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Home My WebLink About2013-1446.Alcock-Union.20-03-02 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#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 (Alcock-Union) Union - and - The Crown in Right of Ontario (Treasury Board Secretariat) Employer BEFORE Reva Devins Arbitrator FOR THE UNION Richard Blair Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel HEARING February 27, 2020 - 2 - Decision [1] These grievances are part of a series regarding 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. [2] There are five grievances under consideration. Four grievors held administrative positions in the Ministry of the Solicitor General (“SOLGEN”) and the fifth, Mr. Difranco, was employed as a Rehabilitation Officer in the same Ministry. [3] Prior to their retirement, each Grievor requested enhanced severance benefits under TEI in exchange for their commitment to voluntarily exit the OPS. The Employer considered their requests but did not approve them. As they have maintained in earlier cases, the Union alleges that the Employer failed to properly process and administer the requests; specifically, that the Employer relied on a narrow set of facts, to the exclusion of other relevant factors and, in so doing, fettered their discretion. [4] The Employer maintains that it concluded that there was an ongoing need for the Grievors’ positions and that, therefore, in its opinion, their exit from the Ontario Public Service (“OPS”) would not support the Employer’s vision of transformation. It further submitted that these grievances were virtually identical to those considered in earlier cases where it has already been determined that the Employer properly exercised its discretion in similar circumstances. - 3 - Agreed Statement of Facts [5] The parties submitted an Agreed Statement of Fact (“ASF”): 1. A number of employees in various positions employed by the Ministry of the Solicitor General (the “Ministry”) working in a number of institutions/workplaces applied for TEI between January 2013 to December 2018 (the “TEI Applications”). 2. There were five (5) individual applicants: a. Louise Alcock (Admin Assistant, OAG8) b. Vince Difranco (Rehabilitation Officer 2) c. Bonnie Dreger (P&P Admin Support Clerk, OAG8) d. Sherry Loiselle (Personnel Clerk, OAG9) e. Jane O’Regan (Health Care Clerk, OAG6) 3. The Ministry did not approve any of the TEI Applications filed by the above noted employees. 4. The Union filed grievances between January 2013 and December 2018 on behalf of the above-noted employees whose TEI applications were not granted (the “TEI Grievances”). 5. For the purposes of these grievances, the Employer does not dispute that the requirements of paragraph 2(i) of Appendix 46 were met. This is without prejudice to other matters. - 4 - 6. It would be the Ministry’s evidence that it did not grant the above-noted TEI Applications for the following reasons: At the time of the TEI Applications and the TEI Grievances, the Ministry had no intention of reducing the number of employees in the impacted workplaces and the exit of the above noted applicants would not support the transformation of the Ontario Public Service. The Union does not have evidence to the contrary. 7. Each of the grievors retired after their TEI application was filed and remained pending. a. Louise Alcock applied for TEI on March 6, 2013 and retired on November 30, 2013. It will be the Ministry’s evidence that the position of Administrative Assistant (Position # 00028358) in Justice Technology Services was filled on May 20, 2014 and continued to be required. The union does not have evidence to the contrary. b. Vince Difranco applied for TEI on March 8, 2013 and retired on October 5, 2013. It would be the Ministry’s evidence that the position of Rehabilitation Officer (Position # 00021080) at the Toronto East Detention Centre was filled on January 20, 2014 and continues to be required. The union does not have evidence to the contrary. c. Bonnie Dreger applied for TEI on April 8, 2014 and she retired on June 1, 2016. It would be the Ministry’s evidence that the position of P&P Administrative Support Clerk (Position #00026681) at the Sudbury P&P office was filled on June 13, 2016 and continues to be required. The union does not have evidence to the contrary. d. Sherry Loiselle applied for TEI on January 18, 2015 and retired on December 1, 2016. It would be the Ministry’s evidence that the position of Personnel Clerk (Position # 00026588) at the Sudbury Jail was filled on December 1, 2016 and continues to be required. It would also be the Ministry’s evidence that Superintendent John Cole supported the application but did not formally approve any - 5 - employee’s application for TEI and had no authority in the decision- making process. The union does not have evidence to the contrary. e. Jane O’Regan applied for TEI on September 9, 2013 and retired on January 1, 2015. It would be the Ministry’s evidence that the position of Health Care Clerk (Position # 00025370) at Elgin- Middlesex Detention Centre was filled on March 23, 2015 and continues to be required. The union does not have evidence to the contrary. Appendix 46 [6] The relevant provisions of Appendix 46 are as follows: 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. - 6 - Analysis [7] I have now issued a number of decisions on the scope of the Employer’s discretion to allow or deny a request for TEI: Koeslag, issued January 12, 2016, Vadera, June 28, 2018, Kimmel , November 29, 2018, Anich, August 9, 2019, Klonowski et al, issued on November 7, 2019 and Fairley et al., issued on February 12, 2020. [8] As acknowledged by both the Union and the Employer, all of the current grievors are in substantially the same position as those recently considered in Fairley et al., where the grievances were dismissed: they applied for TEI, retired without their request having been granted and occupied positions that were filled upon their retirement. [9] The Union reiterated its earlier arguments that the TEI requests were not fairly processed or administered because the Employer had only considered the narrow issue of whether the position was still required or if they could reduce complement by eliminating the exiting employee’s position. The Union continued to take the position that management should have considered a broader range of factors in determining whether the Grievors’ exit would assist in the transformation of the OPS. [10] There was no suggestion by the Union that any of the TEI applications in this instance were denied as a result of bad faith or discrimination, or that other, more junior employees in the same workplace were granted TEI at the expense of the Grievors. - 7 - [11] As I have previously stated, while I continue to be sympathetic to the Union’s efforts on behalf of the Grievors, I have already found in Klonowski et al, supra, that: …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, supra. While recognising that there may have been a number of different approaches that the Employer could have adopted 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 the exercise of that discretion: Vadera, supra. The Employer has consistently taken the position that its vision of ‘transformation’ focussed squarely on downsizing their workforce. They have offered the TEI as a targeted inducement to encourage employees to voluntarily retire or resign, allowing the Employer to eliminate a position without the need to surplus other employees who wish to remain. In earlier cases, I have determined that the Employer is entitled to that stance: Kimmel, supra and Anich, supra. [12] The only fact pattern that was slightly different in this case pertains to Sherry Loiselle. Her TEI application was supported by the Superintendent at the institution where she worked before her retirement. That support, however, does not alter any of the material facts. Superintendent Cole had no authority to approve Ms. Loiselle’s application or that of any other employee. The ultimate decision was made at a more senior level and the Union had no evidence to dispute the reasons offered for the denial. In my view, the exercise of discretion by the Employer in - 8 - considering Ms. Loiselle’s request for TEI is similar in all relevant respects to the decisions made regarding the other grievors. [13] Having considered the evidence and the submissions before me, I can find no basis to distinguish these grievances from those that I have already dismissed. In these circumstances, I continue to find that the Employer properly exercised its discretion. The grievances are dismissed. Dated at Toronto, Ontario this 2nd day of March, 2020. “Reva Devins” Reva Devins, Arbitrator