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GSB#2010-0167
UNION#2010-0369-0018
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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
(MacDonald)
## Union
- and -
The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Barry Stephens
Vice-Chair
FOR THE UNION
Scott Andrews, Tim Mulhall
Grievance Officers
Ontario Public Service Employees Union
FOR THE EMPLOYER
Karen Martin, Brian Scott
Ministry of Government Services
Employee Relations Division
Staff Relations Officer
HEARING
November 26, 2010.
Decision
[1] The parties have agreed to an Expedited Mediation-Arbitration Protocol. It is not necessary to reproduce the entire Protocol here. Suffice it to say that the parties have agreed to a “True Mediation-Arbitration” process, wherein each provides the Vice-Chair with submissions, which include the facts and authorities each relies upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, and is without prejudice or precedent.
[2] The grievance in this case relates to the grievor’s claim to opt out of escort training in accordance with the protocol negotiated between the parties on July 11, 2004. The Questions and Answers document related to that protocol, which is itself a jointly agreed document, stipulates that a “one-time opportunity” to opt out of mandatory escort training was available to all correctional officers who were “classified as of July 11, 2004”. The grievor argues that she should have this right, either as a result of the fact that she was a classified CO prior to July 11, 2004, or that it became retroactively applicable to her when CNCC was transferred to the jurisdiction of the OPS on November 9, 2006.
[3] The employer responds that the agreement between the parties governing the transfer of CNCC to the OPS, dated September 18, 2006, is silent on the one-time opportunity offered under the escort training protocol. The latter protocol language is clear, however, and states that the one-time opportunity was available only to employees who were classified Correctional Officers on July 11, 2004. On that date the grievor was not an employee of the OPS and clearly did not hold the position of a classified CO within the OPS. Moreover, although the grievor worked for the OPS in the past, she left the OPS prior to July 11, 2004 in order to take a position at CNCC when it was not part of the OPS. Her status as an OPS employee has no bearing on the fact that she was not a classified CO on July 11, 2004. Moreover, the employer argues, the required status was not conferred retroactively on the grievor by the transition agreement or otherwise.
[4] After reviewing the submissions of the parties and the collective agreement, it is my conclusion that the grievance should be dismissed.
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Dated at Toronto this 9th day of December 2010.
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minicounsel