HomeMy WebLinkAbout2008-4015.Silva et al.22-06-14 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# 2008-4015; 2010-1662; 2009-0493; 2009-0494
UNION# 2009-0248-0002; 2010-0708-0003; 2009-0252-0024; 2009-0252-0025
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Silva et al) Union
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE
Ken Petryshen
Arbitrator
FOR THE UNION
Christopher Bryden
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER George Parris
Treasury Board Secretariat
Legal Services Branch
Counsel
SUBMISSIONS May 11, 2021
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DECISION
[1] The parties have agreed to a process for addressing a considerable
number of grievances in which employees have claimed entitlement to the Custodial
Responsibility Allowance (“CRA”). In decisions dated March 9, 2011, and May 28,
2021, I decided the merits of some CRA grievances. The parties agreed to place the
majority of the remaining CRA grievances into 5 groupings and they have completed the
process for addressing these grievances. This decision will address the four grievances
which claim entitlement to the CRA that are in the first of the 5 groupings. I will address
each grouping of CRA grievances in a separate decision.
[2] The process for addressing the grievances in each of the 5 groupings can be
summarized as follows. The Union filed particulars setting out the duties and
responsibilities of the employees in each grouping and Union counsel provided written
submissions to establish that a prima facie case for entitlement had been made out in
each instance. This was followed by written submissions from Employer counsel and
written reply submissions from Union counsel. It was assumed that the particulars filed
by the Union to support its best case accurately reflected the duties and responsibilities
of each employee. It was then left for the Board to decide in each instance whether a
prima facie case had been made out for entitlement to the CRA. Employer objections to
any of the CRA grievances were set aside until this process was completed.
[3] In the earlier CRA decisions, I referred to the relevant case law and set out
the parties submissions in some detail. I find it unnecessary to approach these
subsequent decisions in the same way. With the remaining grievances, I propose to
merely focus on the essential question at issue, namely whether the particulars supplied
by the Union are sufficient to support a prima facie case of entitlement to the CRA.
[4] The details of the four grievances in this grouping are as follows. All of the
grievances were filed by employees who worked as Temporary Absence Pass (“TAP”)
Coordinators. Ms. M. Silva worked at the Hamilton Wentworth Detention Centre when
she filed her grievance dated February 4, 2009. Ms. P. Taddeo was employed at the
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Thunder Bay Correctional Centre when she filed her grievance dated March 4, 2010.
Ms. B. Heinrich worked at the Niagara Detention Centre when she filed her grievance
dated April 23, 2009. Ms. M. Gifford also worked at the Niagara Detention Centre and
also filed her grievance on April 23, 2009.
[5] The CRA provision has been a feature of the Collective Agreement since at
least 1984. The conditions for entitlement to the CRA are now set out in Appendix
COR2 of the Collective Agreement for the Correctional Bargaining Unit. This Appendix
provides that employees in designated Ministries are entitled to the CRA if they fulfill all
of the following requirements:
(a) they are not professional staff such as teachers, nurses, social workers or
psychologists;
(b) the positions to which the employees are assigned are not covered by
classes which already take into account responsibility for the control of
offenders or wards, such as Correctional Officers, Industrial Officers,
Supervisors of juveniles, Observation and Detention Home Workers,
Recreation Officers (Correctional Services), Trade Instructors and Provincial
Bailiffs;
(c) (i) they are required, for the major portion of their working time, to direct
offenders or wards engaged in beneficial labour;
or
(ii) as group leaders/lead hands, they are directly responsible, for a major
portion of their working time, for operations involving the control of a number
of offenders or wards engaged in beneficial labour; and
(d) they are responsible for the custody of offenders or wards in their charge and
are required to report on their conduct and lay charges where breaches of
institutional regulations occur.
[6] In their role as TAP Coordinators, the grievors screen and assess
applications from inmates for TAPs. Ms. Heinrich and Ms. Silva are also involved in
assessing and selecting inmates for Workboard duties. If selected, these inmates can
be assigned to work in such areas as the kitchen and laundry. Ms. Heinrich was also
involved in performing duties in relation to the Intermittent Community Work Program.
Her duties in this regard were similar to the Workboard duties she performed.
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[7] The duties of these grievors as set out in the particulars illustrate that the
grievors do not satisfy all of the conditions necessary for entitlement for the CRA. The
grievors do not direct inmates while they are engaged in beneficial labour for a major
portion of their working time as this condition was interpreted in the CRA decisions
dated March 9, 2011, and May 28, 2021. It also appears that the duties of the grievors
were very much inmate focused such that they were in positions that already took into
account responsibility for the control of inmates.
[8] Paragraphs 11, 12 and 13 in the decision dated May 28, 2021 deal with TAP
Coordinators who filed grievances claiming entitlement to the CRA. Their grievances
were dismissed. The duties that they performed were essentially the same as those
performed by the grievors in this case.
[9] A prima facie case for entitlement to the CRA has not been made out for the
grievors. Accordingly, the grievances referenced in paragraph 4 of this decision are
hereby dismissed.
Dated at Toronto, Ontario this 14th day of June, 2022.
“Ken Petryshen”
______________________
Ken Petryshen, Arbitrator