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Home My WebLink About2008-3563.Roberts.09-06-05 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB#2008-3563 UNION#2008-0108-0161 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Roberts) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREFelicity D. Briggs Vice-Chair FOR THE UNIONStephen Giles Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYERGreg Gledhill Ministry of Community Safety and Correctional Services Staff Relations Officer HEARING October 31, 2008 and May 28, 2009. - 2 - Decision [1]In September of 1996 the Ministry of Correctional Services notified the Union and employees at a number of provincial correctional institutions that their facilities would be closed and/or restructured over the next few years. On June 6, 2000 and June 29, 2000 the Union filed policy and individual grievances that alleged various breaches of the Collective Agreement including Article 6 and Article 31.15 as well as grievances relating to the filling of Correctional Officer positions. In response to these grievances the parties entered into discussions and ultimately agreed upon two Memoranda of Settlement concerning the application of the collective agreement during the ?first phase of the Ministry?s transition?. One memorandum, dated May 3, 2000 (hereinafter referred to as ?MERC 1? (Ministry Employment Relations Committee)) outlined conditions for the correctional officers while the second, dated July 19, 2001 (hereinafter referred to as ?MERC 2?) provided for the non-correctional officer staff. Both agreements were subject to ratification by respective principles and settled all of the grievances identified in the related MERC appendices, filed up to that point in time. [2]While it was agreed in each case that the settlements were ?without prejudice or precedent to positions either the union or the employer may take on the same issues in future discussions?, the parties recognized that disputes might arise regarding the implementation of the memoranda. Accordingly, they agreed, at Part G, paragraph 8: The parties agree that they will request that Felicity Briggs, Vice Chair of the Grievance Settlement Board will be seized with resolving any disputes that arise from the implementation of this agreement. - 3 - [3]It is this agreement that provides me with the jurisdiction to resolve the outstanding matters. [4]Both MERC 1 and MERC 2 are lengthy and comprehensive documents that provide for the identification of vacancies and positions and the procedure for filling those positions as they become available throughout various phases of the restructuring. Given the complexity and size of the task of restructuring and decommissioning of institutions, it is not surprising that a number of grievances and disputes arose. This is another of the disputes that have arisen under the MERC Memorandum of Settlement. [5]When I was initially invited to hear theses transition disputes, the parties agreed that process to be followed for the determination of these matters would be virtually identical to that found in Article 22.16.2 which states: The mediator/arbitrator shall endeavour to assist the parties to settle the grievance by mediation. If the parties are unable to settle the grievance by mediation, the mediator/arbitrator shall determine the grievance by arbitration. When determining the grievance by arbitration, the mediator/arbitrator may limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate. The mediator/arbitrator shall give a succinct decision within five (5) days after completing proceedings, unless the parties agree otherwise. [6]The transition committee has dealt with dozens of grievances and complaints prior to the mediation/arbitration process. There have been many other grievances and issues raised before me that I have either assisted the parties to resolve or arbitrated.However, there are still a large number that have yet to be dealt with. It is because of the vast numbers of grievances that I have decided, in accordance with my jurisdiction to so determine, that grievances - 4 - are to be presented by way of each party presenting a statement of the facts with accompanying submissions. Notwithstanding that some grievors might wish to attend and provide oral evidence, to date, this process has been efficient and has allowed the parties to remain relatively current with disputes that arise from the continuing transition process. [7]Not surprisingly, in a few instances there has been some confusion about the certain facts or simply insufficient detail has been provided. On those occasions I have directed the parties to speak again with their principles to ascertain the facts or the rationale behind the particular outstanding matter. In each case this has been done to my satisfaction. [8]It is essential in this process to avoid accumulating a backlog of disputes. The task of resolving these issues in a timely fashion was, from the outset, a formidable one. With ongoing changes in Ministerial boundaries and other organizational alterations, the task has lately become larger, not smaller. It is for these reasons that the process I have outlined is appropriate in these circumstances. [9]Wayne Roberts is a Correctional Officer at Elgin Middlesex Detention Centre. His service with the Ontario Public Service began in August of 1989. Prior to entering the OPS Mr. Roberts worked for a number of years with the Ontario Provincial Police and hence he brought with him a number of years of pensionable earnings for the purposes of his pension. - 5 - [10]In late 2008 Mr. Roberts wanted to enter into a transitional job trade that would have him move to Sprucedale Youth Centre under the auspices of the Ministry of Children and Youth Services. If granted, such a cross Ministry transitional job transfer would have allowed him to be surplussed. He was unsuccessful in the venture because, according to the Employer, the single available transitional job trade position was appropriately awarded to an officer with more seniority. [11]It was the grievor?s contention that the Employer has improperly calculated his seniority. According to Mr. Roberts, his continuous service date should be adjusted to include his years with the Ontario Provincial Police. This consideration was made for the purposes of his pensionable earnings and, in his view, is therefore appropriate to include this time in the calculation of his CSD. [12]After consideration of the facts and submissions made in this matter I must dismiss the grievance. Article 10.3.9 of the Collective Agreement states: In the event more than one (1) employee meets the criteria to trade jobs with another employee, the Employer will chose the best qualified employee for the job to be traded. Where the qualifications and the skills of two (2) or more employees are relatively equal, seniority will be the determining factor, subject to Article 10.3.5 above. [13]There is nothing in the Collective Agreement or elsewhere that would allow for the inclusion of prior employment outside of the OPS in the continuous service date of employees. The grievance is denied. th Dated at Toronto this 5 day of June 2009. Felicity D. Briggs, Vice-Chair