GSB# 2003-2617

UNION# 2003-0247-0005

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Murray)

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

Stephen Giles Grievance Officer Ontario Public Service Employees Union

FOR THE EMPLOYER

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

HEARING

May 24, 2006.

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.

On July 15, 2000, Mr. James Murray filed a grievance that alleged his Employer improperly “removed” him from employment. Prior to this, the grievor was an unclassified Correctional Officer at the Hamilton-Wentworth Detention Centre. On June 7, 2001 a Memorandum of Settlement was signed that provided the grievor with “an unclassified contract of employment at the Brantford Jail.” It was further agreed that “upon closure of the Brantford Jail” the grievor’s contract would be transferred to HWDC subject to performance.

On October 4, 2003 Mr. Murray filed a grievance that stated:

I grieve that due to my previous and unjust termination of employment at the Hamilton-Wentworth Detention Centre, that I have been overlooked, and reprised against for rollover into full-time classified status. Had I not been unjustly terminated I would still be employed at the HWDC and would have been rolled over as many casuals junior to myself in seniority have

Secondly, there was a competition at the HWDC to which I was denied in my application to apply due to the fact that I am now working at the Brantford Jail, yet another officer working here at the Brantford Jail (Mr. Steve Ward), was allowed to apply.

For settlement I would like to be given a full-time position (either filling a vacancy or having a new one created) here at the Brantford Jail as it is quite apparent that I will never be treated without discrimination at the HWDC. Secondly, I would like back pay for all the weeks that I did not receive my forty hours and would have had I been made full-time when I should have.

I am of the view that this grievance must fail. The grievor entered into a Memorandum of Settlement restoring him to unclassified Correctional Officer status. It was clearly agreed that he would perform this work at Brantford Jail and would only transfer to the HWDC “upon closure” of Brantford Jail assuming that his intervening performance was acceptable.

Like many other Memoranda, there was a provision in the settlement document that made very clear that the agreement was “full and final”. Further, he agreed that he had been “fully informed” of the “consequences of this settlement”.

This appears to be an instance where, some considerable time after the resolution of his grievance, Mr. Murray decided that he made a bad deal. He appears to be of this view because had he returned to HWDC he might have been rolled over.

It is trite but true that, simply put, a deal is a deal. What would become of the system of resolving disputes in the Ontario Public Service if individuals (on both sides) were allowed to withdraw their agreement months or years after matters settle? Labour relations chaos would prevail. In the instant matter, the grievor cannot revisit this settlement months after it was executed because circumstances unfolded in a manner that is not to his liking.

For those reasons, the grievance fails.

Dated in Toronto, this 27^th day of June 2006.