GSB#2010-2652

UNION# 2010-0642-0042

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Roy)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Felicity Briggs

Vice-Chair

FOR THE UNION

Laura Josephson Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Caroline Markiewicz Ministry of Government Services Centre for Employee Relations Staff Relations Officer

SUBMISSIONS

December 19, 2012.

Decision

1At a recent med/arb session at Monteith Correctional Complex it was agreed that the grievance of Mr. Joel Roy would be put before the Board by way of written submissions. Both parties had an opportunity to set out the facts and make submissions. It was also agreed that this decision would be without prejudice or precedent.

2Mr. Roy is a classified Recreational Officer working at the Monteith Correctional Complex. In December of 2010 he filed a grievance that alleged the Employer violated the Collective Agreement and its own policies by failing to grant him a temporary assignment as a Correctional Officer.

3The Employer denied the grievance because it is of the view that the grievor cannot work as a Correctional Officer as the result of the passage of too much time since he has either worked as a Correctional Officer or since he was trained to work as a Correctional Officer.

4This is the second time that Mr. Roy has filed such a grievance. In January of 2000 he filed a similar grievance because he was concerned about his increased chances of surplus without Correctional Officer experience. At that time the grievor had been working as a Recreational Officer for approximately three years. That grievance was settled on the following basis:

You may enter into a Temporary Assignment as a Correctional Officer for a period of not less than six (6) months and not more than one (1) year upon a month notice to your Superintendent within a two (2) year period commencing February 17, 2000.

A review of your file shows that if you were surplus you would qualify under Article 20.4.1.5 for a position as a Correctional Officer based on your Continuous Service Date.

5The terms of this Memorandum were carried out. Shortly after this Memorandum was signed, the Superintendent was informed by the Central Recruitment Office that the grievor was "eligible to be considered for, or compete for an assignment for the position of Correctional Officer. This is based on the fact that Mr. Roy was originally hired as an unclassified Correctional Officer and based on date of hire would have completed the Central Recruitment process in place at the time and also due to the fact that Mr. Roy has completed all phases of the Probationary Correctional Officer Basic Training."

6Mr. Roy had another temporary assignment as a Correctional Officer from November of 2007 to June 2008. In the facts provided by the Union the grievor asserted that he was "ordered" to (and did) work as a CO for two days in August of 2009 due to staff shortages.

7According to the Union, the grievor has been given two reasons for denying the request for a temporary assignment. First, because he has been away from the work for two years and therefore has to be retrained. The second reason was because he was did not have escort training. It was further contended that the Employer provided incomplete or incorrect information about the grievor to the Correctional College and as a direct result of that faulty information it was determined that Mr. Roy needed further training. The Union urges that neither of these reasons are "adequate or valid" and therefore the Employer's denial of this temporary assignment is tantamount to bad faith.

8The Employer noted that at the outset of the grievance procedure, the grievor argued that he had a perpetual right to temporary assignments according to the Memorandum of Agreement signed in 2002. The Union conceded that this is not the case and withdrew this contention.

9The Employer argued that there is no provision of the Collective Agreement or any policy that has been violated and therefore this grievance must be denied. Any assignment to a temporary position is discretionary and the only restriction upon the Employer is that it cannot act in bad faith. In arriving at its decision the Employer took the following into account:

i. It has been twenty years since the grievor was trained as a Correctional Officer and for the majority of that time he has worked as a Recreational Officer;

ii. The grievor has worked largely as a Recreational Officer since 1998;

iii. Although the grievor was given a ten month temporary assignment as a Correctional Officer – he worked as a "cleaner boss" which does not require all of the skills normally exercised by a Correctional Officer.

iv. The Employer has an "established practice" to require Correctional Officers to retrain after being out of the position for two years. This practice in congruent with the Correctional Officer Rehire Policy.

v. The grievor has had none of the refresher training that Correctional Officers have taken to update and maintain their skills and therefore it would be unsafe for him to be given the temporary assignment he seeks.

10I am of the view that the grievance must fail. There has been no violation of the Collective Agreement nor of any Employer policy that was put before this Board.

11I agree with the Employer that temporary assignments are at the discretion of the Employer who is to exercise that discretion in good faith. A review of the rationale set out above that was taken into account by the Employer reveals that there were a number of reasons, not the least of which was health and safety of the grievor himself and his co-workers, for the Employer to deny the request for a temporary assignment.

12The grievor alleged that the Employer acted in bad faith in its denial of this request. Again, I must disagree. Some of the internal correspondence provided to the Board indicated that the Employer sought assistance and the views of others in arriving at its decision.

13I cannot find that the Employer exercised its discretion in bad faith.

14I understand that the grievor is somewhat frustrated by the fact that the Employer ordered him to act as a Correctional Officer for two days in 2009, that assignment is not determinative of this matter.

15Accordingly, the grievance is dismissed.