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Home My WebLink About2021-0256.Garrow et al.21-12-14 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2021-0256; 2021-2057 UNION# 2021-0719-0003; 2021-0719-0004 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Garrow et al) 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 Ministry of the Solicitor General Manager, Employee Transition HEARING October 4 and December 13, 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 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] Luke Garrow and James Parnell were Fixed Term (“FXT”) Correctional Officers (“CO”) at the Kenora Jail at the time that the matter complained of occurred in and around August and September 2020. Since then they have been rolled over to classified status. On April 30, 2021 Mr. Garrow filed a grievance claiming that the Employer had violated various articles of the collective agreement, some Memoranda of Agreement, the August 17, 2020 Expression of Interest (“August -3- 2020 EOI”), and the Workplace Discrimination and Harassment Policy. On May 1, 2021 Mr. Parnell filed a grievance making the same claims. [8] In particular, the grievors claim that the Employer attempted to circumvent their rights by insisting that an ineligible candidate be rolled over from FXT status to the classified service under the August 2020 EOI. Despite the Union’s efforts at the time, the grievors claim that the Employer maintained its position, with the result that 11 FXTs were impacted. They further claim that subsequent EOIs were placed on hold pending resolution of the issues regarding the August 2020 EOI, again having a negative impact on other FXTs, including the grievors, as they could not be rolled over. [9] The grievors note that in my decision in Ontario Public Service Employees Union (Union) and Ministry of the Solicitor General et al, GSB File No. 2020-2353, issued on March 23, 2021, I had found the particular candidate they are referring to ineligible for rollover at the time of the August 2020 EOI. They therefore claim that since the Employer had been wrong all along, that had breached their respective rights too as they could not be rolled over earlier as the entire EOI had to be put on hold pending the outcome of the Union grievance. They experienced delays of 7 to 9 months in their rollover to the classified service, which deprived them of various benefits, statutory holiday pay, parental and maternity leave, and other rights and privileges. As such, among other remedies, the grievors claim that they should be made whole and have their respective rollovers back-dated to September 1, 2020; reimbursement for the cost of benefits; in lieu benefits days for statutory holidays; vacation days; and that for both Messrs. Garrow and Parnell, they should receive parental leave top up monies owing to them from September 1, 2020 on. [10] The Union grievance that the grievors refer to was filed on December 7, 2020, and arose out of an unusual situation regarding temporary transfers of FXT contracts from one institution to another. The issue had not previously been decided by the Grievance Settlement Board. The parties addressed that grievance in as expeditious a manner as was possible in the circumstances, and the December 2020 grievance regarding the August 2020 EOI was heard and decided in a very short time, precisely because both the Union and the Employer were aware that the rollovers arising from the August 2020 EOI could not be confirmed until that grievance had been decided. As already noted, I issued a decision in that case on March 23, 2021, a little over three months after the grievance had been filed. It is worth noting that in the decision I did not find that one particular candidate was ineligible for rollover, but rather that anyone in those circumstances would be ineligible for rollover. [11] Numerous rollover exercises are run across the Province annually, almost all of which result in timely outcomes for all involved, especially for those who are found qualified to roll over into the classified service. It is unfortunate that the August 2020 EOI was one of the very few that did not. However, once the Union had raised its concerns regarding the Kenora Jail’s view of who the candidates for rollover should be; engaged in discussions with the Employer; and ultimately filed the Union -4- grievance in that regard, the issues raised by the grievance had to be addressed through litigation, which is a process that generally takes time. At the beginning of such litigation, it is unclear whether the Union or the Employer’s position will prevail. That only becomes clear once a decision is issued. [12] In respect of the August 2020 EOI, the Union ultimately was successful in the Union grievance. However, there was no finding in the decision that the Employer had acted in bad faith in its original assessment of the EOI in question: it had simply been wrong in its interpretation of the various relevant Memoranda of Understanding that were applicable regarding the eligibility criteria for rollover for a FXT CO who may transfer temporarily from their home institution to another institution. In such circumstances, unless one of the remedies awarded had been that every person affected by the August 2020 EOI issue should be awarded for all their respective losses, that is not an outcome that is available to individuals like the grievors. [13] While it is unfortunate that the grievors suffered some losses as a result of the August EOI remaining unresolved until late March 2021, that is simply the inevitable result of issues regarding that EOI being grieved and litigated. The grievors did however continue to receive pay in lieu of benefits during the entire period that they were still FXT COs. Having considered the facts and submissions of the parties, and for the reasons outlined above, these grievances are denied. Dated at Toronto, Ontario this 14th day of December, 2021. “Gail Misra” _________________________ Gail Misra, Arbitrator