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HomeMy WebLinkAbout2020-0533.Hurd.22-03-09 Decision Crown 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#2020-0533 UNION#2020-0234-0082 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Hurd) 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 December 13, 2021 and March 7, 2022 - 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 the Solicitor General as well as the Ministry of Children, Community and Social Services restructuring initiatives around the Province. Through the MERC (Ministry Employee 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] At the time of the filing of this grievance on April 29, 2020 Jemar Hurd was a Fixed Term (“FXT”) Correctional Officer (“CO”) at the Maplehurst Correctional Complex. Since then the grievor has been rolled over to classified status. The grievance claims that the Employer has violated various provisions of the collective agreement because it had improperly calculated his hours when he expressed an interest in being rolled over into permanent status. The grievor further claims that - 3 - the Employer acknowledged that it had made an error which had caused the grievor not to be rolled over earlier. Therefore, by way of remedy, Mr. Hurd claims that he should be converted to permanent status with all applicable retroactive rights and entitlements. [8] Mr. Hurd was rolled over to permanent status in August 2020. He believes that had his hours been correctly calculated, he would have rolled over in March 2020. He therefore asserts that he experienced a delay of some months, which deprived him of various benefits and other rights and privileges that are accorded to classified employees. As such, the grievor is claiming that he should be made whole and have his rollover back-dated to March 2020 with reimbursement for what he would have been entitled to had he been converted to the status of a classified employee under the collective agreement. [9] According to the Employer, pursuant to the November 13, 2019 Memorandum of Understanding to initiate the rollover of 10 FXT COs into permanent positions, an Expression of Interest (“EOI”) was posted on January 8, 2020 and closed on January 22, 2020. The grievor applied for that EOI. He was not within the top ten FXT COs based on his total hours at that juncture. Mr. Hurd submitted a dispute at the time claiming that he should be credited with an additional 160 hours. As a result of his hours being re-evaluated, Mr. Hurd was credited with an additional 94 hours. However, that still put him 20 hours behind the 10th eligible individual on that EOI. [10] On February 19, 2019 Mr. Hurd had been exposed to an unknown substance while responding to a medical emergency. Although the doctor indicated that no treatment was required, and that the grievor could return to work the following day, the grievor was absent from work on February 20 and 21, 2019. Initially, in March 2019, the WSIB approved a loss of earnings claim, for some unspecified dates. However, on March 11, 2020 the WSIB clarified that loss of earnings had been denied for the two February dates as “there were no objective medical findings to support his inability to return to work on the dates for which he lost time”. As such, these were not dates for which the grievor could receive credit for hours. [11] In its review of the grievor’s hours in March 2020, the Employer also found that Mr. Hurd had been credited with too many hours. Although the grievor had taken vacation for the period of August 3 to 9, 2019, he had taken 68 hours over two weeks, not in a full week block. As such, only the 40 hour week should have been counted, rather than his total vacation time. In any event, what is clear from the recalculation of the grievor’s hours is that his hours remained behind those of the 10th person to qualify for rollover on the January 2020 EOI, and he did not therefore qualify at that time. - 4 - [12] On June 4, 2020 a Memorandum of Agreement was reached to initiate the next rollover of 9 FXT COs at Maplehurst. The EOI was posted on June 22, 2020, with a closing date of July 7, 2020. The grievor applied for this EOI, and he was rolled over effective August 24, 2020, at which time Mr. Hurd was the sixth of the nine COs who qualified for rollover. [13] It appears that in all the circumstances as outlined above, the grievor could not have qualified for rollover on the January 2020 EOI. In any event, Mr. Hurd was rolled over in August 2020, and there is no dispute that at that juncture his Continuous Service Date was properly set. [14] Having considered the facts and submissions of the parties, and for the reasons outlined above, this grievance is hereby dismissed. Dated at Toronto, Ontario this 9th day of March 2022. “Gail Misra” _________________ Gail Misra, Arbitrator