GSB# 2003-2703
UNION# 2003-0252-0045
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Warden)
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.
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.
Mr. Blaine Warden is a Correctional Officer with the Niagara Detention Centre. He filed a grievance that resulted in a Memorandum of Settlement between the parties. He alleges that the Employer has not complied with the terms and provision of the agreement. Article 4 of the Memorandum of Settlement stated:
The employer agrees to pension bridge Mr. Warden by way of the following amounts.:
six (6) months pay in lieu of notice being used to reach Factor 80 date of September 1, 2003.
Any credits owing to Mr. Warden will be used to take him to the date of September 30, 2003. Any remaining credits will be paid out to the employee.
Legislated severance pay under Article 53 of the OPSEU Collective Agreement will then be paid to the employee.
Effective September 30, 2003 Mr. Warden will be eligible to receive pension monies from the Ontario Public Service.
It was Mr. Warden’s position that the Employer failed to pay him properly. He was paid five and a half months of pay in lieu of notice and not six months. He asked for the final two weeks pay plus a further two weeks as a penalty for the violation.
It was the Employer’s view that the agreement was paid in full. Article 4.1 obliged the Employer to bridge to the grievor’s pension date using his six-month notice period. This was done in accordance with the agreement.
It was common ground between the parties that when the notice period is used to bridge for pension purposes if the full six months are not required, any remaining notice period is not paid out. There is nothing in this Memorandum of Settlement to suggest that there was to be a deviation from that usual practice. Further, the Employer complied with the provisions of Article 4 and utilized the grievor’s notice period “to reach Factor 80 date of September 1, 2003”. Accordingly, the grievance is dismissed.
Dated in Toronto this 5th day of April, 2004.