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Home My WebLink About2020-1633.Vasileski.21-03-26 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# 2020-1633 UNION# 2020-0411-0004 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Vasileski) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Gail Misra Arbitrator FOR THE UNION Gregg Gray Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Justin O’Gorman Treasury Board Secretariat Employee Relations Advisor HEARING March 24, 2021 -2- DECISION [1] The Employer and the Union at the Ottawa Carleton Detention Centre (“OCDC”) agreed to participate in mediation-arbitration in accordance with the Local Mediation- Arbitration Protocol that has been negotiated by the parties. Should mediation not result in resolution of a grievance, pursuant to the Protocol, they have agreed to a mediation-arbitration process by which each party provides the Arbitrator with their submissions setting out their respective facts and the authorities they may be relying upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, so that it is without precedent or prejudice to any other matters between the parties, and is issued without detailed written reasons. [2] Goce Vasileski is a Correctional Officer at the OCDC. He filed a grievance dated February 21, 2020 claiming essentially that the Employer has failed to pay him at the appropriate rate of pay since he returned from a temporary assignment in April 2019. By way of remedy, among other things, the grievor seeks to have the requisite wage rate adjustments made, and to be compensated for all lost entitlements that flow from the wage rate adjustment. [3] The grievor was hired as a Fixed Term (FXT) Correctional Officer (CO)1 at the OCDC on July 25, 2016, and was paid at the rate of $24.02 per hour. In July 2017, based on his experience and hours worked, Mr. Vasileski progressed to the FXT CO2 rank and received the requisite wage increase to $26.96 per hour. On January 1, 2018, the grievor received an “across the board” wage increase to $27.84 per hour pursuant to the collective agreement. [4] On March 19, 2018 the Employer and the grievor entered into a Temporary Assignment Agreement (TAA) pursuant to which Mr. Vasileski was to take a temporary assignment as a Probation Officer 2 (PO2) in the Youth Justice Services of the Ministry of Children, Community and Social Services (as it is now known) The agreement was signed by Mike Wood, the Superintendent of the OCDC, on behalf of the Ministry of the Solicitor General (as it is now known) and by Joanne Patey, Probation Manager, on behalf of the Ministry of Children, Community and Social Services. The Union was not involved in this transaction, although it has not objected to it. [5] At that time the grievor was still a FXT CO2. However, for the purposes of the TAA, the parties recognized his position at the OCDC as his “permanent position” and his “home position”. The TAA had a term of one year from April 2, 2018 to April 7, 2019, and the grievor was to be paid as a PO2. The parties agreed that on expiry of the TAA the following would occur: ON EXPIRY At the conclusion of the temporary assignment, the Employee will return to the Home position at the Home position’s current classification level, and at the salary the Employee would have attained had the assignment not occurred. -3- Where applicable, entitlement to Pay for Performance will be governed by the pay operating procedures for both the Home position and temporary assignment Position. [6] Once the grievor moved to the FXT PO2 position on April 3, 2018, he began to be paid at the rate of $28.54 per hour. As there is a six month rate increase in that position, as of October 1, 2018 he received a merit increase to $29.43 per hour, and as of January 1, 2019, he received an “across the board” increase pursuant to the collective agreement to $30.02 per hour. [7] However, when the grievor returned to his CO2 position at the OCDC on April 1, 2019, his wage rate reverted to the minimum level for that position, $28.61 per hour. This is where the issue arises for the grievor and the Union. They maintain that pursuant to the TAA, and in particular the “On Expiry” provision of that agreement, the grievor should have been paid at the rate for the CO2 position as if the grievor had continued in that job for the one year duration he had been on the temporary assignment. During that year, according to the grievor, he had worked a total of 1,805.25 hours in the PO2 position. The CO2 position contemplates a maximum of 40 hours per week, for a total of 1904 hours per year (when statutory holidays etc. are subtracted). [8] According to the pay records, on June 1, 2019 the grievor’s CO2 rate of pay went up to $29.49. The Employer explains that this was based on the fact that prior to leaving for the temporary assignment, the grievor had been in the CO2 position from July 6, 2017 to April 2, 2018, a period of approximately 9 months. Following his return to the CO2 position on April 1, 2019, since he had not completed 1904 hours, in that position and did not do so till the end of May 2019, the Employer maintains he was not eligible for the next step merit increase for the CO2 position. [9] The Union argues that the 1,805.25 hours that the grievor worked as a PO2 should have been counted towards his CO2 wage progression as that was what had been agreed upon in the TAA. As such, as of April 1, 2019, the grievor should have been entitled to the wage rate for a CO2, including the merit increase, as if he had never left that position in April 2018; including his hours as a PO2; and with any “across the board” increase that would have been applicable as of January 1, 2019. [10] The Employer argues that as a FXT employee, the grievor was not allowed to have a temporary assignment. It asserts that an FXT employee who takes an assignment outside their original FXT position must sign a new FXT contract that relates to the new assignment. [11] According to the Employer, its “Employment Policy”, which contains Public Service Commission Directives, states that temporary assignments of a fixed duration are only available to regular employees (at p. 19). As well, at para. 9.18 the policy directive states that “a fixed-term employee who is assigned to a new position must be provided with a new fixed-term contract”. Therefore, since the grievor was a FXT employee and not a regular employee, he should not have been given a TAA. -4- [12] The Employment Policy states at page 1, para. 4, that its purpose is to establish “a set of principles and requirements for managing public service employment and [enable] timely, flexible and accountable employment practices”. It clearly applies to management of the public service. As already noted, it was managers who prepared and executed the TAA, and the grievor was a signatory to the document prepared by the Employer’s representatives. As such, the TAA is binding on the Employer, whether the Employer’s representatives should have entered into it or not. [13] Once the grievor returned from the one year temporary assignment, he should have had the benefit of the bargain struck, which included the specific provision for what would occur upon expiry of the TAA. [14] Having considered the documents and submissions of the parties, I find that upon Mr. Vasileski’s return to his CO2 position at the OCDC in April 2019, the Employer should have put him back at the CO2 wage rate that he would have attained had the temporary assignment not occurred. [15] For the reasons outlined above, the grievance is upheld. The Employer is directed to compensate the grievor for all lost wages and benefits that would have flowed had it complied with the TAA in April 2019. The matter is remitted back to the parties to resolve the compensation issues. I will remain seized to address any issues that may arise out of the implementation of this decision. Dated at Toronto, Ontario this 26th day of March, 2021. “Gail Misra” _____________________ Gail Misra, Arbitrator