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Home My WebLink About2013-1446.Union.24-04-18 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# 2013-1446; 2013-1574; 2013-1696 UNION# 2013-0999-0049; 2013-0999-0063;2013-0999-0069 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) 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 25, 2024 -2 - Decision [1] This motion relates to a series of grievances regarding the operation of the Transition Exit Initiative, (“TEI”), under Appendix 46 of the Collective Agreement. The parties agreed that the current matter should be determined in accordance with Article 22.16 of the Collective Agreement with brief reasons for decision. [2] Appendix 46 was introduced in the 2013-2014 collective agreement and took effect January 24th, 2013. It was renewed as part of the 2018-2021 without further amendments, but on December 12, 2018, the Secretary of Cabinet issued an OPS wide memo announcing further measures to address the fiscal challenges that the government was facing at the time. [3] I have issued a succession of awards interpreting the scope and limits to managements’ discretion to approve applications for TEI under Appendix 46. Generally, I have concluded that TEI is not a general retirement allowance that must be provided to everyone who requests it but is instead a targeted inducement that management can approve where doing so would assist it to transform the OPS. [4] The essential guiding principles from my earlier awards are: 1. Appendix 46 confers a broad discretion on the Employer to determine whether granting a request for TEI would support its vision of transformation: Koeslag et al., issued January 12, 2016. 2. 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 -3 - irrelevant considerations or otherwise violate the principles set out in Re Kuyntjes, GSB #513/84 (Verity); Koeslag, supra. 3. While 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’. In so doing, the Employer may determine which factors are relevant to exercising their discretion: Vadera, issued June 28, 2018. [5] The Union is seeking directions on whether the Memo from the Secretary of Cabinet fundamentally changes the operation of the TEI so that the basic guidelines I have already issued, should now be reconsidered. [6] The memo is reproduced below: As part of the government's comprehensive plan to address its fiscal challenges, the government is exploring measures to manage its compensation costs in a way that ensures vital services to citizens are not compromised while avoiding involuntary job losses. To help streamline the size of the Ontario Public Service (OPS), the current focus is on leveraging available programs that will allow employees to exit the organization on a voluntary basis. As such Cabinet has approved a time-limited Transition Exit Initiative Expansion and a new Voluntary Exit Program within the OPS. Since 2013, the Transition Exit Initiative (TEI) has been available for regular and regular part-time OPS employees who are represented by OPSEU, AMAPCEO, PEGO, ALOC and the OCAA. Effective January 1, 2019, the TEI program will be temporarily expanded to regular and regular part-time employees in the following employee groups: • Crown Counsel Excluded -4 - • Excluded Category Correctional (COR Excluded) • Excluded Category Unified (UN Excluded) • Management Compensation Plan, Individual Contributor Under the expanded TEI, the groups of employees listed above will be able to submit their applications for approval to exit the organization until February 28, 2019. Voluntary exits under the TEI for non-bargaining staff must then take place between January 1, 2019, and December 31, 2019. Further, a similar Voluntary Exit Program (VEP) will also be temporarily created and made available to regular and regular part-time employees for the following employee groups: • Management Compensation Plan, Actuarial Science (PAC 23, 22) • Management Compensation Plan, Management Crown Counsel 5A • Management Compensation Plan, Manager • Management Compensation Plan, Medical Management Group • Management Compensation Plan, Management Engineers and Management Land Surveyors • Senior Management Group Executive 2, 3 or 4 (Executive 2-4) • Management Crown Counsel 5B, 5C or 5D (CC5B-D) Under the temporary VEP, effective January 1, 2019, the groups of employees listed above will be able to submit their application for approval to exit the organization until February 28, 2019. Voluntary exits under the VEP must then take place between January 1, 2019 and December 31, 2019. Application forms for non-bargaining employees are available and employees will be permitted to apply immediately, but not exit until January 1, 2019. Further information, including application forms and fact -5 - sheets outlining specific entitlements, are available with the existing TEI program materials on the [intra link removed]. Please note that there have been no changes to the existing TEI program entitlements or application process for bargaining agent- represented employee groups. However, bargaining represented employees who have previously submitted TEI applications may wish to enquire on the status of their TEI application with their Home Position Manager or re-submit a new application for consideration. Should you have any further questions about any of these exit programs, please contact your Human Resources Advisor. Analysis [7] The Union frames the Cabinet Office memo as a call to all OPS employees to consider applying for TEI, offering them the choice of a voluntary exit from the OPS. By issuing the memo, the Employer was actively soliciting more applications for TEI, which indicated a need for the departure of more staff. In that sense, the memo should be read as supporting a more permissive approach to granting applications for TEI. [8] The primary argument raised by the Union is one of fairness. The Employer had largely, although not exclusively, restricted approval of TEI to circumstances where the departing employee’s position would be eliminated, thus reducing complement on a voluntary basis. Certain classes of employees, most notably correctional officers, did not fare well under management’s vision of transformation. -6 - [9] Corrections has historically required more, not less staffing. This meant that applications for TEI from correctional officers were routinely denied. Once others in correctional facilities, such as Operational Managers, could access comparable benefits, the Union suggests that it is manifestly unfair that correctional officers be denied those opportunities. [10] The Employer disputes this position and argued that the memo merely expands the plan to include previously excluded employees and create a parallel program for management but does not change the way TEI operates or create any new obligations. [11] After careful consideration of the submissions of the parties, I have concluded that the memo from the Secretary of Cabinet does not change the applicability of the principles established in earlier cases. I say this for four main reasons: 1. The memo includes an explicit statement that ‘there have been no changes to the existing TEI program entitlements or application process’. 2. When read as a whole, I am satisfied that the intent of the memo was limited to announcing a temporary expansion of the initiative so that previously excluded employees would have temporary access to TEI or a comparable programme. 3. The memo reinforces what I determined was the original intention underlying the TEI: to reduce costs while avoiding involuntary job losses. A continued focus on the same goal supports the continued applicability of the principles developed before the memo was issued. 4. In any event, the memo from Cabinet is not binding and does not purport to amend Appendix 46. The basis on which TEI will be granted -7 - has been known for some time and it was open to the parties to renegotiate the terms of Appendix 46. They have not changed the criteria for TEI approval, and I see nothing in the memo from Cabinet that alters or modifies the way in which the TEI initiative will be administered, except for the expansion of the programme to previously excluded employees. [12] The parties are directed to bring forward the remaining grievances for hearing in accordance with my previous directions and the principles set out in my earlier awards. Dated at Toronto, Ontario this 18th day of April 2024. “Reva Devins” Reva Devins, Arbitrator