GSB# 2003-2844

UNION# 2003-0582-0180

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Shipticki)

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

November 5, 2003.

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.

Ms. Theresa Shipticki was a Correctional Officer with the Toronto East Detention Centre. Due to downsizing of classified correctional officer positions at the TEDC the grievor was surplussed. Her last day of work was August 22, 2000. As was her right, she opted to exercise her rights under Article 20.02, that is, notice and pay in lieu.

She returned to work more than six months later on February 26, 2001 as an unclassified employee at the Toronto East Detention Centre. Ms. Shipticki has since filed a grievance that stated:

I grieve management has violated the May 22, 2003 MERC Agreement/Settlement in addition to, but not limited to Article 2, 18.3, 18.4, and 20.2.5 of the Collective Agreement, in that my continuous service date was not accurately reflected resulting in a miscalculation of hours causing me not to be considered for one of the classified positions.

By way of remedy she requested:

(1) To be made whole; (2) recovery of all lost seniority/recalculation of period of continuous service; (3) return of all lost wages and pension, if applicable, together with interest; (4) return of all lost vacation and lieu time, if applicable; (5) and any other remedy a mediator/arbitrator sees fit.

It was the grievor's contention that, in accordance with Article 20.2.5 of the Collective Agreement, when she was hired as an unclassified Correctional Officer, her continuous service date, for all purposes, should have been deemed to include both service up to the last day of active work and the accumulation of service after the date of her re-appointment.

Article 20.2.5 of the Collective Agreement states:

Where an employee who accepts pay in lieu of notice is re-appointed to a position in the Ontario Public Service after the originally projected lay-off date, and prior to the expiration of a further twenty-four (24) months, the employee will repay to the Ministry all monies, excluding tuition fees, received under Article 20.3 (Separation Allowance) or paragraph 4 of Appendix 9 (Employment Stability). The employee's continuous service date for all purposes except Articles 53 or 78 (Termination Payments), shall be deemed to include both service up to the last day of active work and the accumulation of service after the date of re-appointment. The new service date for purposes of termination of pay shall be the date on which the employee recommences work.

Ms. Shipticki also relied on Article 18.3 that states:

Where an employee has been released in accordance with Article 20 (Employment Stability) and rehired within 2 years, the period of absence shall not be computed in determining the length of continuous service. However, periods of continuous service before and after such absence shall be considered continuous and are included in determining the length of continuous service.

I have considered the submissions made on behalf of the grievor and I find that I must dismiss the grievance. In the MERC 1 Memorandum of Agreement, signed June 16, 2003, paragraph 6 states:

For the purposes of unclassified seniority calculation, seniority will be calculated in accordance with Appendix 24 back to the first break in employment, which is greater than thirteen (13) weeks.

In my view, the parties turned their minds to the calculation of unclassified seniority in circumstances identical to the instant case. It is evident from the MERC Agreement that, for purposes of rollover, unclassified seniority is to be calculated in accordance with Appendix 24, not Articles 18 or 20 of the Collective Agreement. Article 18 and 20 contemplate rights that apply to classified employees from the date of their appointment to the classified service. It does not provide rights for unclassified employees in their efforts to become classified.

Therefore, the grievance is denied.

Dated in Toronto this 30th day of August, 2004.