Ontario Public Service Employees Union (Holwell) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2016 CanLII 95432

GSB#2016-0871

UNION#2016-0234-0136

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Holwell)

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

Dan Sidsworth Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Greg Gledhill Treasury Board Secretariat Centre for Employee Relations Employee Relations Advisor

HEARING

November 3 & 25, 2016

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.

7Pauline Holwell was Correctional Officer at Vanier Centre for women. On April 8, 2008 she resigned her position as a classified CO effective April 30, 2008. At the same time she had made arrangements to begin employment at VCW as an Unclassified CO effective May 5, 2008. This change in status was confirmed in a letter from the Employer dated April 14, 2008.

8In February of 2016, the grievor was rolled over into classified stated in accordance with a Memorandum of Agreement dated February 4, 2016. On June 28, 2016 Ms. Holwell filed a grievance that alleged her continuous service date was incorrect. It was the grievor's view that she should have been given full recognition for her service as the result of having been "with the Ministry of Correctional Services on April 1990 with no break in service."

9It was the grievor's contention that she resigned her position in 2008 for personal reasons relating to her family. She is of the view that she should have been accommodated and would have asked for an accommodation at the time had she known that she was so entitled.

10The Employer noted that the grievor had a break in her classified service and therefore there has been no violation of the Collective Agreement or any other MERC agreement. The Employer further stated that it had no idea at the time of any need for a family status accommodation for Ms. Holwell. However, it was suggested that given that the grievor had been accommodated for other reasons during that time, it was unlikely that she was unaware of her rights.

11The grievor also relied upon the fact that there are some Correctional Officers who were given consideration in full or in part for their past service. The Employer responded that any individuals who received such treatment obtained such as the result of their having been surplussed and then returned after having paid back their severance.

12After hearing the facts and submissions of the parties I must agree with the Employer's position and this grievance must fail. The grievor did not ask for a family status accommodation at the time and so cannot – some eight years after the fact – rely on the fact that she was having personal family difficulties to withdraw her resignation. Further, the fact that others may have gotten recognition of past service for whatever reason does not mean that there has been a violation of the Collective Agreement as it relates to the grievor. Finally, as previously decided in Re Ministry of Public Safety & Security & OPSEU (Union) GSB#2002-2095 (Briggs), "none of the seniority accumulated during the employee's earlier unclassified or classified service would be taken into account because the employee resigned..."

13For those reasons, the grievance is dismissed.