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HomeMy WebLinkAbout2015-2388.Thurier et al.22-06-24 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# 2015-2388; 2018-2552 UNION# 2015-0708-0009; 2018-0229-0028 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Thurier 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 February 16, 2022 -2- DECISION [1] I have two grievances before me claiming entitlement to the Custodial Responsibility Allowance (“CRA”). One grievance is dated September 5, 2018, and was filed on behalf of Ms. Sandi Morrison, a Medical Clerk 3 at the Ontario Correctional Institute (“OCI”). The other grievance is dated August 27, 2015, and was filed on behalf of Mr. Jaret Thurier, a Groundskeeper at the Thunder Bay Correctional Centre. These grievances fall within the fifth grouping of outstanding CRA grievances. [2] The Union filed particulars setting out the duties and responsibilities of the grievors and Union counsel provided written submissions for the purpose of establishing a prima facie case for entitlement to the CRA. 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 reflect the duties and responsibilities of each grievor. The issue for determination is whether a prima facie case has been made out for entitlement to the CRA for Ms. Morrison and Mr. Thurier. [3] The CRA provision has been a feature of the Collective Agreement for many years. The grievors seek entitlement to the CRA pursuant to Appendix COR2 of the Collective Agreement for the Correctional Bargaining Unit. The 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 -3- (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. [4] I will first address the case involving Ms. Morrison. OCI is unlike other correctional institutions in that it is a rehabilitative facility in which offenders are not locked in cells all day. Offenders are free to circulate around the institution without the need for an escort or any direct supervision. Ms. Morrison’s Medical Clerk 3 position is classified at the 060AD level, which appears to be a lower level position. She is the only office administration staff member to work in the healthcare unit on the same floor as inmates while the rest of the office staff work upstairs where inmate access is prohibited. Her clerical duties include tasks such as sending/receiving faxes, coordinating with pharmacists, booking appointments, filing, creating medical charts, OTIS data entries, creating various documents and ensuring labs are completed. The Union’s particulars indicate that Ms. Morrison has certain atypical duties as a medical clerk that satisfies the conditions for entitlement to the CRA. [5] To meet the condition in (c) (i) of Appendix COR2, the Union referred in the particulars to the following duties performed by Ms. Morrison. To maintain the cleanliness of the healthcare unit, Ms. Morrison creates cleaning schedules for inmates to work around their program schedules and she then trains and supervises inmates when they complete their cleaning tasks. The cleaning tasks include mopping the floors, cleaning the windows surrounding the nursing station, cleaning the offices and sanitizing the equipment located in the offices. Ms. Morrison oversees the inmates while they complete these various tasks. [6] To meet the condition in (d) of Appendix COR2, the Union referred in the particulars to the following duties performed by Ms. Morrison. Ms. Morrison is responsible for the security of the healthcare unit and the supervision of inmates throughout the substantial majority of her shift. Access to the healthcare unit is -4- controlled by two physical buttons. One is located at the nursing station and the other is located in Ms. Morrison’s office. Since the nurses are usually busy attending to inmates, Ms. Morrison primarily controls the entry and exit of inmates so that she is consistently responsible for controlling the secure movement of inmates throughout her shift. There are no Correctional Officers (“COs”) present while Ms. Morrison is supervising the inmates. There can be up to one hundred inmates that come to the healthcare unit each day and while the inmates wait their turn, Ms. Morrison ensures the inmates are not talking and/or swearing, inmates remain waiting without anything in their pockets, inmates are not eating and in general inmates are behaving appropriately. She is required to report on the conduct of inmates through various ways. She frequently reports inappropriate behaviour to COs or unit managers, which may lead to tickets being handed out to inmates as a corrective measure. When significant incidents occur, they are reported to a shift supervisor or the security manager who then addresses the matter(s) via a misconduct. If the need arises, Ms. Morrison writes Occurrence Reports for inappropriate behaviour. Probation officers and clinical staff also check with her on a regular basis and she is responsible for reporting on the conduct of inmates relating to the performance of duties, monitoring offender treatment plans and vocational skills, etc. [7] The particulars do indicate that Ms. Morrison is engaged in directing inmates while they perform beneficial labour. In order to satisfy the condition in (c) (i), Ms. Morrison would have to direct inmates while they are engaged in beneficial labour for a major portion of her working time. While I appreciate the Union submits that she directs inmates for a major portion of her working time, the particulars do not indicate specifically that a major portion of Ms. Morrison’s working time is spent directing inmates engaged in beneficial labour. There is no indication in the particulars as to how much time the inmates spend on cleaning in the healthcare unit. Given her clerical and other duties as detailed in the particulars, it is difficult to see how Ms. Morrison could be engaged for a major portion of her working time in directing inmates while they performed beneficial labour. I therefore find that a significant feature of the requirements in (c) (i) has not been met. -5- [8] To satisfy the condition in (d), an employee must be responsible for the custody of offenders and is required not only to report on their conduct, but to lay charges where breaches of institutional regulations occur. I appreciate that Ms. Morrison has a lot of interaction with offenders and that the particulars indicate she supervises offenders and is responsible for the security of the healthcare unit. However, in my view, the particulars do not establish that Ms. Morrison has responsibility for the custody of offenders as intended by (d). It would be quite unusual that a Medical Clerk would have such responsibility. And although Ms. Morrison has reporting responsibilities with respect to inmates, there is no indication in the particulars that she is required to lay charges against inmates where breaches of institutional regulations occur. I therefore find that not all aspects in (d) have been met. [9] For the above reasons, I am satisfied that a prima facie case for entitlement to the CRA has not been established for Ms. Morrison. [10] As noted previously, Mr. Thurier was employed as a Groundskeeper at the Thunder Bay Correctional Centre when he filed his grievance claiming entitlement to the CRA. As part of the process for addressing outstanding CRA grievances, the parties have had occasion recently to deal with a claim for entitlement to the CRA by a Groundskeeper at a different institution. The Employer brought forward information in this recent matter which was not covered by the written submissions addressing Ms. Thurier’s grievance. It is evident to me therefore that the parties should have the opportunity to revisit Mr. Thurier’s grievance in light of the new information discovered by the Employer. Accordingly, Mr. Thurier’s grievance is referred back to the parties for further consideration. Dated at Toronto, Ontario this 24th day of June, 2022. “Ken Petryshen” ______________________ Ken Petryshen, Arbitrator