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HomeMy WebLinkAbout2020-0566.O'Brien.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# 2020-0566 UNION# 2020-0368-0085 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’Brien) 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] Michael O’Brien is a Correctional Officer at the Central East Correctional Centre who filed a grievance on March 17, 2020 claiming that the Employer has violated Articles 2, 18, Appendix 24 and Appendix COR19 by incorrectly calculating his Continuous Service Date (“CSD”). [8] In particular, Mr. O’Brien claims that seniority calculation under the old system, that is to say previous collective agreements, meant that when his CSD was calculated in August -3- 2003, his 8 years and 5 months as an unclassified CO between March 6, 1995 and August 10, 2003 was calculated using only 40 hour work weeks. In the latest collective agreement between the parties, they have agreed that all straight time hours worked by fixed term COs will be totalled, and then divided by 40 to determine the number of weeks of work that will be used to determine a CSD. [9] Mr. O’Brien also claims that he has suffered age discrimination because he is not getting the benefit of the new calculation method, so that his time worked at Millbrook Correctional Centre and the Central East Correctional Centre are not being re- calculated. By way of remedy, the Grievor seeks to have his CSD changed based on the current collective agreement method of calculation, and that he be reimbursed for all lost monies, benefits, vacation and lieu days. [10] 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 current collective agreement to suggest that the parties negotiated the change in the method of calculation of a CSD would be retroactive at all, let alone to 1995 or even 2003. At the time that the Grievor’s CSD was calculated, it was done in accordance with the terms of the collective agreement in place at the time. Unless parties specifically agree otherwise when negotiating a new collective agreement, the new terms agreed upon have no retroactive effect. With respect to the calculation of a CSD, there was no provision for retroactivity. As such, there is no basis for Mr. O’Brien’s claim. [11] I also note that while the Grievor has claimed a breach of Appendix 24, that particular appendix was deleted on April 1, 2019, and there is no such appendix in the current collective agreement. [12] There is also no basis at all for the Grievor’s claim of age discrimination. There is no evidence before me about Mr. O’Brien’s age, but in any event, the parties did not negotiate a provision in order to discriminate on the basis of age: they simply agreed on a method of calculating seniority that is more advantageous than the method that was in place when the Grievor’s hours were calculated to reflect his CSD. [10] For the reasons outlined above, this grievance is dismissed. Dated at Toronto, Ontario this 30th day of September, 2020. “Gail Misra” _____________________ Gail Misra, Arbitrator