HomeMy WebLinkAbout2017-3371.Allison.19-04-25 DecisionCrown Employees
Grievance Settlement
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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# 2017-3371
UNION# 2018-0708-0001
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Allison) Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE
Gail Misra
Arbitrator
FOR THE UNION
Dan Sidsworth
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Al. J. Quinn
Ministry of Community Safety and
Correctional Services
Senior Employee Transition Advisor
HEARINGS January 18, 2019 and April 18, 2019
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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 subcommittee 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 and 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. To that end, grievances are presented by way
of statements of fact and succinct submissions. On occasion, clarification has been
sought from grievors and institutional managers at the request of the Board. This
process has served the parties well. The decisions are without prejudice but attempt
to provide guidance for future disputes.
[7] Glenis Allison filed a grievance on January 4, 2018 claiming that she was forced to
resign her position as a regular classified Cook 2 under duress when she took a
position as a Correctional Officer (“CO”), and that she was treated differently than
two men in that she was not able to carry her seniority from her Cook position for
rollover purposes. Ms. Allison claims that this differential treatment was because
she is a woman. The grievor works at the Thunder Bay Correctional Centre
(“TBCC”).
[8] The grievor was a classified Cook 2 at the TBCC who applied for and was successful
in getting a fixed term CO position at the same institution. The Employer required
-3-
the grievor to make a choice as to which position she would hold as it would not
permit her to hold two positions. Ms. Allison chose to resign her position as a Cook
2 in order to take the fixed term CO position.
[9] After considering the facts and submissions made by the parties I am of the view
that this grievance must fail. There is nothing in the collective agreement that entitles
an employee to transfer her service and seniority from one position to a new position
as a fixed term CO. As well, nothing in the collective agreement obliges the
Employer to allow an employee to hold two different positions within the Ontario
Public Service. While agreement can be given, that is at the Employer’s discretion,
and is not a right enshrined in the collective agreement. As such, this Board does
not have the jurisdiction to review that decision.
[10] In this case, the Employer required the grievor to make a decision as to which
position she wanted. Having made that decision, the grievor resigned from her
position as a Cook 2, and there was therefore a break in the grievor’s service before
she was re-hired as a fixed term CO. Article 18.4 states that “Continuous service
shall be deemed to have terminated if: (a) an employee resigns or retires;…”. In
accordance with Article 18.4, the grievor’s resignation deems her continuous service
up to that point to have terminated, and she began anew as a fixed term CO.
[11] This issue has been determined by the Board on a number of occasions including
in the following decisions: OPSEU (Wiles) v. Ontario (MCSCS), GSB#2016-0300,
2016-0695, 2016-0696, December 6, 2016 (Briggs); OPSEU (Sutherland) v. Ontario
(MCSCS), GSB#2016-0461, September 11, 2017 (Briggs); and, OPSEU
(Bourgeois) v. Ontario (MCSCS), GSB#2017-0503, November 6, 2017 (Briggs).
Nothing on the facts before me in this case make the grievor’s situation any different
from those cases. This is not a matter of discrimination on the basis of gender, it is
simply an application of the terms of the collective agreement. For all purposes,
including for the purpose of rollovers, the grievor was not allowed to carry her
seniority from the time that she was a Cook 2 into her position as a fixed term CO
because she resigned her Cook 2 position before she took on the fixed term CO
position.
[12] For the reasons outlined above, this grievance is denied.
Dated at Toronto, Ontario this 25th day of April, 2019.
“Gail Misra”
______________________
Gail Misra, Arbitrator