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HomeMy WebLinkAbout2019-0409.Morgan.20-10-05 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# 2019-0409 UNION# 2019-0719-0005 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Morgan) 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] Stewart Morgan is a Correctional Officer (“CO”) at the Kenora Jail. He filed a grievance on April 4, 2019 claiming that his Continuous Service Date (“CSD”) has been incorrectly calculated. In particular, the Grievor claims that while his CSD is currently listed as March 15, 2004, it should be 6.62 years earlier. Mr. Morgan claims that the Employer has not counted the 13 seasons that he worked at the Ministry of Natural Resources and Forestry (“MNRF”) as a Forest Fire Fighter. By way of remedy, the Grievor seeks to have all hours that he worked while at the MNRF as a seasonal worker added to his service in his current position as a CO, and for his CSD to be changed accordingly. -3- [8] The Grievor states that he was told that his time at the MNRF did not count because he had a break in service of greater than 13 weeks. Mr. Morgan disputes that assertion. He maintains that he was never separated from the MNRF, and he moved directly from his seasonal position to his position as a CO in 2003. For 13 seasons he had been recalled to the seasonal Forest Fire Fighter position, and had returned each year, until the Spring of 2004, when he declined recall. [9] In late July 2003 the Grievor had asked for and was granted a leave of absence from his MNRF position. On August 5, 2003 he began training to become a CO, and started working as a Fixed Term CO at the Kenora Jail on September 22, 2003. In April 2004 Mr. Morgan declined recall to the Forest Fire Fighter position as he was already working at the Ministry of the Solicitor General. [10] The Grievor states that there is another CO at the Kenora Jail who was a seasonal Parks employee in the OPS, on a contract somewhat similar to his own. The park in question closed every winter, but the individual returned to work every Spring when recalled. According to Mr. Morgan, that individual has had his time working as a seasonal Parks worker recognized for the purpose of his CSD. While the Grievor has provided this anecdotal information, it is of no assistance to me as my jurisdiction arises solely out of the collective agreement, and I must apply the terms of the collective agreement in my consideration of the facts before me. [11] Based on the established jurisprudence and the collective agreement, FXT seniority is calculated back to the beginning of an employee’s continuous service, or back to the first break in employment which is greater than 13 weeks, or back to a resignation. Article 18 addresses “Seniority (Length of Continuous Service) for FXT and Regular Part Time employees”. Under the collective agreement applicable when this grievance was filed, the calculation was based on the actual number of full-time weeks worked by a full-time FXT employee during his full-time employment back to the first break in employment which was greater than 13 weeks (See Art. 18.1.1 (b)). [12} Since the Grievor worked for the MNRF as a seasonal worker in 2003, and until July 2003; was at that time granted a leave of absence from his seasonal worker position; began his CO training shortly after on August 5, 2003; and started as a FXT CO on September 22, 2003, there was no break in his service of more than 13 weeks in that year. As such, and having reviewed the records, Mr. Morgan’s hours for the 2003 year, while he was a seasonal worker at the MNRF in that year, should be counted towards his CSD. For all previous years that he worked as a seasonal worker for the MNRF, he had breaks in service of greater than 13 weeks, so there is no basis in the collective agreement to count those seasons. -4- [13] Having considered the facts and the submissions of the parties, and for the reasons outlined above, this grievance is upheld, and the matter is remitted back to the parties to determine what the Grievor’s CSD should be. I will remain seized in the event that there are any disputes that arise out of this decision. Dated at Toronto, Ontario this 5th day of October, 2020. “Gail Misra” _____________________ Gail Misra, Arbitrator