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Home My WebLink About2013-1446.Union-Johnston et al.22-04-22 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#2013-1446, 2013-1574, 2013-1696 UNION# 2013-0999-0049, 2013-0999-0063, 2013-0999-0069 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 – Johnston 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 April 11, 2022 - 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 Will Say Statements that set out the circumstances that relate to each grievor and the Ministry’s response. Generally, these grievances were filed by two grievors with Ministry of Community and Social Services: Kenneth Johnston, who held the position of Welfare Field Worker, and Gabriella Letterio, an Enforcement Services Officer. Both grievors applied for TEI before they retired from the Ontario Public Service (“OPS”). Mr. Johnston’s request was not approved before he retired, and he alleges information he obtained from the employer misrepresented the options available to him. He also alleges that the advice he received constituted discrimination based on age. Ms. Letterio was granted TEI, however, she alleges that her request was not approved in a timely manner. 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 - 3 - 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: 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 a series of decisions on the scope of the Employer’s discretion to allow or deny a request and concluded that: - 4 - 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. 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. - 5 - 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. 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. vii. A TEI application does not survive the departure of an employee from the OPS. Appendix 46 is not available to employees after they retire, or their employment relationship is severed. TEI provides enhanced benefits to an employee when the Employer determines that their “exit from employment supports the transformation of the OPS”. When an employee is no longer an active employee, by definition, they cannot exit again and Appendix 46 has no application: Thompson, issued May 28, 2021. - 6 - [5] In this instance, Mr. Johnston alleged that the Employer misrepresented information in a way that deprived him of an earlier opportunity to apply for TEI and discriminated against him because of age. He acknowledges that the correct information was provided to him within two months. Nonetheless, he says that he was initially told that salary continuance would not be available to him after he turned 65 years of age. The Employer denies this. The Employer’s further stated that no TEI’s were granted to Mr. Johnston’s colleagues in the relevant period, that is, after he made his enquiries and before he retired from the OPS. [6] The parties agree that Appendix 46 does not preclude employees from receiving their first 6 months of benefits under TEI as salary continuance. The explanatory notes on Appendix 46, which were widely available, confirm that employees who are 65 years or older can apply for TEI and elect salary continuance for the initial six month pay-in-lieu payment period. These were not new provisions when Mr. Johnston made his enquiries, and Human Resource professionals would be aware of these documents and the way TEI operated. [7] In these circumstances, while I accept that Mr. Johnston honestly believes that HR told him that salary continuance was not available in any form after he reached 65 years of age, I find it more likely that the information was misunderstood rather than misrepresented. Consequently, I do not need to consider what, if anything, might have flowed from a misrepresentation. In any event, I would note that there is no evidence that the misrepresentation affected the outcome in Mr. Johnston’s case. No TEI requests from similarly situated employees were approved before Mr. Johnston retired. - 7 - [8] Ms. Letterio was approved for TEI approximately a year after she submitted her request. She was led to believe that the process would be quick after advising management that she had a lucrative, but time sensitive offer for a position in the private sector. The grievor was aware of employees in other Ministries that were awarded TEI within weeks of their application, although the Union did not allege that the Employer granted TEI to a more junior employee in violation of paragraph 3 of Appendix 46. [9] The Employer stated that no applications for TEI were approved in Ms. Letterio’s office between the date that she applied and the date when her request was granted. It took the position that there was no agreement to respond by a specific date and that it made TEI decisions in accordance with the Employer’s business needs. [10] I appreciate the continued disappointment and frustration of long service employees who believe their applications could and should have been approved. TEI is clearly a significant benefit for retiring employees. Regrettably, as I have already determined, TEI is not a general retirement allowance provided to everyone who requests it. Nor is the Employer under an obligation to respond to an application for TEI within a specific time. [11] After careful consideration of the evidence and submissions of the parties, I have determined that the Employer properly exercised its discretion when it considered the grievors’ requests to exit under the TEI. - 8 - [12] The grievances are therefore dismissed. Dated at Toronto, Ontario this 22nd day of April 2022. “Reva Devins” Reva Devins, Arbitrator