HomeMy WebLinkAbout2008-3458.Haring et al.22-06-16 DecisionCrown Employees
Grievance Settlement
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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
GSB# 2008-3458
UNION# 2009-0234-0013
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Haring et al) Union
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE
Ken Petryshen
Arbitrator
FOR THE UNION
Christopher Bryden
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER George Parris
Treasury Board Secretariat
Legal Services Branch
Counsel
SUBMISSIONS July 30, 2021
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DECISION
[1] The Haring group grievance before me is dated January 23, 2009. The
grievance has 6 signatories, all of whom claim entitlement to the Custodial
Responsibility Allowance (“CRA”). The signatories to the grievance are Ms. Debbie
Haring, Ms. Catherine Hollins, Ms. Katie Vanderyt, Ms. Judy Self, Ms. Kelli-Anne Quinn
and Mr. Rick Carmichael. They were classified at the relevant time as Rehabilitation
Officers 2 (“RO2”) and worked at the Maplehurst Correctional Complex. This group
grievance falls within the second of 5 groupings of outstanding CRA grievances.
[2] The Union filed particulars setting out the duties and responsibilities of the
employees in this grouping and Union counsel provided written submissions for the
purpose of establishing a prima facie case for entitlement to the CRA. This was
followed by written submissions from Employer counsel and written reply submissions
from Union counsel. It was assumed that the particulars filed by the Union to support its
best case accurately reflect the duties and responsibilities of each employee. The issue
for determination is whether a prima facie case had been made out for entitlement to
the CRA for each grievor.
[3] The CRA provision has been a feature of the Collective Agreement for many
years. The conditions for entitlement to the CRA can be found in Appendix COR2 of the
Collective Agreement for the Correctional Bargaining Unit. It provides that employees in
designated Ministries are entitled to the CRA if they fulfill all of the following
requirements:
(a) they are not professional staff such as teachers, nurses, social workers or
psychologists;
(b) the positions to which the employees are assigned are not covered by
classes which already take into account responsibility for the control of
offenders or wards, such as Correctional Officers, Industrial Officers,
Supervisors of juveniles, Observation and Detention Home Workers,
Recreation Officers (Correctional Services), Trade Instructors and Provincial
Bailiffs;
(c) (i) they are required, for the major portion of their working time, to direct
offenders or wards engaged in beneficial labour;
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or
(ii) as group leaders/lead hands, they are directly responsible, for a major
portion of their working time, for operations involving the control of a number
of offenders or wards engaged in beneficial labour; and
(d) they are responsible for the custody of offenders or wards in their charge and
are required to report on their conduct and lay charges where breaches of
institutional regulations occur.
[4] I find it unnecessary to describe the duties performed by each grievor in
detail. Suffice it to say that the grievors performed inmate classification duties,
temporary absence pass duties and WorkBoard duties. Some of the grievors were also
involved in assessing and interviewing inmates who applied for TAPs to work in the
“Cook Chill” program, community work gangs or Stores. In performing these duties, the
grievors did spend the majority of their working time interviewing and supervising
inmates.
[5] The Employer took the position that some of the duties the Union relied upon
with respect to Ms. Haring, Ms. Quinn and Ms. Vanderyt were post grievance duties and
that these duties could not be utilized to support their claim for entitlement to the CRA. I
find it unnecessary to decide this issue because the reliance on any post grievance
duties does not assist the Union’s position in this case.
[6] What is clear from the particulars is that the duties of the grievors relied on by
the Union do not meet all of the requirements necessary for entitlement to the CRA.
Most importantly, the grievors do not direct inmates while they are engaged in beneficial
labour for the majority of their working day as this requirement was interpreted in the
CRA decisions dated March 9, 2011 and May 28, 2021. The fact that the grievors
spend the majority of their time interviewing and supervising inmates illustrates that their
position is inmate focused such that it is likely that they were in a position that already
took into account responsibility for the control of inmates.
[7] In the decision dated May 28, 2021, in pages 10 to 12, I addressed and
dismissed claims by grievors who were engaged in duties that are similar to the duties
performed by the grievors in the instant case. There is nothing in the duties performed
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by the grievors covered by the group grievance which suggest that a different result is
warranted.
[8] It is my determination that a prima facie case for entitlement to the CRA has
not been established for the grievors. Accordingly, the Haring group grievance dated
January 23, 2009, is hereby dismissed.
Dated at Toronto, Ontario this 16th day of June, 2022.
“Ken Petryshen”
______________________
Ken Petryshen, Arbitrator