HomeMy WebLinkAbout2020-0566.O'Brien.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# 2020-0566
UNION# 2020-0368-0085
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(O’Brien) Union
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE
Gail Misra
Arbitrator
FOR THE UNION
Dan Sidsworth
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Michelle LaButte
Treasury Board Secretariat
Employee Relations Advisor
HEARING July 10 and September 28, 2020 (by
videoconference)
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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] Michael O’Brien is a Correctional Officer at the Central East Correctional Centre who
filed a grievance on March 17, 2020 claiming that the Employer has violated Articles 2,
18, Appendix 24 and Appendix COR19 by incorrectly calculating his Continuous Service
Date (“CSD”).
[8] In particular, Mr. O’Brien claims that seniority calculation under the old system, that is to
say previous collective agreements, meant that when his CSD was calculated in August
-3-
2003, his 8 years and 5 months as an unclassified CO between March 6, 1995 and
August 10, 2003 was calculated using only 40 hour work weeks. In the latest collective
agreement between the parties, they have agreed that all straight time hours worked by
fixed term COs will be totalled, and then divided by 40 to determine the number of weeks
of work that will be used to determine a CSD.
[9] Mr. O’Brien also claims that he has suffered age discrimination because he is not getting
the benefit of the new calculation method, so that his time worked at Millbrook
Correctional Centre and the Central East Correctional Centre are not being re-
calculated. By way of remedy, the Grievor seeks to have his CSD changed based on
the current collective agreement method of calculation, and that he be reimbursed for all
lost monies, benefits, vacation and lieu days.
[10] After considering the facts and submissions made by the parties I am of the view that
this grievance must fail. There is nothing in the current collective agreement to suggest
that the parties negotiated the change in the method of calculation of a CSD would be
retroactive at all, let alone to 1995 or even 2003. At the time that the Grievor’s CSD was
calculated, it was done in accordance with the terms of the collective agreement in place
at the time. Unless parties specifically agree otherwise when negotiating a new collective
agreement, the new terms agreed upon have no retroactive effect. With respect to the
calculation of a CSD, there was no provision for retroactivity. As such, there is no basis
for Mr. O’Brien’s claim.
[11] I also note that while the Grievor has claimed a breach of Appendix 24, that particular
appendix was deleted on April 1, 2019, and there is no such appendix in the current
collective agreement.
[12] There is also no basis at all for the Grievor’s claim of age discrimination. There is no
evidence before me about Mr. O’Brien’s age, but in any event, the parties did not
negotiate a provision in order to discriminate on the basis of age: they simply agreed on
a method of calculating seniority that is more advantageous than the method that was in
place when the Grievor’s hours were calculated to reflect his CSD.
[10] For the reasons outlined above, this grievance is dismissed.
Dated at Toronto, Ontario this 30th day of September, 2020.
“Gail Misra”
_____________________
Gail Misra, Arbitrator