HomeMy WebLinkAbout2013-1446.Union-Foster et al.22-03-08 Decision
GSB#2013-1446, 2013-1574, 2013-1696
UNION#2013-0999-0049, 2013-0999-0063, 2013-0999-0069
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Union – Foster et al) Union
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The Crown in Right of Ontario
(Treasury Board Secretariat) Employer
BEFORE Reva Devins Arbitrator
FOR THE UNION Ed Holmes
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER George Parris
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING February 24 and March 8, 2022
Crown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
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Decision
[1] These grievances are part of a series regarding the operation of the Transition Exit
Initiative, (“TEI”), under Appendix 46 of the Collective Agreement. The parties agreed
that the current matters should be determined in accordance with Article 22.16 of the
Collective Agreement with brief reasons for decision.
[2] The parties provided an Agreed Statement of Fact (“ASF”) that set out the
circumstances that relate to each individual grievor and the Ministry’s response.
Generally, these grievances were filed by 1 thirteen grievors in the Ministry of Children,
Community and Social Services. Each grievor applied for TEI before they retired from
the Ontario Public Service (“OPS”), however, their request was not approved by the
Employer.
Appendix 46
[3] The relevant provisions of Appendix 46 are set out below. I have included the
initial provision and noted where it was subsequently amended:
1. All regular, regular part-time and flexible part-time employees will be eligible to
apply to a Transition Exit Initiative (TEI).
2. An employee may request in writing voluntary exit from employment with the
OPS under the TEI, which request may be approved by the Employer in its
discretion [amended to in its “sole” discretion, October 30, 2015]. The Employee’s
request will be submitted to the Corporate Employer. The Employer’s approval
shall be based on the following considerations:
1 The names of the grievors are listed in Appendix A of this decision.
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i. At the time that an employee TEI request is being considered, the
Employer has plans to reduce positions in the OPSEU bargaining unit;
and
ii. The Employer has determined in its discretion that the employee’s exit
from employment supports the transformation of the Ontario Public
Service.
iii. The Employer will consider whether employees are on the TEI lists
when making surplus decisions [added to revised Memorandum of
Agreement, October 30, 2015].
If there is more than one employee eligible to exit under the TEI, the determination
of who will exit under the TEI shall be based on seniority. [or] If there is more than
one employee eligible to exit under the TEI within the same workplace, the
determination of who will exit under the TEI shall be based on seniority [amended,
October 30, 2015].
Analysis
[4] I have now issued a series of decisions on the scope of the Employer’s discretion
to allow or deny a request and concluded that:
i. Appendix 46 confers a broad discretion on the Employer to determine
whether granting a request for TEI would support its vision of
transformation of the OPS: Koeslag et al., issued January 12, 2016;
ii. Despite this broad discretion, the ordinary principles for the proper
exercise of discretion apply. Consequently, when the Employer
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considers requests for TEI, the decision cannot be based on irrelevant
considerations or otherwise violate the principles set out in Re Kuyntjes,
GSB #513/84 (Verity); Koeslag, supra.
iii. While recognising that there may be a number of approaches that the
Employer could adopt with respect to transformation of the public
service, it remains in the Employer’s sole discretion to decide whether
an ‘employee’s exit from employment supports transformation’ and, in
so doing, to determine which factors are relevant to exercising their
discretion: Vadera, issued June 28, 2018.
iv. The Employer can offer the TEI as a targeted inducement to encourage
employees to voluntarily retire or resign, allowing them to eliminate a
position without the need to surplus other employees who wish to
remain. However, the Employer is not required to approve all requests
for TEI, even where there is evidence of change or transition. The
Employer retains the discretion to determine when and how the TEI will
be offered: Kimmel, issued November 29, 2018 and Anich, August 9,
2019.
v. An identical outcome for many grievors does not automatically mean
that the Employer improperly exercised their discretion by applying a
blanket rule. Where the common denominator among grievors was a
rational consideration that was reasonably related to achieving
transformation, the discretion was properly exercised: Klonowski, issued
November 7, 2019.
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vi. Absent evidence of bad faith or discrimination, the approval of an earlier
request for TEI, on its own, is not sufficient to establish an improper
exercise of discretion: Koroscil, June 18, 2020. Similarly, the approval of
subsequent requests does not warrant an automatic conclusion that the
decision to deny an earlier request was arbitrary or unreasonable.
Inevitably, timing matters. A different outcome may result from the
timing of an employee’s request for TEI: Heath, March 3, 2021.
vii. A TEI application does not survive the departure of an employee from
the OPS. Appendix 46 is not available to employees after they retire, or
their employment relationship is severed. TEI provides enhanced
benefits to an employee when the Employer determines that their “exit
from employment supports the transformation of the OPS”. When an
employee is no longer an active employee, by definition, they cannot
exit again and Appendix 46 has no application: Thompson, issued May
28, 2021.
[5] I appreciate the continued disappointment and frustration of long service
employees who believe their applications could and should have been approved. TEI is
clearly a significant benefit for retiring employees. Regrettably, as I have already
determined, TEI is not a general retirement allowance provided to everyone who
requests it.
[6] After careful consideration of the submissions made by the parties, I have applied
the principles established in earlier cases to the facts that pertain to these grievors and
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determined that the Employer properly exercised its discretion when it considered the
grievors’ requests to exit under the TEI.
[7] The grievances are therefore dismissed.
Dated at Toronto, Ontario this 8th day of March 2022.
“Reva Devins”
Reva Devins, Arbitrator
Appendix ‘A’
1. Foster, Mary, 08OAD Office Administration 08, Union File 2013-0154-0026,
GSB File 2013-2413
2. Walsh, Rosemary, Community Development Officer 2, Union File 2016-0310-0010,
GSB File 2016-1065
3. Gallagher, Cynthia, 06OAD Office Administration 06, Union File 2014-0310-0075
and 2015-0310-0005, GSB File 2015-1220 and 2015-1222
4. Collins, Linda, 06OAD Office Administration 06, Union File 2015-0123-0003,
GSB File 2015-1802
5. Souliere, Sharon, 08OAD Office Administration 08, Union File 2014-0601-0021 and
GSB File 2014-2773
6. Fletcher, Darlene, 08OAD Office Administration 08, Union File 2016-0714-0001,
GSB File 2015-3123
7. Waterman, Linda, Executive Officer 1 (BU), Union File 2016-0534-0009,
GSB File 2016-1507
8. Radley, Hannah, 08OAD Office Administration 08, Union File 2016-0534-0007,
GSB File 2016-1206
9. Cuda, Josie, Executive Officer 1 (BU), Union File 2016-0534-0008, GSB 2016-1328
10. Burke-Morgan, Cylma, 05OAD Office Administration 05, Union File 2015-0580-0007,
GSB 2015-1459
11. Marshall, Elizabeth, Welfare Field Worker 2, Union File 2015-0123-0004,
GSB 2015-1803
12. Ford, Kirk, Systems Officer 5, Union File 2015-0599-0012, GSB File 2015-2444
13. Canzius, Des, Systems Officer 4, Union File 2015-0599-0013, GSB File 2015-2470