Ontario Public Service Employees Union (French) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2012 CanLII 29865

GSB#2010-1118

UNION#2010-0248-0007

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (French)

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 Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Greg Gledhill Ministry of Government Services Centre for Employee Relations Employee Relations Advisor

HEARING

November 21, 2011, January 9, March 12, 2012.

Decision

1In 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.

2While 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.

3It is this agreement that provides me with the jurisdiction to resolve the outstanding matters.

4Both 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.

5When 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.

6The 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.

7Not 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.

8It 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.

9Over a number of years the transition committee has faced various and continuing organizational changes within this Ministry and has worked tirelessly to attempt to reduce or at least significantly limit the impact on members of the bargaining unit. Recently further jail closures have been announced and the committee is making every effort to resolve disputes in a timely fashion.

10Chris French is an unclassified Correctional Officer at the Hamilton Wentworth Detention Centre who filed a grievance alleging that he was improperly bypassed when the Employer was "hiring for a full time position." He claimed that he was "next in line according to total hours" and that he was offered a full time position but that offer of hire was later rescinded. By way of remedy he seeks full time status.

11Mr. French began employment on June 25, 2007, as an unclassified Correctional Officer at the Thunder Bay Jail. He transferred to Hamilton Wentworth Detention Centre on October 1, 2007 and remained there, in that capacity until January 1, 2009 when he returned to Thunder Bay Jail.

12In his written request for a transfer back to the Thunder Bay Jail, the grievor requested to "transfer back" effective February 1, 2009 because of personal family matters. This request was granted.

13Within a few months, he requested a transfer back to Hamilton Wentworth Detention Centre and he returns to HWDC as of June 1, 2009.

14On November 23, 2009 the parties signed a MERC agreement regarding the rollover of unclassified Correctional Officers at thirty institutions. Certain terms and conditions were established for officers to meet in order to be eligible for rollover. Specifically it was said at paragraph 4:

To be eligible for a rollover as a result of this Memorandum of Agreement, in accordance with COR 9, a fixed-term Correctional Officer must have been employed at their current worksite for a period of one year from September 24, 2008. Otherwise, eligibility for rollover will be from the institution from which they transferred, providing the fixed term employee was at the previous institution for one year from September 24, 2008.

15According to the MERC agreement there were to be thirteen (13) rollovers at Hamilton Wentworth Detention Centre.

16Those rollovers took place and the grievor was not amongst the Officers that were classified.

17On April 29, 2010, an Expression of Interest for Classified Correctional Officer Opportunities was posted at HWDC. This document does not appear to be the result of a MERC agreement or any other agreement that was executed by the provincial parties. The first paragraph of that document stated:

In accordance with the OPSEU Collective Agreement, all fixed term (unclassified) Correctional Officers from the Hamilton Wentworth Detention Centre will be offered the opportunity to express their interest for roll-over opportunities into the Regular (Classified) Service at the Hamilton Wentworth Detention Centre. Please note: The number of rollovers at this worksite is 8.

18The "Area of Search" set out in the posting said:

This posting is open to fixed term (unclassified) Correctional Officers assigned to the Hamilton Wentworth Detention as of March 31, 2010 and have been employed at this institution for a period of one (1) year. Interested applicants must submit written correspondence indicating their interest in being considered for this opportunity by 4:30 p.m. on Friday May 7, 2010. Appendix 24 seniority up to and including March 31, 2010 will be used to determine the successful applicant(s).

19The grievor applied for a classified position as set out in this posting. On June 2, 2010 Mr. French was informed by his Scheduling Officer that he was successful. He was given a printed version of his new full time schedule. Approximately nine hours later he was contacted by the Deputy Superintendent and told that there had been an error and he was not being classified. He was told that this was because of the break in service he had when he transferred back to Thunder Bay thereby not meeting the criteria of a year at HWDC.

20Seventeen months later, the parties again negotiated a MERC agreement regarding rollovers. The Expression of Interest in this regard that was posted on October 28, 2011, made clear the posting was "in accordance with the Memorandum of Agreement dated October 14, 2011" and allowed for nine rollovers. The area of search was worded differently. This time it said:

This posting is open to fixed term (unclassified) Correctional Officers who have been employed and continued to be employed at the Hamilton-Wentworth Detention Centre for a period of one (1) year from October 14, 2011.

21The Employer said that the Roll-Overs that took place at HWDC took place over a period of time. When the young offender unit was decommissioned it was then retrofitted for adult female offenders. Not all of the 32 positions were filled at one time and there was no violation of the Collective Agreement or any MERC agreement in so doing.

22It was the grievor's view that the Employer could not rescind its offer of classified status made on June 2, 2010 and should be ordered to make the grievor whole including damages for the pain and suffering this situation has caused him and his family.

23It was the Union's contention that this is an instance where the individual institution posted and granted offers of classified status to fixed term employees that it had no right to make. To be clear, it was said that any rollovers of fixed term employees to classified status had to be taken to the MERC for approval. Its failure to go through that process was contrary to MERC agreements and all recent protocols. It was urged that the Board state that the Employer stepped outside the proper process and should be penalized by allowing this grievance.

24There are two issues for this Board to address. First, does the fact that an offer was made to the grievor, albeit in error, entitle Mr. French to classified status. The answer to this question is no. While I have much sympathy for the angst that this mistake must have caused the grievor, the Employer is entitled to make bona fide errors. There was no suggestion of bad faith in this regard and there is no evidence that would have me find this situation was anything other than an unfortunate mistake. For this Board to oblige the Employer to rollover this grievor because of a mistaken offer would be inappropriate. It is certainly fortunate that the Employer found and rectified the error within hours.

25The next question is the larger issue of whether the Employer violated the Collective Agreement or any other agreement when it posted its Expression of Interest on April 29, 2010. If not, was it entitled to establish restrictions in the "Area of Search" that were congruent with those found in previous MERC agreements.

26After consideration I am of the view that the Employer is right in this instance. I can appreciate the frustration that this situation has caused the grievor. However, I am of the view that there is no violation of the Collective Agreement or any MERC agreement and therefore the grievance is denied. Further, while it may seem harsh to the grievor that he was disentitled from Roll-Over due to his not being at either Thunder Bay Jail or HWDC for a full year at the time of Roll-Over, it is not contrary to any provision. Indeed, the condition of having to work at an institution for at least a year is a condition seen in many Roll-Over agreements.

27Again, I appreciate that it would be frustrating to have sufficient seniority to be included in the Roll-Over process but be disqualified due to failure to meet certain conditions. However, the establishment and implementation of those conditions are not contrary to any agreement.

28For those reasons, the grievance is denied.