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Home My WebLink About2013-1446.Union-Thompson et al.21-05-28 Decision Crown 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#2013-1446, 2013-1574, 2013-1696 UNION#2013-0999-0049, 2013-0999-0063, 2013-0999-0069 “ASF Appendix A” IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union-Thompson et al) Union - and - The Crown in Right of Ontario (Treasury Board Secretariat) Employer BEFORE Reva Devins Arbitrator FOR THE UNION Ed Holmes Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER George Parris Treasury Board Secretariat Legal Services Branch Counsel HEARING May 26, 2021 - 2 - Decision [1] These grievances are part of a series regarding the operation of the Transition Exit Initiative, (“TEI”), under Appendix 46 of the Collective Agreement. The parties agreed that the current matters should be determined in accordance with Article 22.16 of the Collective Agreement, with brief reasons for decision. [2] The parties provided an Agreed Statement of Fact that set out the particular circumstances that relate to each individual grievor and the Ministry’s response. Generally, these grievances were filed by eighteen grievors* in various positions with the Ministry of the Attorney General. Each grievor applied for TEI before they retired from the Ontario Public Service (“OPS”), however, their requests were not approved by the Employer. Appendix 46 [3] The relevant provisions of Appendix 46 are set out below. I have included the initial provision and noted where it was subsequently amended: 1. All regular, regular part-time and flexible part-time employees will be eligible to apply to a Transition Exit Initiative (TEI). 2. An employee may request in writing voluntary exit from employment with the OPS under the TEI, which request may be approved by the Employer in its discretion [amended to in its “sole” discretion, October 30, 2015]. The Employee’s request will be submitted to the Corporate Employer. The Employer’s approval shall be based on the following considerations: - 3 - i.At the time that an employee TEI request is being considered, the Employer has plans to reduce positions in the OPSEU bargaining unit; and ii.The Employer has determined in its discretion that the employee’s exit from employment supports the transformation of the Ontario Public Service. iii.The Employer will consider whether employees are on the TEI lists when making surplus decisions [added to revised Memorandum of Agreement, October 30, 2015]. 3. If there is more than one employee eligible to exit under the TEI, the determination of who will exit under the TEI shall be based on seniority. [or] If there is more than one employee eligible to exit under the TEI within the same workplace, the determination of who will exit under the TEI shall be based on seniority [amended, October 30, 2015]. Analysis [4] I have now issued series of decisions on the scope of the Employer’s discretion to allow or deny a request for TEI and concluded that: i. Appendix 46 confers a broad discretion on the Employer to determine whether granting a request for TEI would support its vision of transformation of the OPS: Koeslag et al., issued January 12, 2016; - 4 - ii. Despite this broad discretion, the ordinary principles for the proper exercise of discretion apply. Consequently, when the Employer considers requests for TEI, the decision cannot be based on irrelevant considerations or otherwise violate the principles set out in Re Kuyntjes, GSB #513/84 (Verity); Koeslag, supra. iii. While recognising that there may be a number of approaches that the Employer could adopt with respect to transformation of the public service, it remains in the Employer’s sole discretion to decide whether an ‘employee’s exit from employment supports transformation’ and, in so doing, to determine which factors are relevant to exercising their discretion: Vadera, issued June 28, 2018. iv. The Employer can offer the TEI as a targeted inducement to encourage employees to voluntarily retire or resign, allowing them to eliminate a position without the need to surplus other employees who wish to remain. However, the Employer is not required to approve all requests for TEI, even where there is evidence of change or transition. The Employer retains the discretion to determine when and how the TEI will be offered: Kimmel, issued November 29, 2018 and Anich, August 9, 2019. v. An identical outcome for many grievors does not automatically mean that the Employer improperly exercised their discretion by applying a blanket rule. Where the common denominator among grievors was a rational consideration that was reasonably related to achieving transformation, the discretion was properly exercised: Klonowski, issued November 7, 2019. - 5 - vi. Absent evidence of bad faith or discrimination, the approval of an earlier request for TEI, on its own, is not sufficient to establish an improper exercise of discretion: Koroscil, June 18, 2020. Similarly, the approval of subsequent requests does not warrant an automatic conclusion that the decision to deny an earlier request was arbitrary or unreasonable. Inevitably, timing matters. A different outcome may result from the timing of an employee’s request for TEI: Heath, March 3, 2021. [5] After careful consideration of the submissions made by the parties, I have applied the principles established in earlier cases to the facts that pertain to these grievors and determined that the Employer properly exercised its discretion when it considered their requests to exit under the TEI. [6] One grievor, Lynn Thompson, raised a further argument that has not been previously addressed. Ms. Thompson retired from the OPS in 2015 and her TEI was neither approved nor denied before she left. TEI was granted to a more junior, former colleague in 2019. The Union took the position on behalf of Ms. Thompson that her request for TEI has never been denied and is therefore still live. As such, the Union submitted that she was entitled to have her outstanding request approved as the more senior employee. [7] Unfortunately, I have determined that this argument cannot succeed: a TEI application does not survive the departure of an employee from the OPS. The foundation of Appendix 46 is that enhanced benefits are provided to an employee when their “exit from employment supports the transformation of the OPS”. An employee who severs their employment relationship is no longer an active - 6 - employee and, by definition, cannot exit again. In these circumstances, it is clear that Appendix 46 has no application. [8] The grievances are therefore dismissed. Dated at Toronto, Ontario this 28th day of May, 2021. “Reva Devins” Reva Devins, Arbitrator - 7 - ASF Appendix A: List of Grievors* 15 Bridge St. W., Belleville ON 1. Broekema, Patricia Court Reporter 1 2. Kerr, Deborah 08OAD Office Administration 08 3. Taylor, Christina Court Reporter 2 45 Main St. E., Hamilton ON 4. Mitchell, Anne 08OAD Office Administration 08 5. Thompson, Lynn 08OAD Office Administration 08 6. Rodrigues, Cidalia 08OAD Office Administration 08 7. Rutherford, Joy 08OAD Office Administration 08 123 Brodie St. N., Thunder Bay, ON 8. Daciw, Linda 08OAD Office Administration 08 9. Senecal, Diane 08OAD Office Administration 08 10. Honeysett, Norma 08OAD Office Administration 08 11. Johnson, Hanya 08OAD Office Administration 08 393 University Ave., Toronto ON 12. DeSouza, Sandra 08OAD Office Administration 08 13. Houston, Brigid 10OAD Office Administration 10 14. Sinclair, Isolyn 08OAD Office Administration 08 15. Taddeo, Michelle 10OAD Office Administration 10 16. Grant, Yvonne 08OAD Office Administration 08 17. Stephenson, Belgheis 08OAD Office Administration 08 18. Turkben, Sevcan 08OAD Office Administration 08