GSB# 2004-1970

UNION# 2004-0234-0487

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Gowan)

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

Lucy Neal Senior Staff Relations Officer Ministry of Community Safety and Correctional Services

HEARING

June 8, 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.

Ms. Irene Gowan is presently an unclassified Correctional Officer at the Vanier Centre for Women at Maplehurst. On November 19, 2001, when she was working at the Guelph Correctional Centre she wrote the following to her superintendent:

This letter is to advise you of my intention to retire in March 2002. I will have attained Factor 80 on March 26, 2002 and must give official notice within a 3 month frame.

If your institution remains operational and the option to work 3 months following March 26, 2002, I wish to do so.

Please advise me as to my next step in this early retirement process. I would appreciate it very much.

Note: If and when the Wellington Detention Centre deems me “surplus” I wish to consider the option of “Bridging”.

In accordance with those stated wishes the grievor was to retire on June 7, 2002. As the result of unforeseen personal reasons, on May 3, 2002 Ms. Gowan asked that she be allowed to continue with the Ministry and to have her retirement request rescinded. That request was denied in a June 3 2002 letter from Linda Elliot, Senior Transition Specialist, that stated, in part:

I am writing in response to your fax of May 30, 2002. In your letter you identified that you wished to rescind your previous election to take Surplus Factor 80 – March 26, 2002. When your position at Wellington Detention Centre was declared surplus you elected to take Factor 80 – March 26, 2002. As well, you wrote a letter to Ms. Diane Doherty on November 19, 2001 advising of your intent to retire in March 2002.

Temporary Assignments in the duration of three to six months are currently being offered to those Guelph Correctional Centre staff who have Appendix 18 rights and entitlements under the Collective Agreement. As outlined previously, the Guelph Correctional Centre is presently decommissioning. Currently, temporary assignments for GATU are not being accepted.

Your election at the time of surplus from the Wellington Detention Centre to take the option of Surplus – Factor 80 – March 26, 2002, is final and binding. You are now eligible to retire. This letter will confirm that your last day of work will be Friday June 7, 2002.

Almost two years later, on August 9, 2004 Ms. Gowan filed a grievance that “her employer has treated me with bias and prejudice with respect to my request to cancel my Factor 80 application.”

According to the documentation provided at the hearing I am convinced that the grievor was notified of her various options in a timely fashion. Ms. Gowan elected to retire after receiving all of the pertinent information.

The Employer reluctantly raised a preliminary objection with respect to timeliness. The grievance was filed more than two years after the grievor retired and therefore should not be considered on its merits by this Board. The Union was unable to provide any reasonable grounds for the delay and accordingly, I must uphold the Employer’s preliminary objection. While it is unfortunate that the grievor’s personal circumstances changed, and I am sensitive to those matters, I am unable to uphold the grievance.

The grievance is dismissed.

Dated in Toronto this 11th day of July, 2005.