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Home My WebLink About2013-1446.Union-Warszawski et al 23-06-08 Decision GSB#2013-1446, 2013-1574, 2013-1696 UNION#2013-0999-0049; 2013-0999-0063; 2013-0999-0069 Appendix “A” attached 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 - Warszawski et al) Union - and - 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 March 3, April 5 and May 11, 2023 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 - 2 - 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 a Book of Documents that set out the circumstances that relate to each grievor and the Ministry’s response, including the grievance, Will Say Statements where provided, and accompanying documents. Generally, these grievances were filed by 11 grievors 1, none of whom were approved to receive enhanced benefits under the TEI. 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. - 3 - 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]. 3. 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. - 4 - ii. Despite this broad discretion, the ordinary principles for the proper exercise of discretion apply. Consequently, when the Employer 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 several 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. - 5 - 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. viii. The failure to grant a request for TEI on compassionate grounds is not an improper exercise of discretion. Nor is it evidence of bad faith where the Employer reclassifies a position, or reassigns, all or part of the grievor’s job duties to another location, or to an accommodated employee after a grievor retires: Bowman, issued March 4, 2020; Othman and Desjardine, issued June 23, 2022); and Hachey, issued on June 24, 2022. [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 - 6 - already determined, TEI is not a general retirement allowance provided to everyone who requests it. [6] After careful consideration of the evidence and submissions of the parties, I have applied the principles established in earlier cases to the facts that pertain to Grievors Visram, Collins, Barrett, McEwan, Anderson, Wyer, Divell and Yancan and determined that the Employer properly exercised its discretion when it considered their requests to exit under the TEI. [7] Grievors Warszawski, Elliott and Datta were on LTIP when they submitted their request for TEI and no longer held a home position. The Employer did not consider the TEI applications from employees on LTIP separately, which the Union asserts amounts to discrimination based on disability. The Union maintained that these employees were entitled to individual consideration of their request, even if they may not have been eligible for TEI. Assessing them as a class in receipt of LTIP, is a determination based solely on their disability, and therefore in violation of the Ontario Human Rights Code. [8] In the Employer’s submission, TEI is like many benefits that are not available to employees who are not present in the workplace. The Board has found that this is not a violation of the Code, given the underlying objective of the benefit program: OPSEU (Union) v Ministry of Government Services, (2012) GSB #2010-0405 (Abramsky). The Employer argued that in this case, granting TEI benefits to applicants on LTIP could not assist with the reduction of positions or downsizing the OPS and therefore could not prevent another employee from being laid off. - 7 - The departure of employees on LTIP would therefore have no impact on transformation of the OPS. [9] Having considered the positions of the parties, I am persuaded that the Employer’s conduct did not amount to prohibited discrimination based on disability. While it is true that as a class these grievors were absent from the workforce by virtue of their disability, for the purposes of TEI, the critical factor was that they no longer held a permanent position that could be eliminated if they exited the OPS. [10] Approval of a request for TEI, as that discretion has been exercised by the Employer, is rooted in the employee’s willingness, and ability, to relinquish their permanent position in exchange for enhanced benefits. The elimination of their position is what prevents the surplussing of another individual. Since individuals on LTIP no longer hold a home position, they cannot meet the essential criteria to be granted TEI. In these circumstances, I find that the Employer did not violate the Ontario Human Rights Code when it considered the requests for TEI submitted by individuals on LTIP. [11] The grievances are therefore dismissed. Dated at Toronto, Ontario, 8th day of June 2023. “Reva Devins” Reva Devins, Arbitrator - 8 - Appendix A Name Ministry GSB# Union# Anderson, Yvonne MOH 2016-1050 2016-0468-0031 Barrett, Shirley MTO 2016-2690 2017-0429-0001 Collins, Allan MTO 2014-0648 2014-0102-0025 Datta, Ajay TBS 2014-4446 2014-0533-0045 Divell, Dale TBS 2013-3235 2013-0533-0013 Elliott, Terri MCU 2014-4048 2014-0123-0008 McEwen, Susan MLITSD 2015-2334 2015-0230-0011 Visram, Annar TBS 2014-4842 2015-0533-0007 Warszawski, Silvana MLITSD 2014-1754 2014-0527-0010 Wyer, Heather MOH 2017-0370 2016-0468-0057 Yancan, Kathy TBS 2013-3432 2013-5105-0078