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HomeMy WebLinkAbout2002-0227.Cosulich.21-03-23 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# 2002-0227 UNION# 2001-0234-0016 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Cosulich) 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 September 28, 2020, February 18 and March 19, 2021 -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] Don Cosulich was a Correctional Officer (“CO”) at the Maplehurst Correctional Complex (“Maplehurst”) when he filed a grievance on July 16, 2001 claiming that his Continuous Service Date (“CSD”) has been incorrectly calculated. By way of remedy, the Grievor sought to have his hours recalculated, his CSD changed, and all monies owed as a result of the miscalculation. [8] As is obvious from the date of the filing of this grievance, it has been outstanding for a very long time. Since then, much has happened as a result of the Employer’s having miscalculated Mr. Cosulich’s CSD, and in fact the grievor has now retired effective December 2020. At the time, the grievor contended that his CSD should have been January 16, 1995. -3- [9] By a letter dated January 18, 2002 the grievor was advised that he had been declared surplus at Maplehurst. He believed that if his CSD had been recalculated, he would not be on the surplus list. In a letter dated February 8, 2002 to the Regional Director for Adult Institutions, Central Region, the Grievor noted that had his CSD been recalculated, he would not have been negatively affected when there was a redeployment of COs from Maplehurst to other institutions as the decision of who was moved was based on seniority. According to the Union, some of those Maplehurst COs were assigned to the Toronto West Detention Centre (“TWDC”) and others to the Ontario Correctional Institute (“OCI”). The grievor was assigned to the TWDC and was told to start there on June 24, 2002. It is noteworthy that the grievor was on the dividing line between those who were reassigned and those who were able to stay at Maplehurst. He was the last name on the list of those who had to transfer to other institutions. [10] The grievor went to some effort to raise his concerns with the Employer about having been moved, but to no avail. In addition, despite his raising the status of the 2001 grievance with the Union in 2005, it appears that it continued to languish. When the TWDC closed, the grievor was moved to the Toronto South Detention Centre. [11] The grievor asked for lateral transfers to get back to Milton. In December 2017 he was able to get a temporary assignment to the Vanier Centre for Women (“Vanier”), and effective July 30, 2018, he was granted a lateral transfer to Vanier. [12] In the meantime, this grievance had been advanced at the MERC Transition Committee. It would appear that in May 2017 the Employer had been working on determining the grievor’s claim that his CSD was incorrectly calculated. At that juncture it appears to have calculated that the grievor should have had 332 weeks counted in total, which would have put his CSD at January 13, 1995. It is worth noting that is very close to what the grievor himself had believed that his CSD should have been – January 16, 1995. [13] This grievance was addressed on April 3, 2018 before Arbitrator Felicity Briggs. The parties had again reviewed Mr. Cosulich’s CSD and determined in principle that he should have had 335 weeks of service counted, making his CSD tentatively December 26, 1994. However, as the Union advised the grievor in May 2018, the issue of damages for having been incorrectly surplussed to the TWDC/TSDC had not been resolved. The main issue was that as a result of the incorrect surplussing, the grievor had to travel from his home in the Milton area, which had been a few minutes’ drive from Maplehurst, to the TWDC (and later to the TSDC) in Toronto. Thus at issue were both kilometrage and time credits for the travel involved as the grievor had to travel 35.5 km. more in order to get to the TWDC, and it took him 30 minutes longer to drive one way to Toronto. [14] The Union has prepared a detailed calculation of the grievor’s losses based on the various collective agreements in place from the time of the grievor’s redeployment in 2002 until he was able to get back to the Milton area at the end of 2017. It also reduced the claims based on periods that the grievor had taken approved leaves of absence. Based on its calculations, it is claiming $125,852.23 as the grievor’s losses. -4- [15] The Employer maintains that since it took about 15 years for this grievance to come to the MERC Transition table, it has been disadvantaged by the delay. It believes that the grievance was first raised officially in April 2018. [16] The Union states that it has been in active discussion with the Employer since around 2016, when in the course of the med-arb process at Maplehurst this grievance was identified as one that should be handled at the MERC Transition Committee. It further argues that it was only more recently that the Employer has raised any concern about delay. It notes that it received information about this grievor from Greg Gledhill, copied to Al Quinn, (both Employer representatives) on May 16, 2017, which proves that the parties were in discussion about this before April 2018. Furthermore, the Union submits that timeliness was not raised before Arbitrator Briggs when this matter was first addressed formally in April 2018. [17] The Employer also argues that the grievor did not make enough attempts to mitigate his losses during the period in question as he did not seek a lateral transfer to Maplehurst or Vanier until 2013. It notes that while Mr. Cosulich applied for a lateral transfer on April 13, 2013, he let it lapse one year later in April 2014. He then applied for another lateral transfer on October 27, 2017, and was temporarily assigned to Vanier on December 8, 2018. As noted earlier, that assignment was made permanent on July 30, 2019. [18] Based on the facts and submissions of the parties, it is clear that had the grievor’s CSD been recalculated in 2001, when this grievance was filed, or even at the time that the grievor was begging the Employer to do so before the re-deployment of COs from Maplehurst, this issue would not have arisen, and the grievor would not have been moved in 2002. I am satisfied that Mr. Cosulich tried in the early years to get the matter resolved in his favour. There is nothing before me to explain why this grievance took so long to be addressed, nor why Mr. Cosulich himself did not seek a lateral transfer back to Milton earlier. Nonetheless, I accept that by 2013 the grievor had decided that trying for a lateral transfer may be his only way of getting back to the Milton area, and eventually he was able to get such a transfer in December 2018. [19] I also accept that the Employer did not raise the timeliness issue at or before this issue was first argued before Arbitrator Briggs. It had taken fresh steps to try to resolve the CSD issue, and in fact the parties had reached an understanding of what that should be. The only issue that appears to have remained unresolved at that point was that of the damages owing to the grievor as a result of the incorrect CSD having been used to assign him to TWDC in 2002. [20] This is a case where there is no way in which, almost twenty years later, it is possible to correct the situation that occurred. At this juncture, the CSD is of no use to the grievor since he has retired. However, in my view this is a case which calls for a damages award to recognize the significant disruption that the grievor suffered by having to leave his preferred workplace when the proper exercise of seniority would have let him remain at Maplehurst, which was close to his home. There is no explanation for why, when Mr. Cosulich was raising his concern about his CSD before the reassignment occurred, the Employer did nothing, especially in light of the fact that he advised them that he had filed a grievance in July 2001 about this issue. -5- [21] I recognize that the grievor could have sought a lateral transfer earlier, and therefore attempted to mitigate his losses. That would not however have changed the fact that for some years the grievor had to accept what in retrospect was an incorrect reassignment because of the Employer’s faulty calculation of this grievor’s CSD. I therefore award the grievor $10,000 in general damages, and direct the Employer to make the payment to the grievor forthwith. [22] I will remain seized in the event that there are any disputes that arise out of this decision. Dated at Toronto, Ontario this 23rd day of March, 2021. “Gail Misra” _____________________ Gail Misra, Arbitrator