GSB# 2002-2100

UNION# 2002-0108-0048

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Finch)

Grievor

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

Scott Andrews Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

Greg Gledhill Staff Relations Officer Ministry of Community Safety and Correctional Services

HEARING

March 16, 2004.

Decision

In September of 1996 the Ministry of Correctional Services notified the Union and employees at a number of provincial correctional institutions that their facilities would be closed and/or restructured over the next few years. On June 6, 2000 and June 29, 2000 the Union filed policy and individual grievances that alleged various breaches of the collective agreement including article 6 and article 31.15 as well as grievances relating to the filling of correctional officer positions. In response to these grievances the parties entered into discussions and ultimately agreed upon two Memoranda of Settlement concerning the application of the collective agreement during the “first phase of the Ministry’s transition”. One memorandum, dated May 3, 2000 (hereinafter referred to as “MERC 1” (Ministry Employment Relations Committee)) outlined conditions for the correctional officers while the second, dated July 19, 2001 (hereinafter referred to as “MERC 2”) provided for the non-correctional officer staff. Both agreements were subject to ratification by respective principles and settled all of the grievances identified in the related MERC appendices, filed up to that point in time. The parties continued to negotiate and agree upon further conditions regarding the transition matters. MERC 3 was signed by the parties on February 25, 2002.

While it was agreed in each case that the settlements were “without prejudice or precedent to positions either the union or the employer may take on the same issues in future discussions”, the parties recognized that disputes might arise regarding the implementation of the memoranda. Accordingly, they agreed, at Part G, paragraph 8:

The parties agree that they will request that Felicity Briggs, Vice Chair of the Grievance Settlement Board will be seized with resolving any disputes that arise from the implementation of this agreement.

It is this agreement that provides me with the jurisdiction to resolve the outstanding matters.

Both MERC 1 and MERC 2 are lengthy and comprehensive documents that provide for the identification of vacancies and positions and the procedure for filling those positions as they become available throughout various phases of the restructuring. Given the complexity and size of the task of restructuring and decommissioning of institutions, it is not surprising that a number of grievances and disputes arose. This is another of the disputes that have arisen under the MERC Memorandum of Settlement.

When I was initially invited to hear theses transition disputes, the parties agreed that process to be followed for the determination of these matters would be virtually identical to that found in Article 22.16.2 which states:

The mediator/arbitrator shall endeavour to assist the parties to settle the grievance by mediation. If the parties are unable to settle the grievance by mediation, the mediator/arbitrator shall determine the grievance by arbitration. When determining the grievance by arbitration, the mediator/arbitrator may limit the nature and extent of the evidence and may impose such conditions as he or she considers appropriate. The mediator/arbitrator shall give a succinct decision within five (5) days after completing proceedings, unless the parties agree otherwise.

The transition committee has dealt with dozens of grievances and complaints prior to the mediation/arbitration process. There have been many other grievances and issues raised before me that I have either assisted the parties to resolve or arbitrated. However, there are still a large number that have yet to be dealt with. It is because of the vast numbers of grievances that I have decided, in accordance with my jurisdiction to so determine, that grievances are to be presented by way of each party presenting a statement of the facts with accompanying submissions. Notwithstanding that some grievors might wish to attend and provide oral evidence, to date, this process has been efficient and has allowed the parties to remain relatively current with disputes that arise from the continuing transition process.

Not surprisingly, in a few instances there has been some confusion about the certain facts or simply insufficient detail has been provided. On those occasions I have directed the parties to speak again with their principles to ascertain the facts or the rationale behind the particular outstanding matter. In each case this has been done to my satisfaction.

It is essential in this process to avoid accumulating a backlog of disputes. The task of resolving these issues in a timely fashion was, from the outset, a formidable one. With ongoing changes in Ministerial boundaries and other organizational alterations, the task has lately become larger, not smaller. It is for these reasons that the process I have outlined is appropriate in these circumstances.

Jane Finch was a Correctional Officer at Elgin Middlesex Detention Centre who filed a grievance alleging that she has been “constructively dismissed”. In her statement of the facts, the grievor alleged that she was forced to resign “under duress” and that management engaged in “a continuation of harassment and a significantly poisoned work environment”.

It was the grievor’s view that her superintendent “took advantage” of her by presenting her with a surplus package “knowing that no surpluses were to have taken place”. Ms. Finch alleged that the superintendent knew that there was “always” a position for her, suggesting that the possibility of surplusing was “just an employee number change”, or, in other words, merely an administrative exercise.

Ms. Finch said that she repeatedly asked if she elected to stay within the Ministry was it possible for her to remain at EMDC. She was also told that there were no vacancies and so there were no positions for her. She was told that any vacancies that were about to open were being held for other Correctional Officers from a closing facility. The grievor was of the view that all of this was merely a ruse to have her resign her employment.

According to the documentation before me, the grievor received a letter dated March 4, 2002, informing her that she was being displaced by a more senior employee, a Recreational Officer who was qualified to perform the duties of a Correctional Officer. As Ms. Finch was on sick leave at that time, she was not actually given notice of surplus until August 16, 2002 when she returned to work. In accordance with usual practice, she was informed of various options in that letter. Additionally there was a meeting on August 16, 2002 attended by the grievor wherein the various options were explained.

As agreed in the MERC 1 agreement, Correctional Officers from EMDC were entitled to go to positions at Bluewater in accordance with seniority. However, the grievor elected to remain an employee at EMDC.

The Union and the Employer agreed that at this time, it was unclear what the actual correctional officer complement would be at EMDC. Further, it was the practice of the transition advisors not to disclose potential vacancies until actual matches were achieved. They had determined that to do so might result in significant disruption to any employees who chose to take their chances on possible vacancies.

I asked the Union to speak with Mr. Mills and obtain his recall of this situation. According to the Union Mr. Mills said that he attended the meeting of August 16, 2003 with the grievor and spoke to Mr. Barry Scanlon shortly after the meeting on behalf of Ms. Finch. Mr. Scanlon relayed to Mr. Mills that as a correctional officer had very recently expired, a vacancy would probably arise. Mr. Mills said that he passed this information to Ms. Finch the same day.

A meeting was held on August 23, 2002 and during the course of this meeting Ms. Finch returns the letter electing to take a severance package. According to the grievor, immediately following this meeting she heard from a local union official, Gary Mills, that “a surplus was not supposed to have happened and instead it was merely an employee number change that was required as a position was available” for her at all relevant times.

In the statement of facts set out by Ms. Finch, it was alleged that she had been harassed and subject to a poisoned work environment dating back to the summer of 1999. That pattern of behavior continued throughout her employment and continued even after August 23, 2002.

After reviewing all of the evidence and the submissions I must dismiss the grievance. The grievor has alleged that she was “constructively dismissed” and that her termination was the culmination of harassment that had gone on for some considerable period of time. I disagree. The grievor was given notice of surplus in accordance with an agreed upon document that governs the decommissioning and restructuring of numerous facilities throughout the Province. The notice given, the meetings held and the information provided to this grievor was no more and no less than was provided to many other surplussed employees. She was not singled out nor was she treated differently regarding her surplus notice according to the evidence before me.

Ms. Finch seems to suggest that she was misled about vacancies and not given information about even possible vacancies until after she had submitted her agreement to sever her employment. This is not congruent with the other evidence before me. Even if Ms. Finch’s recall was accurate, she was told of a potential vacancy within an hour of her notice being given. She made no attempt to rescind the notice and she did not file a grievance in this regard until many weeks later.

For those reasons, the grievance is dismissed.

Dated in Toronto this 19^th day of July, 2004.