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GSB# 2002-1119
UNION# 2002-0582-0033
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## 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)
## Union
- 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
Community Safety and Correctional Services
HEARING
May 3, 2005.
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.
The grievor, Ms. Shipticki filed a grievance on June 20, 2002, alleging violations of various provisions of the collective agreement. She was surplussed and, because she agreed to take a package, her last day of work at the Toronto East Detention Centre was August 22, 2000.
On December 11, 2000 she wrote to the Employer and sought to be re-hired. In her letter of application she stated:
Further to our telephone conversation of December 6, 2000, I am writing this letter in response to your request.
During our talk I made you aware of a conversation I’d had with Mr. Carl DeGrandis, former Superintendent of the Toronto East Detention Centre. I had informed Mr. DeGrandis of my desire to rejoin the staff as an Unclassified Correctional Officer effective February 22, 2001, (that being the end of the 6 months for which I received pay in lieu of notice. Mr. DeGrandis confirmed that this option was available to me subject to my compliance with Ministry and Government regulations regarding my re-employment. Enclosed please find a copy of a September 6, 2000 memorandum received from Mr. DeGrandis which I trust is self-explanatory. As you have since replaced Mr. DeGrandis as Superintendent, I am now contacting you to ascertain if this option remains open to me.
If this option to rejoin the staff as an Unclassified Correctional Officer remains available to me, I wish to confirm that I am ready, willing and able to resume my duties effective February 22, 2001. Should you have any questions or require additional information, please do not hesitate to contact the undersigned at the above noted address and/or phone number. I appreciate your attention to this matter and await your response.
On January 31, 2001, the grievor was offered, in writing, the opportunity to rejoin the Ministry as an unclassified Correctional Officer. In that letter Ms. Shipticki was offered an initial contract and the rate of pay was set out. Additionally, she was instructed that if she chose to accept the contract she was to report to work on February 26, 2001 at the Toronto East Detention Centre. In response to that offer the grievor wrote on February 6, 2001, in part:
In response to your letter of January 31, 2001 received by me on February 1, 2001, I wish to respond as follows:
On February 5, 2001, I spoke with OM16 J. Duncan and confirmed that I will be reporting to him at 07:00 hours on February 26, 2001 to commence institutional re-orientation.
minicounsel