GSB#2009-2710, 2009-2711
UNION#2009-0521-0065, 2009-0521-0066
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IN THE MATTER OF AN ARBITRATION
Under
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THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
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Before
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THE GRIEVANCE SETTLEMENT BOARD
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BETWEEN
Ontario Public Service Employees Union
(Acheampong/Cornette)
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## 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
Tim Mulhall
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER
Greg Gledhill
Ministry of Government Services
Centre for Employee Relations
Staff Relations Advisor
HEARING
November 13, 2012, March 14 and
April 2, 2013.
## Decision
​[1]​ Since the spring of 2000 the parties have been meeting regularly to address matters of mutual interest which have arisen as the result of the Ministry of Community Safety and Correctional Services as well as the Ministry of Children and Youth Services restructuring initiatives around the Province. Through the MERC (Ministry Employment Relations Committee) a subcommittee was established to deal with issues arising from the transition process. The parties have negotiated a series of MERC agreements setting out the process for how organizational changes will unfold for Correctional and Youth Services staff and for non Correctional and non Youth Services staff.
​[2]​ The parties agreed that this Board would remain seized of all issues that arise through this process and it is this agreement that provides me the jurisdiction to resolve the outstanding matters.
​[3]​ Over the years as some institutions and/or youth centres decommissioned or reduced in size others were built or expanded. The parties have made efforts to identify vacancies and positions and the procedures for the filling of those positions as they become available.
​[4]​ The parties have also negotiated a number of agreements that provide for the "roll-over" of fixed term staff to regular (classified) employee status.
​[5]​ Hundreds of grievances have been filed as the result of the many changes that have taken place at provincial institutions. The transition subcommittee has, with the assistance of this Board, mediated numerous disputes. Others have come before this Board for disposition.
​[6]​ It was determined by this Board at the outset that the process for these disputes would be somewhat more expedient. To that end, grievances are presented by way of statements of fact and succinct submissions. On occasion clarification has been sought from grievors and institutional managers at the request of the Board. This process has served the parties well. The decisions are without prejudice but attempt to provide guidance for future disputes.
​[7]​ Godfrey Cornette and Agnes Acheampong both hold the position of Cook 2. In early 2008 the grievors competed for and obtained temporary positions as Cook 3 at the Mimico Correctional Centre.
​[8]​ On October 13, 2009 the grievors filed grievances that alleged the Employer violated the collective agreement by leaving vacant the permanent position of Cook 3. In their grievances they asked to be reclassified to the Cook 3 position because they had been doing the work for years.
​[9]​ Both grievors resolved these grievances with the Employer and signed identical Memoranda of Agreement on March 11, 2010. Those agreements stated:
In the event that the Business case for the Cook 3 position is approved and the grievor are appointed into the Cook 3 position the grievors and the union agree to withdraw the grievances.
In the event that the grievors are not placed into the Cook 3 positions this memorandum of settlement is void and the parties will revisit the issue giving rise to the grievances.
​[10]​ The "Business Case" was submitted but not approved. Notwithstanding that both grievors had worked and received the pay of a Cook 3 for a considerable period of time each were notified in 2011 that they would be returned to their home positions of Cook 2 – Mimico Correctional Centre. It was from this position that they were surplussed.
​[11]​ Each was moved to Toronto Intermittent Centre as a Cook 2 and continues to work in that capacity. There are no Cook 3 positions at TIC and ironically, if they had been classified as Cook 3 at the time of their surplussing the subsequent move to TIC would probably not have occurred.
​[12]​ As set out in the Memorandum of Agreement, the original grievance is to be considered because the Business case was not approved.
​[13]​ The original grievances ask that the Employer be obliged to fill the vacant positions of Cook 3 and assign the grievors to that position. Simply put, there is nothing in the collective agreement that obliges the Employer to fill vacant positions.
​[14]​ Accordingly, the grievances are dismissed.
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Dated at Toronto this 18th day of April 2013.
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minicounsel