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HomeMy WebLinkAbout2019-1804.Gondosch.20-09-30 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# 2019-1804 UNION# 2019-5112-0213 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Gondosch) 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 Michelle LaButte Treasury Board Secretariat Employee Relations Advisor HEARING July 10 and September 28, 2020 (by videoconference) -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] Michael Gondosch is a Correctional Officer (“CO”) at the Toronto South Detention Centre (“TSDC”). He filed a grievance on September 17, 2019 claiming that contrary to various terms of the collective agreement, the Employer circumvented a long-standing process for rollovers by secretly converting certain Fixed Term (“FXT”) COs and bypassed the next eligible FXT CO, which appears to be referring to the Grievor himself. By way of remedy, the Grievor seeks to be immediately converted to permanent regular status as an employee and to be made whole. -3- [8] The Grievor appears to believe that on some unspecified date he was bypassed on a rollover based on having been a few hours short of qualifying. He further believes that had he been credited with certain hours retroactively, he would have qualified. This belief arises out of a set of circumstances flowing from a disciplinary issue which Mr. Gondosch had grieved on November 14, 2017. That grievance was mediated to a resolution on March 11, 2019. As a result of the Memorandum of Settlement, the Grievor was given 12 hours credit. It is as a result of that settlement that the Grievor believes that he would have qualified for a rollover that occurred at the unspecified time. [9] The MOS that resolved Mr. Gondosch’s disciplinary grievance did not have any retroactive effect, so the point at which the 12 hours would have been credited to the Grievor’s service would have been from the effective date of that settlement. The Grievor was credited with the requisite hours, and on January 29, 2020, Mr. Gondosch was part of a group of 49 COs who were rolled over as a result of a Memorandum of Agreement (“MOA”). [10] From a review of the January 29, 2020 rollover MOA, it is clear that even if the Grievor had been credited with 12 hours retroactively, those hours would have made no difference to his standing on the seniority list of FXT COs who were in line to fill vacancies at the TSDC. Mr. Gondosch was fifth on the list of those who were rolled over on January 29th. The individual directly above Mr. Gondosch on the list of accumulated hours had 6,666.75 hours, compared to the Grievor’s 6,388 hours, a difference of 278.75 hours. Looking at the person with the highest number of hours on the list of those who were rolled over on January 29th, that individual had 8,021 hours. As such, that individual had 1,633 hours more than the Grievor. As there were clearly four FXT COs ahead of the Grievor on the list, and since even the closest person to Mr. Gondosch had far more than 12 hours more than he did, it is difficult to see how the Grievor could have qualified for any earlier rollover. [11] In any event, there is no evidence to support a finding that there was a secret conversion of FXTs to permanent status and that the Grievor was intentionally bypassed. It seems apparent that at the time of the rollover previous to the filing of the grievance, the Grievor did not have enough hours to qualify for rollover when compared to the other FXT COs ahead of him who had obviously also not qualified before, and who had markedly more hours than he did. [12] Having considered the facts, and the submissions of the parties, and for the reasons outlined above, this grievance is dismissed. Dated at Toronto, Ontario this 30th day of September, 2020. “Gail Misra” _____________________ Gail Misra, Arbitrator