HomeMy WebLinkAbout2019-1929.Faccin.20-12-14 Decision
Crown Employees Grievance Settlement
Board
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Toronto, Ontario M5G 1Z8
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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# 2019-1929
UNION# 2019-0234-0244
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Faccin) 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, 2020 and December 11, 2020
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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] David Faccin is a Fixed Term (“FXT”) Correctional Officer (“CO”) at the Vanier
Centre for Women (“Vanier”). He filed a grievance on August 30, 2019 claiming that
the Employer had violated Appendix COR19 and Article 31A of the collective
agreement. By way of remedy, among other things, the Grievor seeks to have his
seniority readjusted to show no break in service and to be awarded a full time
Industrial Officer 2 position.
[8] The Grievor had taken a temporary assignment as an Industrial Officer at the
Maplehurst Correctional Complex in January 2018. He returned to his FXT CO
position on April 28, 2019. However, between May 6 and July 7, 2019, the Grievor
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was on a leave of absence, and for two weeks thereafter, until July 22, 2019, he did
not work. It is unclear what may have been the reasons for these absences.
[9] It would appear that the Grievor believes that he had been in the Industrial Officer
position for 18 months, and as such, should have been converted to regular status
at the end of the 18 month period. However, it is apparent that Mr. Faccin had not
been in the Industrial Officer position for 18 months as by April 28, 2019 he had
returned to his CO position at Vanier. Between January 2018 and the end of April
2019, he had worked 16 months in the Industrial Officer position.
[10] Furthermore, the grievance was not filed until August 30, 2019, at which point, even
on the face of Mr. Faccin’s grievance, he identified himself as being back at Vanier,
and in the position of a Correctional Officer.
[11] Article 31A.15 addresses “Conversion of Fixed Term Positions to Positions in the
Regular Service”. Pursuant to this provision, an employee must have performed the
same work in an FXT capacity for “at least eighteen (18) months” (with some
exceptions which are not applicable here), and the ministry must have determined
that it continues to have a need for that position on a full-time basis (Art. 31A15.1.1)
before conversion may occur. As such, Mr. Faccin would have had to have been in
the Industrial Officer position for 18 months or more, and while he was in that
position, would have had to grieve that he was not being converted to full time status.
He did neither of these two things, and therefore this grievance must fail.
[12] Having considered the facts, and the submissions of the parties, and for the reasons
outlined above, this grievance is dismissed.
Dated at Toronto, Ontario this 14th day of December, 2020.
“Gail Misra”
________________________
Gail Misra, Arbitrator