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HomeMy WebLinkAbout2017-0537.O'Toole.19-12-27 Decision Crown 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# 2017-0537 UNION# 2017-0234-0073 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (O’Toole) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) 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 the Solicitor General Employee Transition Manager HEARING July 19, 2019 and December 19, 2019 - 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 (now, the Ministry of the Solicitor General) 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] Ronny O’Toole is a Correctional Officer at the Maplehurst Correctional Centre. He filed a grievance on May 3, 2017 claiming that the Employer has incorrectly calculated his Continuous Service Date (“CSD”), causing him to lose five years of continuous service. He seeks to have his CSD changed to reflect his original start date, among other remedies sought. [8] The grievor believes that his hours worked at the Mimico Correctional Centre should be included in the calculation of his CSD, and in particular, maintains that there was a local practice or agreement at that facility that even if a Fixed-Term - 3 - employee (“FXT”) worked 36 hours in a week, she or he would be credited with 40 hours for that week. No evidence of such a practice or agreement is before me in this proceeding. [9] While the grievor had provided the parties with his pocket calendars for 2008 to 2010, he has not provided any pay stubs from the period to prove that he had worked 40 hour weeks that should have been counted in the calculation of his CSD. The onus is on the grievor to prove the hours and weeks he is claiming, and in this instance, since he is claiming five years of additional hours, it would be incumbent on him to do so with acceptable evidence, such as payroll stubs or schedules, which are objective forms of evidence beyond an individual’s personally prepared pocket calendars. [10] The grievor also alleges that during a period of 32 weeks when he was off work on WSIB, his hours should have been averaged at 40 hours per week, and therefore should have been counted towards his CSD. Based on the Employer’s submissions and documents, it appears that in the thirteen weeks prior to going off work on WSIB, Mr. O’Toole did not work 40 hours per week consistently. In particular, in the four weeks prior to the WSIB absence, the grievor had worked 36 hours per week. As such, his weekly average for the 13 weeks prior to going off on WSIB could not possibly have been 40 hours per week. [11] The calculation of a CSD is based on the number of 40 hour weeks that the employee had worked, or if on WSIB, where the average of the hours are 40 hours per week, based on the thirteen weeks prior to being injured and off work. Any weeks in which the employee had not worked 40 hours do not get counted towards the calculation of his CSD. Based on the parties’ submissions, and based on their detailed review of the grievor’s hours of work, it is apparent that there was an error made in the total calculation of Mr. O’Toole’s eligible weeks, and that 10 weeks should have been added to his full time weeks worked when calculating his CSD. [9] Having considered the facts and the submissions of the parties, and for the reasons outlined above, this grievance is upheld in part. The Employer is directed to amend the grievor’s CSD to reflect an additional 10 weeks. Dated at Toronto, Ontario this 27th day of December, 2019. “Gail Misra” Gail Misra, Arbitrator