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Home My WebLink About2020-1747.Casale.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# 2020-1747 UNION# 2020-0219-0003 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Casale) Union - and - The Crown in Right of Ontario (Ministry of Children, Community and Social Services) 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] Frank Casale is a Probation Officer (PO) at Youth Justice Services in the Ministry of Children, Community and Social Services (MCCSS), working out of the Brantford Probation Office. On January 13, 2020 Mr. Casale filed a grievance claiming that the Employer had breached various provisions of the collective agreement when it did not approve his request for the Transition Exit Initiative (TEI), at least in part due to his eligibility to retire. He further claims that the TEI process was not conducted in good faith. By way of remedy, the Grievor seeks to be granted the TEI. -3- [8] The grievance issue arose in November 2019, when Mr. Casale applied for the Youth Justice Modernization TEI, and was not approved. The Grievor has a seniority date of February 1987. At the time of his application for the TEI, there were five POs working at the Brantford Probation Office. According to the Grievor and Union, around that same time two POs from the Hamilton Probation Office, with less seniority than Mr. Casale, were granted their respective TEIs. Subsequently, two POs from the Brantford Probation Office, who were junior to the Grievor, were transferred to Hamilton to fill the two vacancies, but the Grievor was not offered a TEI. The Grievor believes that in these actions the Employer showed it was acting in bad faith in respect of his request for the TEI because it knew that it needed to reduce the number of POs in Brantford, but rather than grant him his TEI, they moved the two junior POs to Hamilton, thereby reducing the number of positions in Brantford. [9] The Grievor also claims that the Employer acted contrary to the Human Rights Code as it discriminated against him on the basis of his age. He maintains that the Ministry believed that he would retire shortly, and that they would therefore save the money that it would have cost to give him the TEI. [10] The Employer provided documentation proving that the two Hamilton POs who had been granted TEIs had both submitted their respective applications, and had been approved for the TEIs, before the Grievor made his application for TEI. The Grievor applied for TEI on November 20, 2019, but the two Hamilton POs had their TEI applications approved on November 7, 2019. As such, there was simply no overlap in the consideration of these applications. [11] Furthermore, the Memorandum regarding the “Modernization of Youth Probation Services” did not issue until November 18, 2019. In that Memorandum the Ministry announced that it would be reducing the number of MCCSS PO positions in Ontario, and that it would be working with the Ministry of the Solicitor General and OPSEU to minimize involuntary job loss in MCCSS through an employee transition agreement. [12] It appears that the Grievor filed his TEI request in response to the issuance of the Memorandum. However, the two Hamilton POs had simply applied of their own volition in advance of the Memorandum, and had already been approved. Their applications had nothing to do with the Memorandum. The Employer needed to reduce its PO positions in the Brantford Probation Office by two. There were two vacancies in the Hamilton Probation Office, which was within the 40 km. range of the Brantford Probation Office, so the Employer transferred the two junior POs from Brantford to Hamilton to fill the two vacancies. [13] Having reviewed the submissions of the parties and the documents presented, I am satisfied that the Employer did not act in bad faith when it did not grant the Grievor’s TEI request. The two Hamilton PO vacancies had in fact occurred before the November 18, 2019 issuance of the “Modernization” Memorandum, and well before the Grievor indicated he wanted a TEI. The Employer was acting within its management rights when it determined that it needed to reduce the compliment of POs in Brantford by two, and -4- since it had two vacancies in Hamilton, which was within 40 km. of the Brantford Probation Office, it was well within its rights to fill those vacancies with the two junior POs from the Brantford office. By doing so, it achieved its goal of the reduction of PO positions, and of placement of affected employees within the geographic area. [14] Based on the facts before me, it is clear that the Grievor’s TEI request was not supported at the time he made it. It was simply a question of timing, and the two Hamilton POs had made their requests before the Grievor, and theirs had already been granted, creating the vacancies in Hamilton. As such, I can find no breach of the collective agreement or the Human Rights Code, and the grievance is hereby dismissed. Dated at Toronto, Ontario this 30th day of September, 2020. “Gail Misra” _____________________ Gail Misra, Arbitrator