HomeMy WebLinkAbout2011-0510.Skelton et al.22-06-17 DecisionCrown 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
GSB# 2011-0510; 2011-0541; 2011-0542; 2011-0569; 2011-0793
UNION# 2011-0369-0041; 2011-0369-0042; 2011-0369-0043; 2011-0369-0044;
2011-0369-0053
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Skelton 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 October 28, 2021
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DECISION
[1] I have five grievances before me in which each grievor claims entitlement to
the Custodial Responsibility Allowance (“CRA”). These grievances constitute the third
of 5 groupings of outstanding CRA grievances. The details of the five grievances in this
grouping can be described as follows. All of these grievances were filed by employees
who were classified as Rehabilitation Officers 2 (“RO2”) and worked at the Central
North Correctional Centre. Ms. Sue Skelton and Ms. Kelly Parsons (Moreau) filed their
grievances on February 1, 2011. Ms. Barb Clare-Powell and Ms. Charlene Schaper
filed their grievances on February 17, 2011. The grievance filed by Ms. Ruth Hamel is
dated May 26, 2011.
[2] The Union filed particulars setting out the duties and responsibilities of the
employees in this grouping. Union counsel also 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;
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(c) (i) they are required, for the major portion of their working time, to direct
offenders or wards engaged in beneficial labour;
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] The particulars demonstrate that the grievors perform various duties in
relation to inmate classification, orientation, educational sessions, work placement
board (“Work Board”), temporary absence passes and discharge planning. 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. The particulars
establish that the grievors spent the majority of their working time interviewing and
supervising inmates while performing their duties. In and around 2009 and 2011, the
grievors attended Special Custodial training.
[5] One of the conditions for entitlement to the CRA in Appendix COR2 is that an
employee is required to direct offenders engaged in beneficial labour for a major portion
of their working time. In previous CRA decisions dated March 9, 2011 and May 28,
2021, I determined that this condition required an employee claiming the CRA to be
directing offenders while they are engaged in beneficial labour for a major portion of
their working time. What the particulars do not establish in this instance is that, for the
major portion of their working time, the grievors were engaged in directing inmates while
the inmates were performing beneficial labour. Another condition for entitlement to the
CRA is that an employee is not assigned to a position which already takes into account
responsibility for the control of inmates. 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.
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[6] In the CRA decisions dated May 28, 2021, and June 16, 2022, I addressed
and dismissed claims for entitlement to the CRA by grievors who performed duties
similar to those performed by the grievors in this case. The June 16, 2022 decision
dealt specifically with claims by RO2s at a different correctional institution. The
similarity in duties preformed by the grievors in the second and third grouping of CRA
grievances suggest that the same result is warranted.
[7] It is my conclusion based on the particulars and the written submissions that
a prima facie case for entitlement to the CRA has not been made for the grievors.
Accordingly, the grievances referred to in paragraph 1 of this decision are hereby
dismissed.
Dated at Toronto, Ontario this 17th day of June, 2022.
“Ken Petryshen”
______________________
Ken Petryshen, Arbitrator