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Home My WebLink About2013-1446.Union-Barber et al.24-06-03 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# 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 – Barber 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 April 29 and May 23, 2024 -2 - Decision [1] These grievances relate to 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 Union submitted a Book of Documents with the grievances, Will Say Statements, where provided, and accompanying documents that set out the circumstances that relate to each grievor. Generally, the grievances were filed by grievors1 who applied for but were not approved to receive enhanced benefits under the TEI before they retired from the Ontario Public Service (“OPS”). Appendix 46 [3] The relevant provisions of Appendix 46 are set out below: 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 sole discretion. The Employee’s request will be submitted to the Corporate Employer. The Employer’s approval shall be based on the following considerations: 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. 1 The names of the grievors are listed in Appendix A. -3 - iii) The Employer will consider whether employees are on the TEI lists when making surplus decisions. iv) 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. Analysis [4] I have 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. 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. -4 - 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. 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 memo issued on December 12, 2018, by the Secretary of Cabinet announcing further measures to address the fiscal challenges that the government was facing at the time, did not change the applicability of the principles established in earlier cases: Union (motion for direction), issued April 18, 2024. [5] I appreciate that the memo issued by the Secretary of Cabinet in 2018 renewed expectations that TEI would be granted more liberally, and that the grievors genuinely believe their applications could and should have been approved. TEI is -5 - clearly a significant benefit for retiring employees. Regrettably, as I have already determined, TEI is not a general retirement allowance provided to everyone who requests it. [6] The parties agreed that most of the arguments raised in these grievances have been addressed in earlier decisions. However, there were some new or factually distinct issues. [7] Grievors McCann and Belifore claimed that TEI was granted to more junior employees who worked in the same office and occupied the same position. The Employer provided the CSD dates for the Grievors and for those employed in the same position in their office who were granted TEI. In both cases, I am satisfied that the Grievors were junior to the employees who were granted TEI. [8] Several other grievors, who were employed as Correctional Officers, argued that junior employees were granted TEI when the Bailiff position was eliminated. The Employer denied the allegation and relied on a jointly agreed to Memorandum of Agreement (“MOA’”) that managed the elimination of the Bailiff position. [9] Under the terms of the MOA, Bailiffs were offered two choices: they could elect TEI and leave the OPS, or they could become a Correctional Officer at an institution of their choice. The Employer committed to creating 30 new Correctional Officer positions to facilitate the move. [10] The Union acknowledged that Bailiffs and Correctional Officers did not share the same classification, and that the MOA provided for movement to a new position or classification for Bailiffs who chose to remain in the OPS. [11] Accordingly, when the Bailiffs received TEI, they were not yet Correctional Officers. If they elected to become a Correctional Officer, they moved into newly created positions. I have therefore concluded that elimination of the Bailiff positions did not result in TEI being granted to junior employees in the same position as more senior Correctional Officers. Nor did the Employer eliminate any Correctional Officer positions. -6 - [12] Having reached these conclusions, and after applying the principles established in earlier cases, I have determined that the Employer properly exercised its discretion when it considered all the grievors’ requests to exit under the TEI. [13] The grievances before me are therefore dismissed. Dated at Toronto, Ontario, this 3rd day of June, 2024. “Reva Devins” Reva Devins, Arbitrator -7 - Appendix A – May 23, 2024 Tab# GSB# Name Ministry Classification Location 1 2019-0430, 2019-1835, 2019-1997 Barber, Stewart SOLGEN CO2 Maplehurst Correctional Institution 2 2019-0481 Hutton, Iain SOLGEN CO2 CECC 3 2019-0482 Beck, Glennis SOLGEN CO2 CECC 4 2019-0483 Mrowiec, Jacek SOLGEN CO2 CECC 5 2019-0762 Bertillo, Lawrence SOLGEN CO2 OCI 7 2019-2112 D'Andrea, Kevin SOLGEN CO2 Maplehurst Correctional Institution 8 2019-1866 Adams, Ian SOLGEN CO2 Maplehurst Correctional Institution 9 2019-1181 Diruzza, Aldo SOLGEN CO2 Maplehurst Correctional Institution 10 2019-1263 Narejko, Frank SOLGEN CO2 Maplehurst Correctional Institution 11 2019-1267 Valleau, Mary SOLGEN CO2 Vanier 12 2019-1270 Chroust, John SOLGEN CO2 Maplehurst Correctional Institution 13 2019-1548 Holland, Joanne SOLGEN CO2 Maplehurst Correctional Institution 14 2019-1549 Sikal, David SOLGEN CO2 Maplehurst Correctional Institution 15 2019-0934 Moroun, Ian SOLGEN CO2 SWDC 16 2019-1906 Holloway, Tracey SOLGEN CO2 OCI 17 2019-1118, 2019-1836 Renda, Frank SOLGEN CO2 Maplehurst Correctional Institution 18 2019-1785 Prentice, Andrew SOLGEN CO2 Elgin Middlesex 20 2019-1787 Tuff, Cindy SOLGEN CO2 Elgin Middlesex 23 2019-0485 White, Carl SOLGEN CO2 CECC 24 2019-0565 Kerr, Robert SOLGEN CO2 CECC 25 2019-0613 Thomas, Malcom SOLGEN CO2 CECC 26 2019-0835 Burrage, Kerry SOLGEN CO2 CECC 27 2019-2287 Worona, Anthony SOLGEN CO2 CECC 28 2019-0969 Carson, William SOLGEN CO2 CNCC 29 2019-0970 Marshall, Daniel SOLGEN CO2 CNCC 30 2019-0971 Robitaille, Jason SOLGEN CO2 CNCC 33 2019-0865 Mackevicius, Robert SOLGEN CO2 Sudbury Jail 35 2019-0905 Young, Andrew SOLGEN CO2 Quinte 36 2019-0906 Elliott, Wayne SOLGEN CO2 Quinte 37 2019-0975 De-Jong, David SOLGEN CO2 Quinte 38 2019-0976 Hicks, John SOLGEN CO2 Quinte 39 2019-0977 Jikeli, Arpad SOLGEN CO2 Quinte 40 2019-1054 Leonard, Steven SOLGEN CO2 Quinte 44 2020-0760 Cirello, Sandro SOLGEN Fire Advisor 1 3767 HWY 69 South Sudbury 43 2019-0491 Derstroff, Richard SOLGEN Fire Investigator 2 Midhurst 42 2019-0490 Fischer, Bryan SOLGEN Fire Investigator 2 FIS Team 2 - Midhurst 41 2019-2414 Lovelock, Heather SOLGEN OAG 9 CECC 46 2019-0760 Adams, Diana SOLGEN PPO2 15 Ontario Road Walkerton -8 - 48 2019-1629 Belifore, Tony SOLGEN PPO2 P&P Black Creek 111 2019-0974 Davidson, Lee- Anne SOLGEN PPO2 P&P Ottawa West 45 2019-0853 McCann, Barry SOLGEN PPO2 390 David Dr Newmarket 47 2019-0941 McLaurin, Robert SOLGEN PPO2 10A Hearst Way Kanata 6 2019-0828 Beale, Susan SOLGEN Soc Wrk Supr 1 OCI