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Home My WebLink About2020-1586.Thurston.2023-06-21 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# 2020-1586 UNION# 2020-0368-0156 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Thurston) 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, Labour Strategy & Employee Transition HEARING April 3 and June 20, 2023 - 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 - 3 - 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] Jeanette Thurston was working as a Fixed Term (FXT) Registered Practical Nurse (RPN) at the Central East Correctional Centre (CECC) when she filed a grievance dated July 30, 2020. Ms. Thurston alleges that the Employer knowingly completed a rollover in which it awarded a classified RPN position to an employee who had less years of service and hours worked. By way of remedy the grievor was seeking to have the hours corrected and to be awarded the full time RPN position. [8] Through a Memorandum of Agreement dated February 12, 2020 the Union and the CECC agreed to the rollover of one FXT RPN into the regular service. It appears that the Expression of Interest for this position was posted on June 1, 2020, with a closing date of June 15, 2020. Six individuals expressed their interest, and it appeared that the two most senior applicants were first Ms. Thurston, with 21,304.49 hours, and Kelly Hill, with 21,111.57 hours. [9] The RPNs’ accumulated hours had been made available for review by the staff on June 3, 2020. At that time staff were advised that the deadline to submit dispute - 4 - resolution forms was June 17, 2020. The notice also stated “Failure to pick-up hours or return dispute form within the time frame will confirm that you have accepted the hours as outlined by your employer”. The grievor maintains that as she was not at work at the time, she only received the list of hours by Purolator when there were two days left in which to file a dispute. In any event, the grievor did not file a dispute about her hours until July 17, 2020, four weeks after the deadline had passed. As such, her dispute form was extremely untimely. [10] Ms. Hill filed a timely dispute form about her hours, and as a result of a recalculation, her total hours were found to be 21,469.13, and therefore more than the grievor’s hours at that juncture. As such, through a Memorandum of Agreement between the Union and the CECC dated July 24, 2020, Ms. Hill was awarded the rollover into the regular service, effective July 27, 2020. [11] The grievor argues that she had been working at the CECC for about 16 years, since January 12, 2004, and that when she ultimately filed her dispute about her hours it was because her maternity leaves had not been included in her hours. At some later point her hours were corrected to give her credit for hours she was claiming, but it is clear that occurred after the successful applicant for the rollover had already been announced. [12] After this situation had arisen, in October 2020 the grievor applied for and was accepted into the Correctional Officer Training program, and began an unpaid six week leave of absence in order to complete that training. She passed the training and began working as a FXT CO at CECC in late 2020. In light of her significant - 5 - accumulation of hours, she has since rolled over into a regular CO position. Since the grievor is no longer interested in being rolled over into a RPN position, she now seeks as a remedy compensation for her costs incurred in order to take the six week CO training program, including her out of town costs as she had to move from her home in Lindsay to Hamilton for the training. [13] Having considered the evidence it is clear that the grievor filed her dispute of her hours very late. Furthermore, even if she only had two days left after her hours were sent to her, there is no evidence that Ms. Thurston at any point contacted the Employer to inform anyone of that problem nor that she needed more time to file her dispute. As Ms. Hill had filed a timely dispute of her hours, they were reviewed, and when it was clear that her hours exceeded Ms. Thurston’s, Ms. Hill, as the senior candidate was rolled over into the regular service. [14] The fact that Ms. Thurston later decided to take the CO training and become a CO is immaterial to this grievance. The remedy she is now seeking is completely unrelated to her grievance, arose much later in time, and there is no legal basis upon which it can be considered given the nature of the grievance which was about the awarding of the RPN position. [15] For the reasons outlined above, this grievance is dismissed. Dated at Toronto, Ontario this 21st day of June 2023. “Gail Misra” _________________ Gail Misra, Arbitrator