HomeMy WebLinkAbout2019-0409.Morgan.20-10-05 DecisionCrown Employees
Grievance Settlement
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Toronto, Ontario M5G 1Z8
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Commission de
règlement des griefs
des employés de la
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Toronto (Ontario) M5G 1Z8
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GSB# 2019-0409
UNION# 2019-0719-0005
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Morgan) 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 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] Stewart Morgan is a Correctional Officer (“CO”) at the Kenora Jail. He filed a grievance
on April 4, 2019 claiming that his Continuous Service Date (“CSD”) has been incorrectly
calculated. In particular, the Grievor claims that while his CSD is currently listed as
March 15, 2004, it should be 6.62 years earlier. Mr. Morgan claims that the Employer
has not counted the 13 seasons that he worked at the Ministry of Natural Resources and
Forestry (“MNRF”) as a Forest Fire Fighter. By way of remedy, the Grievor seeks to
have all hours that he worked while at the MNRF as a seasonal worker added to his
service in his current position as a CO, and for his CSD to be changed accordingly.
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[8] The Grievor states that he was told that his time at the MNRF did not count because he
had a break in service of greater than 13 weeks. Mr. Morgan disputes that assertion.
He maintains that he was never separated from the MNRF, and he moved directly from
his seasonal position to his position as a CO in 2003. For 13 seasons he had been
recalled to the seasonal Forest Fire Fighter position, and had returned each year, until
the Spring of 2004, when he declined recall.
[9] In late July 2003 the Grievor had asked for and was granted a leave of absence from his
MNRF position. On August 5, 2003 he began training to become a CO, and started
working as a Fixed Term CO at the Kenora Jail on September 22, 2003. In April 2004
Mr. Morgan declined recall to the Forest Fire Fighter position as he was already working
at the Ministry of the Solicitor General.
[10] The Grievor states that there is another CO at the Kenora Jail who was a seasonal Parks
employee in the OPS, on a contract somewhat similar to his own. The park in question
closed every winter, but the individual returned to work every Spring when recalled.
According to Mr. Morgan, that individual has had his time working as a seasonal Parks
worker recognized for the purpose of his CSD. While the Grievor has provided this
anecdotal information, it is of no assistance to me as my jurisdiction arises solely out of
the collective agreement, and I must apply the terms of the collective agreement in my
consideration of the facts before me.
[11] Based on the established jurisprudence and the collective agreement, FXT seniority is
calculated back to the beginning of an employee’s continuous service, or back to the first
break in employment which is greater than 13 weeks, or back to a resignation. Article
18 addresses “Seniority (Length of Continuous Service) for FXT and Regular Part Time
employees”. Under the collective agreement applicable when this grievance was filed,
the calculation was based on the actual number of full-time weeks worked by a full-time
FXT employee during his full-time employment back to the first break in employment
which was greater than 13 weeks (See Art. 18.1.1 (b)).
[12} Since the Grievor worked for the MNRF as a seasonal worker in 2003, and until July
2003; was at that time granted a leave of absence from his seasonal worker position;
began his CO training shortly after on August 5, 2003; and started as a FXT CO on
September 22, 2003, there was no break in his service of more than 13 weeks in that
year. As such, and having reviewed the records, Mr. Morgan’s hours for the 2003 year,
while he was a seasonal worker at the MNRF in that year, should be counted towards
his CSD. For all previous years that he worked as a seasonal worker for the MNRF, he
had breaks in service of greater than 13 weeks, so there is no basis in the collective
agreement to count those seasons.
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[13] Having considered the facts and the submissions of the parties, and for the reasons
outlined above, this grievance is upheld, and the matter is remitted back to the parties to
determine what the Grievor’s CSD should be. I will remain seized in the event that there
are any disputes that arise out of this decision.
Dated at Toronto, Ontario this 5th day of October, 2020.
“Gail Misra”
_____________________
Gail Misra, Arbitrator