GSB#2013-3305

UNION#2013-0108-0135

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (McDougall)

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

Nick Mustari and Gregg Gray Ontario Public Service Employees Union Grievance Officers

FOR THE EMPLOYER

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

Linda Elliott Ministry of Community Safety and Correctional Services Employee Transition Manager

HEARING

January 20, June 9, 2014

Decision

1Since 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.

2The 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.

3Over 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.

4The parties have also negotiated a number of agreements that provide for the "roll-over" of fixed term staff to regular (classified) employee status.

5Hundreds 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.

6It was determined by this Board at the outset that the process for this 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.

7Kendra McDougall is a Correctional Officer at Elgin Middlesex Detention Centre. She began as a fixed term employee in 2008. In December of 2010 she requested a temporary assignment to the Chatham Jail. That assignment was extended and she did not return to EMDC until April of 2012.

8In February of 2013 there was a rollover of staff at EMDC Ms. McDougall filed a grievance alleging that she should have been rolled over into classified status at that time. It is her view that because of the "employee's rights" section of the temporary assignment agreement she signed, her grievance should be upheld.

9The Employee's Rights provision of the December 23, 2010 agreement Ms. McDougall signed stated:

Employee's rights and entitlements will continue from his/her home position at EMDC. The employee retains status as a civil servant and entitlement to apply for employment opportunities within the OPS. Employee will not be entitled to be "rolled-over" into a classified position at the Chatham Jail during this three month temporary assignment. However, any hours worked at Chatham Jail may be included in total hours worked for being considered for "roll-over" at EMDC upon the Employee's return to EMDC.

10The Roll-over exercise undertaken by these parties follows signed Memoranda of Agreement for each institution. At EMDC, such an agreement was signed on February 11, 2013. Paragraph 2 of that agreement stated:

Fixed-Term Correctional Officers who have entitlements to these positions at the Elgin-Middlesex Detention Centre are fixed-term Correctional Officers who have been employed and continue to be employed at the Elgin-Middlesex Detention Centre for one year prior to the date of the signing of this Agreement. (emphasis mine)

11The above provision at paragraph 2 of the Memorandum of Agreement virtually always appears as a condition of the roll-over agreements. While it occasionally happens that COs such as the grievor appear to have been disadvantaged, it is meant to ensure that people who have been continually employed at a particular institution have preference over those who are on or who have been on temporary assignments elsewhere.

12The grievor had not been continually employed at EMDC for a full year prior to the roll-over exercise and therefore the grievance is denied.