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Home My WebLink About2021-0769.Wojewodka.2022-10-03 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#2021-0769 UNION#2021-5112-0117 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Wojewodka) 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 Unit HEARING March 7, 2022 and September 28, 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] Diane Wojewodka is a Records Clerk at the Toronto South Detention Centre (TSDC). On May 25, 2021, Ms. Wojewodka filed a grievance claiming breaches of Articles 2 and 8.6.3 of the collective agreement. In particular, the grievor claimed that in or about December 2017 she filled a temporary Rehabilitation Officer 2 (RO2) vacancy in the Rehabilitation Unit at the TSDC, and continued to do so for 41 months. However, she was denied a permanent position, which she claims was - 3 - contrary to Art. 8.6.3 of the collective agreement, and which should have entitled her to a permanent position after at least 18 months. As such, by way of remedy, the grievor seeks appointment to a permanent Rehabilitation Officer 2 position. [8] There is no dispute that the grievor had a temporary assignment to an RO2 position from December 2017 until she was returned to her home Records Clerk position on or about October 4, 2021. In or about November 2020 the Employer determined that a competition should be held for a permanent RO2 position. Although the grievor applied for that position, and was interviewed in February 2021, she was not successful. The position was ultimately filled in or about March 2021. As an Expression of Interest for another RO2 position was to occur in April 2021, pursuant to Art. 6.1.2.1, the Employer was permitted to do a “reach back”. However, as the grievor had not made the cut onto the reach back list from the original permanent position posting, she was not considered in the EOI process. She was ultimately returned to her home position as a Records Clerk on October 4, 2021. [9] Article 8.6.3 states as follows: Where a vacancy as described in Article 8.6.1 has been filled pursuant to Article 6 (Posting and Filling of Vacancies or New Positions) and the incumbent has filled the position for at least eighteen (18) months, the Employer may assign them to the position on a permanent basis provided that the position has cleared surplus and Article 6 (Posting and Filling of Vacancies or New Positions) does not apply. (Emphasis added) [10] Article 8.6.1 addresses temporary assignments to a position, such as the grievor had filled. The language of Art. 8.6.3 contains a number of provisos, one of which is that it is the Employer’s prerogative to fill a vacancy with an employee who has been in the temporary assignment for at least 18 months. Contrary the grievor’s view, an employee filling a temporary assignment for at least 18 months does not automatically get the job if the Employer decides that it needs to fill the position permanently. In this instance, the Employer chose not to assign the position to the grievor on a permanent basis in and after November 2020, and instead held a job posting process for the vacancy. Based on the language of the agreement, I cannot find that the grievor had a right to the RO2 position even though by November 2020 she had been in the temporary position for over 18 months. [11] As the facts indicate, the grievor was interviewed in the job competition, but did not make it onto the list of those who qualified for the position at that juncture. After having held a competition for a job posting, pursuant to Art. 6.1.2.1, when the Employer has a subsequent vacancy for the same position within 14 months of the - 4 - original posting, it may hire qualified candidates from the previous job posting. In this instance, the Employer did have another such vacancy, and in April 2021 it exercised its right under Art. 6.1.2.1 to “reach back” to the earlier competition as it was within the fourteen month window. However, since the grievor was not one of the qualified candidates in that competition, she could not be considered for the subsequent vacancy. [12] Having considered the submissions of the parties, and for the reasons outlined above, this grievance is hereby dismissed. Dated at Toronto, Ontario this 3rdh day of October 2022. “Gail Misra” _________________ Gail Misra, Arbitrator