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Home My WebLink About2019-0907.Francescutti.20-09-30 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# 2019-0907 UNION# 2019-0601-0008 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Francescutti) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Gail Misra Arbitrator FOR THE UNION Matthew Hrycyna Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Karen Martin Treasury Board Secretariat Employee Relations Advisor HEARING July 10 and September 28, 2020 (by videoconference) -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 (now, the Ministry of the Solicitor General) as well as the Ministry of Children and Youth Services (now, the Ministry of Children, Community and Social 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] Noreen Francescutti is a Probation and Parole Officer (PO) in the Ministry of the Solicitor General working out of the Sault Ste. Marie Probation and Parole Office. On May 28, 2019 Ms. Francescutti filed a grievance claiming that the Employer had breached various provisions of the collective agreement when it did not properly consider her request for the Transition Exit Initiative (TEI). By way of remedy, the Grievor seeks to be granted the TEI. -3- [8] The Grievor applied for TEI in March 2019, and it was not granted. Ms. Francescutti subsequently retired in June 2019. She alleges that the Employer did not fill her position immediately because it knew it would be utilizing the vacancy for a lateral transfer. [9] The Employer submits that it does not have to fill a vacancy right away, and it was acting within its management rights to hold the vacancy created by Ms. Francescutti’s retirement until it was ready to fill it. At the time, there was consideration within the Ministry of Children, Community and Social Services (MCCSS) of how it would address the consistent reduction in the number of youth being sentenced in Ontario. That had led to lower caseloads for MCCSS Probation Officers, and that Ministry was considering what it needed to do to maximize service delivery and provide efficient services to youth and their families. As such, while these issues were under consideration, MCCSS, along with the Ministry of the Solicitor General on the adult side, was holding some vacancies so that should there need to be redeployment of personnel, there would be positions open for the affected employees. It was an attempt to create options for POs who may be displaced from their home positions. Ultimately, the vacant position resulting from Ms. Francescutti’s retirement was filled. Thus, there was no reduction in the number of positions in the Sault Ste. Marie office, such that the Grievor should have been granted TEI when she requested it. [10] The GSB has now issued a number of decisions in respect of the TEI and the scope of the Employer’s discretion to allow or deny a request for TEI. In Ontario Public Service Employees Union (Klonowski et al) v Ontario (Treasury Board Secretariat), 2019 CanLII 118489 (ON GSB), Arbitrator Reva Devins wrote as follows: [14]…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. [15] 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. [11] Having considered the facts and submissions of the parties, and the jurisprudence, I agree with the Employer that it has no collective agreement obligation to fill a vacancy as soon as it occurs. Furthermore, since ultimately the Grievor’s position was filled, it is clear that the Employer was not at that time seeking to reduce the staffing in the Sault Ste. Marie office, so it did not act in bad faith when it did not grant Ms. Francescutti’s -4- request for a TEI. As such, and for these reasons, I find no breach of the collective agreement in this instance, and the grievance is therefore dismissed. Dated at Toronto, Ontario this 30th day of September, 2020. “Gail Misra” _____________________ Gail Misra, Arbitrator