position continued to be required after their respective retirements.
The Union does not have evidence to the contrary.
[6] The following ASF was submitted with respect to the Probation and Parole
Officers:
1. A number of employees in various positions employed by the Ministry of
the Solicitor General (the “Ministry”) working at various Probation and
Parole Offices applied for TEI between January 2013 to December 2018
(the “TEI Applications”).
2. There were seven (7) individual applicants: Susan Corcoran, Penny Arp,
Mike Reynolds, Denis Stortini, Dennis Ginter, Daniel Dawson, Patricia
Wilkin. All of the individual applicants were working in Probation and
Parole Offices and were classified at the Probation and Parole Officer 2
level (PPO2).
3. The Ministry did not approve any of the TEI Applications filed by the above
noted employees.
4. The Union filed grievances between January 2013 and December 2018 on
behalf of the above-noted employees whose TEI applications were not
granted (the “TEI Grievances”).
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5. For the purposes of these grievances, the Employer does not dispute that
the requirements of paragraph 2(i) of Appendix 46 were met. This is
without prejudice to other matters.
6. It would be the Ministry’s evidence that it did not grant the above-noted
TEI Applications for the following reasons. At the time of the TEI
Applications and the TEI Grievances, the Ministry had no intention of
reducing the number of positions in the impacted Probation and Parole
offices and in its opinion the exit of the above noted applicants would not
support the transformation of the Ontario Public Service. The Union does
not have evidence to the contrary.
7. Each of the grievors retired after their TEI application was filed and
remained pending.
a. Sue Corcoran applied for TEI on October 15, 2013 and retired on
December 31, 2014. She was rehired into a variety of FXT
contracts including her former position between April 7, 2015 and
August 30, 2017. Her position has continued to be filled. It will be
the Ministry’s evidence that her position of Probation and Parole
Officer (Position# 00024380) at the Kingston Probation and Parole
Office continues to be required. The union does not have evidence
to the contrary.
b. Penny Arp applied for TEI on March 7, 2013 and retired on January
29, 2014. She was rehired on an FXT contract in the Kingston
Probation and Parole office on June 6, 2016 until July 9, 2016. Her
position has been filled on an ongoing basis since her retirement. It
will be the Ministry’s evidence that her position of Probation and
Parole Officer (Position # 00016148) at the Kingston Probation and
Parole Office continues to be required. The union does not have
evidence to the contrary.
c. Dennis Ginter applied for TEI on January 10, 2014 and retired on
July 1, 2014. It will be the Ministry’s evidence that his position of
Probation and Parole Officer (Position # 00026791) at the Sault Ste
Marie Probation and Parole Office was filled on July 1, 2014 and
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continues to be required. The union does not have evidence to the
contrary.
d. Dennis Stortini applied for TEI on December 1, 2014 and retired on
August 1, 2018. He was rehired on an FXT contract into a Court
Services Officer position with the Ministry of the Attorney General.
From 1980 until 1990, Mr. Stortini was employed and assigned as a
Probation and Parole Officer in the Sault Ste. Marie Probation and
Parole Office. From 1990 until 2018, Dennis Stortini held the
assignment of Institutional Liaison Officer at the Northern
Treatment Centre, which is an assignment classified as a Probation
and Parole Officer 2, which he obtained by competition in 1990.
Prior to that time, the ILO assignment had been rotated amongst
probation and parole officers, generally on a 2-year rotation. From
1990 until approximately 2003 his assignment was exclusively that
of Institutional Liaison Officer at the Northern Treatment Centre
(which became the Algoma Treatment and Remand Centre). From
2003 until his retirement, Mr. Stortini held an assignment as a
Probation and Parole officer at the Sault Ste. Marie Probation and
Parole Office as well as the ILO assignment, with a reduced
Probation and Parole caseload in order to facilitate the ILO
assignment at the Algoma Treatment and Remand Centre. Since
his retirement in 2018, the work of the ILO assignment has been
redistributed to other probation officers, and the work is now
assigned to Probation Officers on a rotational basis. It will be the
Ministry’s evidence that his position of Probation and Parole Officer
(Position # 00027133) at the Sault Ste Marie Probation and Parole
Office continues to be required, that there was no reduction in the
number of PPO2s, and that Stortini’s PPO2 position was filled on
September 17, 2018 and continues to be required. The union does
not have evidence to the contrary.
e. Mike Reynolds applied for TEI on April 22, 2013 and retired on
January 1, 2014. He was rehired on a FXT contract on March 3,
2014 to Usher/Messenger with Ministry of the Attorney General. It
will be the Ministry’s evidence that his position of Probation and
Parole Officer (Position # 00024380) at the Brampton Probation
and Parole Office was filled January 7, 2014 and continues to be
required. The union does not have evidence to the contrary.
f. Daniel Dawson applied for TEI on April 8, 2014 and retired on
January 31, 2015. It will be the Ministry’s evidence that his position
of Probation and Parole Officer (Position # 00026675) at the
Sudbury Probation and Parole Office was filled March 2, 2015 and
continues to be required. The union does not have evidence to the
contrary.
g. Patricia Wilkin applied for TEI on April 4, 2014 and retired on
December 1, 2015. It will be the Ministry’s evidence that her
position of Probation and Parole Officer (Position # 00026672) at
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the Sudbury Probation and Parole Office was filled December 7,
2015 and continues to be required. The union does not have
evidence to the contrary.
8. It will be the Ministry’s evidence that the positions occupied by the grievors
at the time of their TEI applications remained active, and each position
continued to be required after their respective retirements. The Union
does not have evidence to the contrary.
Appendix 46
[7] The relevant provisions of Appendix 46 are as follows:
1. All regular, regular part-time and flexible part-time employees will be
eligible to apply to a Transition Exit Initiative (TEI).
2. An employee may request in writing voluntary exit from employment with
the OPS under the TEI, which request may be approved by the Employer
in its sole discretion. The Employee’s request will be submitted to the
Corporate Employer. The Employer’s approval shall be based on the
following considerations:
i. At the time that an employee TEI request is being considered, the
Employer has plans to reduce positions in the OPSEU bargaining
unit; and
ii. The Employer has determined in its discretion that the employee’s
exit from employment supports the transformation of the Ontario
Public Service.
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iii. The Employer will consider whether employees are on the TEI list
when making surplus decisions.
Analysis
[8] I have now issued a number of decisions on the scope of the Employer’s
discretion to allow or deny a request for TEI: Koeslag, issued January 12,
2016, Vadera, June 28, 2018, Kimmel, November 29, 2018, Anich, August 9,
2019 and Klonowski et al, issued on November 6, 2019.
[9] All of the current Grievors applied for TEI, retired without their request having
been granted and occupied positions that were filled upon their retirement.
One grievor’s circumstance was slightly different and I will address his
grievance separately: Mr. Stortini was replaced by another officer but his actual
assignment as an Institutional Liaison Officer was rotated among several
employees after he retired.
[10] The Union maintains that the Grievors’ requests were not fairly processed or
administered because the Employer only considered the narrow issue of
whether the position was still required or if they could reduce complement by
eliminating the exiting employee’s position. The Union acknowledged that this
is precisely the same issue that I considered in Klonowski et al, the most recent
decision in the series of decisions under Appendix 46.
[11] W hile counsel for the Union recognised that the facts in this case were very
similar, if not identical, to those considered in the previous decision, the Union
maintained its position that management should have considered a broader
range of factors in determining whether the Grievors’ exit would assist in the
transformation of the OPS.
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[12] While I continue to be sympathetic to the Union’s efforts on behalf of the
Grievors, I can find no basis to distinguish these grievances from those that I
have already dismissed. As set out in Klonowski et al, I have already found
that:
… Appendix 46 confers a broad discretion on the Employer to determine
whether granting a request for TEI would support its vision of
transformation of the OPS: Koeslag, supra. While recognising that there
may have been a number of different approaches that the Employer could
have adopted with respect to transformation of the public service, it
remains in the Employer’s sole discretion to decide whether an
‘employee’s exit from employment supports transformation’ and, in so
doing, to determine which factors are relevant to the exercise of that
discretion: Vadera, supra.
The Employer has consistently taken the position that its vision of
‘transformation’ focussed squarely on downsizing their workforce. They
have offered the TEI as a targeted inducement to encourage employees to
voluntarily retire or resign, allowing the Employer to eliminate a position
without the need to surplus other employees who wish to remain. In
earlier cases, I have determined that the Employer is entitled to that
stance: Kimmel, supra and Anich, supra.
[13] W ith respect to Mr. Stortini, who held a half time assignment as an Institutional
Liason Officer (“ILO”), the Union argued that the rotation of the ILO assignment
among different Probation and Parole Officers after Mr. Stortini’s retirement
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was transformational. It argued that Mr. Stortini’s exit from the OPS permitted
the Employer to “eliminate” the designated ILO position and transform the
manner in which it assigned this work. Therefore, in its view, Mr. Stortini’s exit
clearly supported transformation of the OPS and his request for TEI should
have been granted.
[14] The Union maintained that Mr. Stortini’s departure was entirely foreseeable
once he requested TEI and that the Employer was simply waiting for him to
retire so that it could change the manner in which his work was assigned.
I note that Mr. Stortini initially filed his request for TEI in 2014 and did not retire
until 2018. The timing of his request and the delay before his ultimate
departure does not support the conclusion that the Employer was simply lying
in wait for him to leave. In any event, the parties agree that Mr. Stortini was
replaced and that his work continued to be performed, albeit on a rotational
basis by different officers.
[15] Ultimately, I do not find that the decision to assign the ILO duties on a
rotational basis after Mr. Stortini departed is a material difference that would
lead me to alter the conclusion reached in Klonowski et al. The position was
maintained, the work was still being done and the Employer therefore
determined that its vision of transformation was not advanced by Mr. Stortini’s
exit from the OPS.
[16] Absent evidence of bad faith or discrimination, I am not prepared to say that
the Employer fettered its discretion when it failed to approve a request for TEI
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merely because it subsequently changed the manner in which it assigned work
to the remaining employees after someone retired.
[17] Having considered the evidence and the submissions before me, I have
concluded that the Employer properly exercised its discretion. All of the
grievances currently before me are therefore dismissed.
Dated at Toronto, Ontario this 12th day of February, 2020.
“Reva Devins”
Reva Devins, Arbitrator