GSB# 2013-3790, 2013-3898, 2013-3899, 2013-3900

UNION#2014-0229-0002, 2013-0271-0003, 2013-0271-0004, 2013-0271-0005

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Thomas)

Union

• and -

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

Employer

BEFORE

Daniel Harris

Vice-Chair

FOR THE UNION

David Wright Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Labour Practice Group Counsel

HEARING

May 25, 2015

Decision

The Issue

1There are four grievances before me filed by OPSEU on behalf of the grievor, Terrence Thomas. The grievor is a Corrections Officer with the employer, the Ministry of Community Safety and Correctional Services. This decision deals with one of the grievances. The union has brought a motion in the nature of an application for summary judgment. It says that, based on the facts agreed to by the employer, there's a demonstrated breach of minutes of settlement.

2The minutes of settlement relied upon were entered into on January 28, 2011. That agreement settled a large number of grievances brought on behalf of Mr. Thomas.

3For the purposes of this motion, the parties have agreed upon the following Statement of Fact:

For the purposes of a motion being brought by the union on May 25, 2015, the parties agree to the following facts:

1. The parties entered into a Memorandum of Settlement dated January 28, 2011 (copy attached as Appendix 1);

2. Pursuant to the terms of that Settlement, the Grievor commenced a temporary assignment as a Probation and Parole Officer in the Halton Probation and Parole Office on January 31, 2011;

3. The Grievor remained in that position in that office through to November 24, 2013 when, pursuant to a letter dated November 12, 2013 (copy attached as Appendix 2) he was returned to his "home" position as a CO2 and was assigned to the Ontario Correctional Institute;

4. The Grievor did not attend any courses at the Correctional Services College after 2011. However, the Grievor and Ministry entered into a Training Plan for the Grievor in November 2011 which was scheduled to continue until March 2012;

5. During the period from January 31, 2011 to November 24, 2013 the Grievor performed the functions of a Probation and Parole Officer.

4The portions of the memorandum of settlement that are relevant include paragraphs 1, 2, 4 and 5, which read as follows:

1. Upon receipt of sufficient medical documentation certifying that Mr. Thomas is fit to perform the core duties of the position, the Employer agrees to place Mr. Thomas on a temporary assignment as a Probation and Parole Officer at the Halton Probation and Parole Office effective January 31, 2011. Pending the receipt of this medical documentation, Mr. Thomas shall remain on sick leave in accordance with his Short Term Sickness credits.

2. The Employer agrees that the above noted assignment will be for a period of twelve (12) months’ duration and throughout this period Mr. Thomas will be required to successfully complete all outstanding requirements of the Probation and Parole Basic Training Program, as available within the twelve (12) month assignment, and satisfactorily perform all job requirements of the Probation and Parole Officer position. If the Correctional Services College, for reasons beyond Mr. Thomas’ control, does not offer the required training courses within the twelve (12) month time frame, Mr. Thomas will be afforded the opportunity to remain in the temporary assignment until the opportunity to complete those courses becomes available.

3. It is understood between the parties that if Mr. Thomas meets all training and job-related requirements as set out in paragraph (2) above at the end of the twelve month temporary assignment set out in paragraphs (1) and (2) above, Mr. Thomas’ home position will be transferred to a full-time Probation and Parole Officer position at the Halton Probation and Parole Office.

4. It is understood between the parties that if Mr. Thomas does not meet all the requirements set out in paragraph (2) above during his 12 month temporary assignment, upon (2) weeks notice he will return to a position as a Correctional Officer at the Toronto W. Detention Centre.

5The union submitted that the only provision in the minutes of settlement providing for an extension of the 12 month term is found in paragraph 2. That is, if the required training courses were not available to the grievor within the 12 month period he would remain in the temporary assignment until the opportunity to complete those courses became available. It said that the agreed statement of facts here does not assert that he could not have taken those courses in that timeframe. Accordingly, there could be no extension to the 12 month period. The union submitted that the effect of this was that at the expiration of the 12 month period, the grievor was either to be made permanent in the position or returned to his home position of Correctional Officer. It said the grievor stayed in the position for approximately 21 months, almost twice the period contemplated by the minutes of settlement. It said by doing so the employer must be deemed to have accepted that the grievor was permanent in the position. It said that it was not open to the employer to purport to exercise the two-week notice provision in paragraph 5 some 22 months after he started in the position.

6The union likened this situation to that of a probationary period. Not that the grievor was on probation, as that term is known to the collective agreement, but with respect to the sanctity or rigidity of the contemplated period. That is, if a probationary employee is kept beyond the probationary period, even for as short as a day or two, the probationary period has passed and the employee has all of the rights under the collective agreement of a permanent employee. The union relied upon the following authorities: Re Canada Post Corporation and Canadian Union of Postal Workers (1983), 1983 CanLII 4893 (CA LA), 11 L.A.C. (3d) 90 (P. Picher) and Canadian Broadcasting Corporation and N.R.P.A., Re (1991), 1991 CanLII 13374 (CA LA), 22 L.A.C. (4th) 40 (Burkett).

7The employer submitted that the entire agreement set out in the minutes of settlement must be taken in context. The minutes of settlement settled a large number of grievances, the purpose of which was to give the grievor an opportunity to move out of the operational side of the ministry into the community side. It did not immediately move his home position. He was required to meet the same standards as any Probation and Parole Officer. It said that meeting these standards was a condition precedent to the grievor remaining in the Probation and Parole Officer position. It submitted that the Board would need to hear evidence of whether or not the grievor met the standard required to permit him to stay in the position. It agreed that the grievor's “Training Plan” did go beyond the anticipated 12 month end date of the minutes of settlement.

8The employer also relied upon the canon of construction that all words have to be given meaning. It said that all of paragraph 5 must have a purpose, including the requirement that the grievor be given two weeks notice of his return to his home position as Correctional Officer. The employer submitted that the language of the minutes of settlement does not require them to decide at the 12 month point whether the grievor is to stay in the position or return to his home position. Giving meaning to the two-week notice provision in paragraph 5 was said to lead to the conclusion that the grievor might overstay the 12 month period and be returned to his home position upon two weeks notice if he had not met the standards of the Probation and Parole Officer position. The employer relied upon excerpts from Brown and Beatty found at paragraphs 4:2120 and 4:2151.

9In reply, the union submitted that if this grievance were heard on its merits there would be a factual dispute as to whether or not the grievor met the requirements of the position. It said that its interpretation of the minutes of settlement takes into account both the whole agreement and gives meaning to all of the words in the agreement. It said that paragraphs 1, 2, 4 and 5 require the employer to make an assessment. It said paragraphs 4 and 5 sitting together provide that should the employer decide within the 12 month period that the grievor has not met the standards he would receive two weeks notice of his return to his home position. It said that both paragraphs 4 and 5 refer back to paragraph 2. The employer had a year to make its decision, and since the grievor did not go back to his home position, he must be taken to be permanent in the Probation and Parole Officer position.

Reasons for Decision

10The thrust of the union’s submissions is that paragraphs 4 and 5 of the minutes of settlement set out an algorithmic either/or scenario. That is, either the grievor meets all of the requirements set out in paragraph 2 within the twelve-month period, and his home position becomes that of a Probation and Parole Officer, or he does not meet all of the requirements set out in paragraph 2 within the twelve-month period and the employer must return him to his home position as a Correctional Officer. It says that because the employer did not return the grievor to his home position the grievor must be deemed to have met the requirements of paragraph 2, and he should be declared permanent in the Probation and Parole Officer position. I do not agree with this submission because it requires that language be added to paragraphs 4 and 5. Nowhere did these paragraphs say that the end of the 12 month period is a bright line at which point one of the two options must be exercised. Indeed, the union calls for the insertion of a deeming provision, whereby the failure of the employer to require the grievor to return to his home position leads, by implication, to the conclusion that they have agreed that the requirements of paragraph to have the net. This would require in addition to the language of the minutes of settlement beyond the words that were chosen by the parties. It is the words chosen that provide insight into the parties’ intentions.

11Further, both paragraph 4 and paragraph 5 refer back to paragraph 2 and speak in terms of whether or not “all training and job-related requirements” set out in paragraph 2 have been met. All I have before me at this juncture are the agreed facts, which are agreed to only for the purpose of this motion. It is agreed that the employer and the grievor entered into a "Training Plan". On its face, that is not the same as the "Probation and Parole Basic Training Program", pursuant to paragraph 2, the outstanding requirements of which must be successfully completed by the grievor within the 12 month period. At this juncture, it is not an agreed fact that those requirements have been met or that the grievor has satisfactorily performed all of the job requirements of the position. I agree with the employer that these are conditions precedent to the grievor being placed in the position or, in their absence, he be removed from the position pursuant to paragraphs 4 and 5 of the minutes of settlement. In the absence of agreement between the parties that these conditions have been met, paragraph 4 is not triggered. Further, the last sentence of paragraph 2, looking at the minutes of settlement as a whole, in my view are not intended to be the only basis upon which the grievor may stay in the position for more than 12 months. It is a failsafe for the benefit of the grievor. If the required training courses had not been offered in the 12 month period, this part of paragraph 2 protected the grievor from circumstances beyond his control.

12Turning again to paragraph 4, there are no facts before me to establish that the grievor met all the specific training and job-related requirements set out in paragraph 2 by the end of the 12 month temporary assignment set out in paragraphs 1 and 2. Accordingly, there are no facts upon which I can find that the grievor's home position should be transferred to a full-time Probation and Parole Officer position at the Halton Probation and Parole Office.

13Turning again to paragraph 5, there is no evidence before me that the grievor did not meet all of the requirements set out in paragraph 2. There is also no bar to the grievor being kept in the temporary assignment on an extended basis, provided if and when he fails to meet the requirements of paragraph 2, he was given two weeks notice of his return to his home position.

14Whether the grievor did or did not meet all of the requirements set out in paragraph 2, in the absence of agreement at this stage are facts in issue to be tried.

Decision

15Accordingly, for the reasons given above, the union's motion that the Board declare that the grievor’s home position is that of a Probation and Parole Officer at the Halton Probation and Parole Office is dismissed.