HomeMy WebLinkAbout2022-4817.Karpenko.24-04-09 Decision
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
GSB# 2022-4817
UNION# 2022-0135-0018
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Karpenko) Union
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE Ken Petryshen Arbitrator
FOR THE UNION Katherine Ferreira
Koskie Minsky LLP
Counsel
FOR THE EMPLOYER Katie Ayers
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING April 5, 2024
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Decision
[1] In her grievance dated June 2, 2022, Ms. M. Karpenko claims that the Employer
contravened the Collective Agreement by not converting her to the Regular
Service. At the time, Ms. Karpenko was in a fixed-term Correctional Officer
position at the South West Detention Centre (“SWDC”). She is still in that position
today. The parties agreed to have this grievance addressed under the expeditious
and informal process set out in article 22.16 of the Collective Agreement. They
also agreed to only address the merits of the grievance at this stage of the
proceeding.
[2] Ms. Karpenko was continuously in the A4 Assist position in the Intake Unit from
November 2, 2020, until May 13, 2022, when she was assigned to a General Duty
Officer (“GDO”) position. Since she was performing the work of the A4 assist
position for more than eighteen months and since she maintains that this work
continued to be performed at the SWDC after she was assigned to the GDO
position, the Union submitted that the Employer’s obligation under article 31.15.1.1
had been triggered. This article reads as follows:
31A.15 CONVERSION OF FIXED-TERM POSITIONS TO POSITIONS IN
THE REGULAR SERVICE
31A.15.1.1 Where the same work has been performed by an employee
in the Fixed-Term Service for a period of at least eighteen
(18) consecutive months, except for situations where the
fixed-term employee is replacing a regular employee on a
leave of absence authorized by the Employer or as
provided for under the Central Collective Agreement, and
where the ministry has determined that there is a continuing
need for that work to be performed on a full-time basis, the
ministry shall establish a position within the Regular Service
to perform that work.
[3] The Employer relied on a number of submissions in support of its position that the
grievance should be dismissed. Employer counsel argued that the A4 Assist work
did not continue on a full-time basis thereby illustrating that there was not a
continuing need for that precise work to be performed. Counsel also submitted
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that a relevant distinction should be made between a posting and a position.
Counsel further submitted that the parties had determined some time ago in the
Corrections context that it was appropriate to have the requirements for
conversions or roll-overs to the Regular Service determined by local practices or
agreements.
[4] It may very well be that conversions and roll-overs at the SWDC are determined by
a local practice. However, I am of the view that this grievance should be
determined based the circumstances relied on by Ms. Karpenko to establish a
breach of article 31A.15.1.1.
[5] Having considered the circumstances and the submissions of counsel, including
the decisions they referred to me, I am satisfied that a violation of article
31A.15.1.1 has not been established. I have not been convinced that there was
continuing need for the work of the A4 Assist posted position to be performed on a
full-time basis. Therefore, I cannot find that the Employer was obliged in these
circumstances to establish a position in the Regular Service for Ms. Karpenko.
Accordingly, Ms. Karpenko’s grievance dated June 2, 2022, is hereby dismissed.
Dated at Toronto, Ontario this 9th day of April 2024.
“Ken Petryshen”
Ken Petryshen, Arbitrator