GSB#2014-0621

UNION#2014-0263-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Messner)

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

Alison Nielsen-Jones Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Brian Scott Treasury Board Secretariat Centre for Employee Relations Employee Relations Advisor

HEARING

September 12, 2014, January 22, 2015

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.

7More recently, the parties negotiated a Memorandum of Agreement regarding the recruitment process for Probation and Parole Officers. (“PPORP”) This Roll-over agreement stated that this Board would remain seized of any disputes and it was further agreed that the disputes would be determined through the transition process.

8Ms. Antoinette Messner is a full time employee whose home position is Administrative Support Worker – OAG8. She has been with the OPS for approximately twenty years and for the last two years she has been seconded into a P & P position in the Brampton office. She filed a grievance that alleged she had been improperly denied a roll-over opportunity contrary to Article 6 and 8 as well as COR 16 of the Collective Agreement. She stated in her grievance that she was not considered for one of the forty-eight roll-over positions because she was working in a seconded Probation and Parole position at the time of the roll-over. It was her view that Article 6 of the Collective Agreement entitles her to compete for one of the roll-over positions. The grievor took the position that the entire roll-over process itself was in contravention of COR 16 and Articles 6 and 8 of the Collective Agreement.

9In the PPORP Memorandum, the parties agreed that all regular vacancies within both Ministries would be filled by way of lateral transfers; roll-overs – based on straight time hours; and competitions. However, at the MERC level it was agreed by the parties that the initial positions would be filled by way of lateral transfers and roll-overs. Both of these processes eliminate any chance for the grievor to obtain one of the vacant positions.

10While I appreciate the grievor’s frustration, I cannot uphold her grievance. The parties implemented their Memorandum and agreed upon a process for the filling of vacancies. While that agreement has virtually removed the grievor from the process, it is not a violation of the Memorandum. Generally speaking, the parties have arrived at agreements over the past decade that provides the most number of qualified and senior officers with permanent positions in a simplified and fair process. Many employees have achieved regular full time status much earlier than they otherwise would. It is not surprising that employees whose home position is other than P & P would not be entitled to be automatically rolled over.

11The grievor also alleged in her amended grievance that she was discriminated against because she is South Asian. The Union noted that the parties agreed that the Memorandum does not interfere with any diversity initiatives. Not assigning the grievor to a permanent P & P position discriminates against the grievor as a South Asian person. Given that there are few South Asian persons occupying permanent

P & P positions the Employer should be attempting to rectify the situation by giving qualified South Asians the permanent P & P positions. The Employer’s failure to implement diversity initiatives constitutes a breach of the Ontario Human Rights Code.

12I disagree. There was no evidence of discrimination presented except the fact that few South Asians occupy the position at issue. Simply put, that is not sufficient for a finding of discrimination.

13The grievance is denied.