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HomeMy WebLinkAbout2021-3398.Brown.2022-11-08 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#2021-3398; 2021-3399; 2021-3416 UNION#2020-0411-0030; 2021-0411-0031; 2021-0411-0004 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Brown) 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 Ministry of the Solicitor General Manager, Employee Transition Unit HEARING September 28, 2022 and November 1, 2022 - 2 - 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 the Solicitor General as well as the Ministry of Children, Community and Social Services restructuring initiatives around the Province. Through the MERC (Ministry Employee 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 - 3 - 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] Kristina Brown is a Finance Clerk - Accounts Payable at the Ottawa Carleton Detention Centre (OCDC). On November 17, 2021 Ms. Brown filed Grievance No. 2021-0411-0030 claiming that the Employer has incorrectly credited her with service and/or seniority after she accepted a full time position with the Ministry of the Solicitor General (SOLGEN) on September 20, 2021. By way of remedy, Ms. Brown seeks to be made whole. [8] On October 28, 2021 Ms. Brown filed a second grievance, No. 2021-0411-0031, essentially making the same claim as was made in the first grievance. The grievor asserts that she had been working for the Ministry of the Environment, Conservation and Parks (MECP) until September 19, 2021, and at that juncture her Continuous Service Date (CSD) was listed in WIN as 2007/05/07; her Severance Credit Date was 2008/09/20; and her Vacation Credit Date was 2008/09/20. After she started at the OCDC job, all these dates were deleted in WIN and changed to other more recent dates. Upon query, she was advised that her CSD was October 7, 2019 because she had resigned from the regular service, so her previous service had - 4 - been lost. The grievor claims she never resigned from the Ontario Public Service and that she has worked continuously without any break in service. She believes that the provisions of Article 18.4 of the collective agreement do not apply to her as she has never resigned or retired, and does not meet any of the other provisions in that Article that would lead to her continuous service being deemed to have terminated. As such, the grievor seeks to be made whole. [9] In Grievance No. 2022-0411-0004, Ms. Brown has filed a third grievance about the same issue again. She claims she has been misled by various people since 2019. In April 2019, when she wanted to move from a job in the regular service to a seasonal job as a Senior Park Clerk at Rideau River Provincial Park, she apparently spoke to someone at the Ontario Shared Services (OSS) Help Desk, and was led to believe that there would be no break in her regular service since she was going from one full time position to another. A few months into that job, when she had not been paid for vacation, she called the OSS Help Desk again. She was told that she had to sign a resignation package in order to get paid out her vacation pay. Ms. Brown claims that she was told at the time that she was not really resigning, and that her service and other dates would not be impacted, but that this was the way to get her vacation paid out. The grievor states that she took the OSS person at their word, signed the documents, and noted that her various dates did not change in WIN after that. The grievor continued to work in a seasonal capacity until September 2021. [10] In September 2021 Ms. Brown won a competition for a position back in the regular service at the OCDC as a Finance Clerk - Accounts Payable. Since her last day of work in her previous job was September 19, 2021 and her first day at OCDC was - 5 - September 20, 2021, she believes that there was no break in service, and that WIN still showed her various dates as unchanged. However, when her paperwork for the new job was processed, she saw that all her credit dates had changed. When she looked into the matter, OSS North Bay told her it was because she had resigned in 2019. The grievor maintains that she never resigned, and that she had simply trusted what she was told by the OSS Help Desk at that time. [11] From a review of the Employer’s records it appears that Ms. Brown worked in a series of seasonal and Fixed Term (FXT) contracts from 2007 to 2010. Effective November 15, 2010 she accepted a regular full time position working as a Customer Care Representative 2 in Service Ontario, in the Ministry of Government and Consumer Services (MGCS) . On April 23, 2019 she began a new FXT seasonal position as a Senior Park Clerk in the Ministry of Environment, Conservation and Parks. The grievor maintains that there was no change to her CSD, severance and vacation credits when she made the move from MGCS to MECP, and from the regular service to the MECP FXT seasonal job. [12] The “Public Service Commission Directives, Employment Policy” outlines various policy aspects regarding employment in the Ontario Public Service. The section titled “Appointment, Assignment and Transfer” states in part as follows: This section sets out mandatory requirement for establishing and/or modifying the employment relationship, other than for workforce adjustment or termination, which are set out separately within this policy. The deputy minister may appoint, assign or transfer a public servant in accordance with the authority under the Public Service of Ontario Act, 2006 (PSOA), the Public Service Commission (PSC), and Commission public body and ministry delegations. 9. Mandatory Requirements – Appointment, Assignment and Transfer - 6 - No person who is a regular employee shall be employed as a fixed-term employee except with the approval of the PSC. [13] Based on the Policy, in order to take the seasonal job, Ms. Brown would have had to resign from her regular service position, as an employee cannot hold two positions in the OPS unless the Employer specifically permits it. There is no evidence before me that there was approval from any of the delegated authorities to permit the grievor to maintain her regular service position and take on the FXT seasonal job. [14] It appears that the grievor was not aware of this at the time, nor did anyone in management bring it to her attention. In any event, it would appear Ms. Brown had not officially resigned by the time that she later contacted OSS in and around the late summer of 2019, when she was wondering why she had not received her vacation pay. That was when she was told she had to complete the Resignation Package in order to be paid out for vacation pay that was due to her from the time she had been working in the regular service. There is no dispute that from April 2019, when she started working as an FXT seasonal employee, up to that point in August 2019, the grievor had been paid vacation pay on each pay cheque consistent with her letter of hire as a FXT seasonal worker, at the rate of 5.75% of gross pay in lieu of vacation. [15] A Resignation Package was sent to Ms. Brown for her review and signature. The Resignation Package had that title on the first page in bold letters. It indicated that the grievor was resigning from her position as a Customer Care Rep – RO at the Ministry of Government & Consumer Services, and that her Resignation Date was April 19, 2019. Her CSD at that time was listed on the form as 2007/05/07, and her - 7 - Severance Credit Date was 2008/09/20. On the first page of the Package it stated “The following will provide you with information about your pension, benefits and termination entitlements upon resignation”. Anyone reading the document should therefore have been alerted to the fact that this was all about “resignation”, as the title of the package indicated. [16] The grievor signed the Resignation Package in two places. Her last signature was after she had checked a box that indicated “I have read and understand this document”, and she then dated the document 2019/08/28. Ms. Brown was subsequently paid out her vacation pay in November 2019. [17] As outlined earlier, the grievor continued to work in a seasonal FXT capacity until on September 20, 2021 Ms. Brown accepted a regular full time position at the OCDC, and it was at that juncture she was advised of her new CSD, which she contests. [18] From all of the evidence provided by the grievor, it is apparent that she did not comprehend that signing the Resignation Package would amount to a resignation from her regular service job, and would lead to a break in her service in the OPS. While no one at OSS has been identified by the grievor as the person or persons she spoke to or received information from, Ms. Brown believes that she was told that signing the Resignation Package would not affect her CSD. Nonetheless, if the grievor received that information, and I have no way of knowing if she did, it was incorrect. [19] As outlined above, pursuant to the Policy, a classified regular employee in the OPS cannot hold their regular status and as well work in a FXT capacity unless the - 8 - Employer has agreed to permit the holding of two positions. It is extremely unfortunate that the grievor either received bad advice, or did not fully comprehend what was clear on the face of the Resignation Package and at various places in that package: That by signing, she was confirming her intention to resign from the regular service, and was seeking to have whatever payouts were due to her. It is unclear why she did not realize that it was because she was resigning from her regular service position that she was being offered the options of putting her vacation pay into her RRSP, or to otherwise limit the tax consequences for her vacation payout by deferring payment into the following year, but I accept that she was acting under the misapprehension that a resignation was not really a resignation. [20] After considering the facts and submissions made by the parties I am of the view that this grievance must fail even though I am sympathetic to the situation that the grievor finds herself in, as she apparently sought advice from people at OSS and acted on it. However, I am bound to apply the terms of the collective agreement, and there is nothing in the collective agreement that entitles an employee to a transfer of service and seniority from a regular position to a new position as a fixed term employee when they have resigned from their regular service job. As well, nothing in the collective agreement obliges the Employer to allow an employee to hold a regular and a fixed-term position within the Ontario Public Service. Rather, this is an area that is covered by the Employer’s management rights, and the application of the “Public Service Commission Directives, Employment Policy”. [21] In this case, while it appears that the grievor was not told this at the time she accepted the seasonal job in April 2019, the Employer ultimately required the - 9 - grievor in August 2019 to make a decision as to which position she wanted. Once she made the decision to sign the Resignation Package, she officially resigned from her regular classified position as a Customer Care Rep – RO. That caused a break in her service. Article 18.4 states that “Continuous service shall be deemed to have terminated if: (a) an employee resigns or retires; …”. In accordance with Article 18.4, the grievor’s resignation deems her continuous service up to that point to have terminated, and she began anew in her FXT seasonal Park Clerk job. [22] This issue has been determined by the Board on a number of occasions including in the following decisions: OPSEU (Wiles) v. Ontario (MCSCS), GSB#2016-0300, 2016-0695, 2016-0696, December 6, 2016 (Briggs); OPSEU (Sutherland) v. Ontario (MCSCS), GSB#2016-0461, September 11, 2017 (Briggs); and, OPSEU (Bourgeois) v. Ontario (MCSCS), GSB#2017-0503, November 6, 2017 (Briggs), OPSEU (Cheriakara) v. Ontario (SOLGEN), GSB#2019-2121, September 30, 2020 (Misra). Nothing on the facts before me in this case makes the grievor’s situation fundamentally any different from those cases. This is simply an application of the terms of the collective agreement and the Employer’s Policy. [23] Having considered the submissions of the parties, and for the reasons outlined above, these grievances are hereby dismissed. Dated at Toronto, Ontario this 8th day of November 2022. “Gail Misra” _________________ Gail Misra, Arbitrator