HomeMy WebLinkAbout2019-2121.Cheriakara.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# 2019-2121
UNION# 2019-5112-0231
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Cheriakara) 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 (now, the Ministry of Children, Community and Social
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] Joseph Cheriakara is a Correctional Officer at the Toronto South Detention Centre who
filed a grievance on October 28, 2019 claiming that the Employer has improperly noted
his start date as March 12, 2018. He seeks the rectification of his date of hire back to
when he first commenced working for the Ontario Public Service (“OPS”).
[8] According to the Grievor, he started working for the OPS as a Fixed Term (“FXT”) Food
Service Helper at the TSDC on April 7, 2015, and worked in that capacity until October
-3-
25, 2015. He was a FXT Cleaner 2 at the TSDC from October 26, 2015 to March 11,
2018. On March 12, 2018 he became a FXT Correctional Officer at TSDC. The Grievor
concedes that he was told that in order to take a job as a FXT Correctional Officer, he
would have to resign from his Cleaner position, and he did so.
[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 his 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.
[10] In this case, the Employer required the Grievor to make a decision as to which position
he wanted. Having made that decision, the Grievor resigned from his position as a
Cleaner 2, and there was therefore a break in his service before he 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 his continuous service up to that point to have
terminated, and he began anew as a fixed term CO. As such, I find that the date he was
hired as a fixed term CO is correct.
[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
simply an application of the terms of the collective agreement.
[12] For the reasons outlined above, this grievance is denied.
Dated at Toronto, Ontario this 30th day of September, 2020.
“Gail Misra”
_____________________
Gail Misra, Arbitrator