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Home My WebLink About2012-1159.Klonowski.12-11-21 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2012-1159, 2012-1160, 2012-1161, 2012-1162, 2012-1463 UNION#2012-0369-0033, 2012-0369-0034, 2012-0369-0035, 2012-0369-0036, 2012-0369-0045 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Klonowski) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Felicity D. Briggs Vice-Chair FOR THE UNION Tim Mulhall Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Greg Gledhill Ministry of Government Services Centre For Employee Relations Staff Relations Officer HEARING October 15, November 13, 2012. - 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 Community Safety and Correctional Services as well as the Ministry of Children and Youth Services restructuring initiatives around the Province. Through the MERC (Ministry Employment Relations Committee) a sub committee 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 as well as 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 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 than other forms of litigation. To that end, grievances are presented by way of statements of fact and succinct submissions. On occasion, where necessary, clarification has been sought from grievors and institutional managers at the request of the Board. This process continues to serve the parties well. The decisions are without prejudice but attempt to provide guidance for future disputes. - 3 - [7] Ms. Kimberly Klonowski is a Correctional Officer at CNCC. She filed five grievances, all of which allege that she was improperly denied a transitional job trade which would allow her to retire and receive six months of non working notice or an equivalent lump sum payment. [8] In March of 2012 the parties agreed to a Memorandum of Agreement regarding transitional job trades. The parties agreed to facilitate job trades “to assist the employment stability of staff who may be considered job threatened due to the decommissioning of the Bluewater Youth Centre and the downsizing of Brookside Youth Centre and Cecil Facer Youth Centre.” The agreement allowed job threatened classified Youth Service Workers to trade with classified Correctional Officers who were interested in leaving (or retiring from – if eligible) the Ministry of Community Safety and Correctional Services. The agreement stated, at paragraph 6: The employee trading with the job-threatened employee will receive surplus notice and be laid off at the end of the notice period. The rights and entitlements of the employee trading will be in accordance with the collective agreement; however the provisions in Article 20 relating to redeployment, displacement, conditional assignments, temporary vacancies, recall and voluntary exit option will not apply. With respect to Surplus Factor 80, it must be obtained by December 31, 2012, as per the collective agreement. [9] Paragraph 3 of the agreement stated: Job trade matches will be made based on seniority, i.e. the most senior employee first and then in descending order until all required opportunities are filled. [10] Interested employees had to apply no later than May 4, 2012 and the successful employees were to be notified no later than the end of May, 2012. [11] Ms. Klonowski applied for such a trade but was not successful. According to the email record, she was told that she did not obtain a transitional job trade because only one job threatened employee who was interested in a job trade to CNCC. As there was a more senior Correctional Officer who had applied for a job trade at CNCC, the grievor was denied her request. [12] In the witness statement provided by the grievor, she contended that her grievance should be upheld for the following reasons: • The Employer had no right to enter into this agreement with the Union; - 4 - • The improper agreement specifically violated her rights under Article 20 of the Collective Agreement; • The successfully matched Correctional Officer had already reached Factor 90 thereby disentitling him from participating in the transitional job trades; • The granting of the job trade to the successful Correctional Officer was improperly motivated by an agreement to resolve other outstanding grievances. [13] In addition to the submissions the grievor noted that the failure to grant her this job trade has substantially affected her mental health and for that reason she is currently on a medical leave. The situation has had a “very negative impact” on her life including her ability to work and support her family. [14] While I am sympathetic to the grievor’s situation, I am of the view that the grievances must fail. [15] The grievor contended that the Employer had no right to enter into this agreement with the Union. I disagree. Indeed, through various agreements these parties have worked together to address ongoing employment stability issues in a fashion that has worked to the advantage of both parties. [16] The purpose of the cross ministerial agreement was to ensure that classified employees in the Children and Youth Services Ministry who were job threatened might have continued employment if there was a classified employee in MCSCS who was willing to be declared surplus and be laid off at the end of the notice period. In my view, not only are the parties entitled to make such an agreement but they are to be commended for agreeing to a procedure which would significantly benefit both parties. [17] This matter might be different if an agreement between the Employer and the Union was designed to treat some employees arbitrarily, discriminatorily or in bad faith. That is certainly not the present case. - 5 - [18] While the Correctional Officer from CNCC who received the transitional job trade may or may not have agreed to withdraw grievances during the course of his discussions with the Employer, there is no doubt that he had more seniority than the grievor and therefore was entitled to the trade. [19] It is unfortunate that the grievor has found this situation to be difficult. However, there is nothing improper about the facts in this case. Accordingly, the grievances are denied. Dated at Toronto this 21st day of November 2012. Felicity D. Briggs, Vice-Chair