GSB#2013-1446, 2013-1574, 2013-1696
UNION#2013-0999-0049, 2013-0999-0063, 2013-0999-0069
Additional grievances noted in Appendix “A”
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Klonowski et al-Union)
Union
- and -
The Crown in Right of Ontario (Treasury Board Secretariat)
Employer
BEFORE
Reva Devins
Arbitrator
FOR THE UNION
Richard Blair Ryder Wright Blair & Holmes LLP Counsel
FOR THE EMPLOYER
George Parris Treasury Board Secretariat Legal Services Branch Counsel
HEARING
October 9 and 29, 2019
Decision
1This is one of a series of grievances regarding the operation of the Transition Exit Initiative, (“TEI”), set out in Appendix 46 of the Collective Agreement. I have now issued four decisions on the scope of the Employer’s discretion to allow or deny a request for TEI: Koeslag, issued January 12, 2016, Vadera, June 28, 2018, Kimmel, November 29, 2018 and Anich, August 9, 2019.
2The current group of Grievors are all Correctional Officers. The Employer considered their requests for TEI but did not approve them. The Union alleges that the Employer’s exclusive focus on some factors, to the exclusion of others, was tantamount to establishing a blanket rule and that this was an improper exercise of their discretion.
3The Employer maintained that there was no blanket rule, that the Grievors’ requests were considered, but that fiscal and operational limitations pertaining to their positions meant that the Grievors’ exit from the Ontario Public Service (“OPS”) would not support the Employer’s vision of transformation.
Agreed Statement of Facts
4The parties submitted an Agreed Statement of Fact (“ASF”) as follows:
A number of Correctional Officers employed by the Ministry of the Solicitor General (the “Ministry”) applied for TEI between January 2013 to the end of November 2018 (the “CO TEI Applications”).
The Ministry did not approve any of the CO TEI Applications.
The Union filed grievances between January 2013 and the end of November 2018 on behalf of Correctional Officers whose TEI applications were not granted (the “CO TEI Grievances”).
For the purposes of these grievances, the Employer does not dispute that the requirements of paragraph 2(i) of Appendix 46 were met. This is without prejudice in other matters.
The Transit Exit Initiative (Appendix 46) was first effective January 24, 2013. The language of Appendix 46 was amended effective October 30, 2015.
The Employer’s evidence would be that the decision to not approve CO TEI Applications was made by the Assistant Deputy Minister, Institutional Services. The Union does not have evidence to the contrary.
It would be the Employer’s evidence that the Ministry did not grant the CO TEI Applications based on the following factors: At the time of the CO TEI Applications and the CO TEI Grievances, the Ministry had no intention of reducing the numbers of Correctional Officers. To the contrary, the Ministry was interested in increasing the number of Correctional Officers. It was therefore the Ministry’s view that there was no transformation that would be supported by granting the CO TEI Applications. The Union does not have any evidence to the contrary.
It would be the Employer’s evidence that Staffing shortages in the Ministry were a factor in a number of operational and fiscal challenges, including partial and full lock-downs in Correctional Institutions and high overtime costs. The Union does not have evidence to the contrary.
The grievances to be determined pursuant to the above are as follows: See Appendix A.
The Parties agree that in the event there are other Correctional Officer grievances outstanding regarding TEI denial filed between January 2013 and the end of November 2018, the result in the above noted grievances should also pertain to those grievances unless the grievance raises an issue sufficient to distinguish it from the grievances above.
Appendix 46
5The relevant provisions of Appendix 46 are as follows:
All regular, regular part-time and flexible part-time employees will be eligible to apply to a Transition Exit Initiative (TEI).
An employee may request in writing voluntary exit from employment with the OPS under the TEI, which request may be approved by the Employer in its sole discretion. The Employee’s request will be submitted to the Corporate Employer. The Employer’s approval shall be based on the following considerations:
i. At the time that an employee TEI request is being considered, the Employer has plans to reduce positions in the OPSEU bargaining unit; and
ii. The Employer has determined in its discretion that the employee’s exit from employment supports the transformation of the Ontario Public Service.
iii. The Employer will consider whether employees are on the TEI list when making surplus decisions.
Submissions
6The Grievors believed that the Employer failed to fairly process and consider their applications. The Union argued that TEI was an OPS wide initiative and that the Employer repudiated that commitment when it refused to grant any TEI requests from Correctional Officers. Correctional Officers were effectively excluded from an available benefit and discriminated against on the basis of their classification.
7The Union accepted that an ongoing need for the applicant’s position was a relevant factor in the exercise of the Employer’s discretion. However, it argued that a one for one reduction should not be the sole consideration. Counsel suggested that the Employer could have considered whether transformation could be achieved by other means, such as granting TEI to senior employees and replacing them with junior employees.
8The Union argued that the Employer’s reliance on factors solely related to immediate staffing needs amounted to application of a blanket rule. The factors were rigidly applied and so narrow that the result was pre-ordained and therefore an improper exercise of discretion.
9Counsel for the Employer maintained that the Board has already held that the Employer has broad discretion in determining whether TEI should be granted and what the relevant considerations are in making that determination: Koeslag, supra and Vadera, supra. The Board has also specifically found that the Employer is entitled to make a business decision not to grant an individual’s request for TEI where their position cannot be eliminated: Kimmel, supra and Anich, supra.
10In this case, the Employer argued that the factors it took into account were completely appropriate and that it would not make sense, operationally or fiscally, to grant TEI requests that would only exacerbate existing staffing pressures. There was no formal blanket rule that prevented consideration of requests for TEI from Correctional Officers. Nor has the Union identified any particular factors that were missed or should have been considered.
11Counsel for the Employer argued that the same result for several employees does not establish that the Employer fettered its discretion. This outcome was the direct result of a shortfall in the number of employees occupying the same position as the Grievors. Ultimately, it is possible for an entire group of employees to receive TEI whereas no one in another group gets approved, depending on the circumstances of the group of applicants. In the Employer’s submission, this is not discrimination or differential treatment, but rather reflects the varying contexts of the two groups of employees.
12In reply, the Union confirmed its position that the Employer’s consideration of the two factors identified in the ASF, to the exclusion of other factors, is tantamount to a blanket rule that no CO can be granted TEI. Appendix 46 provides that TEI is available across the bargaining unit, without distinction. By applying such a narrow set of considerations, the Employer has made it impossible for COs to access this benefit.
Analysis
13The Grievors are Correctional Officers at a variety of correctional facilities. The Employer considered all of their requests for TEI, applied what it considered to be the relevant criteria and determined that it would not approve any of their requests. The issue raised by these grievances is extremely narrow: has the Employer fettered its discretion by considering a restrictive set of factors that is tantamount to a blanket rule?
14I have previously found that Appendix 46 confers a broad discretion on the Employer to determine whether granting a request for TEI would support its vision of transforming the OPS: Koeslag, supra. While recognising that there may have been a number of different approaches that the Employer could have adopted, it remains in the Employer’s sole discretion to decide whether an ‘employee’s exit from employment supports transformation’ and, in so doing, to determine which factors are relevant to the exercise of that discretion: Vadera, supra.
15The Employer has consistently taken the position that its vision of ‘transformation’ is squarely focussed on downsizing their workforce. They have offered the TEI as a targeted inducement to encourage employees to voluntarily retire or resign, allowing the Employer to eliminate a position without the need to surplus other employees who wish to remain. In earlier cases, I have determined that the Employer is entitled to take that approach: Kimmel, supra and Anich, supra.
16Despite their broad discretion, I have also concluded that the ordinary principles for the proper exercise of discretion apply. Consequently, when the Employer considers requests for TEI, the decision cannot be based on irrelevant considerations or otherwise violate the principles set out in Re Kuyntjes, GSB #513/84 (Verity): Koeslag, supra.
17In this case, the Employer conceded that it had general plans to reduce positions in the OPSEU bargaining unit but had no specific need to reduce the number of Correctional Officers. In fact, it was experiencing significant, ongoing challenges because of understaffing, including institutional lock-downs and high overtime costs. In light of these circumstances, which were not disputed by the Union, the Employer determined that granting the Grievors’ TEI requests would not support its plan for transformation. As explained by counsel, it would only exacerbate the fiscal and operational challenges experienced by already understaffed correctional facilities.
18The Union did not raise allegations of bad faith, Code based discrimination or argue that the factors considered by the Employer were arbitrary or irrational. The sole basis for the Union’s argument was that the effect of the factors used in considering the Grievors’ requests for TEI inevitably led to their denial. In its submission, this was tantamount to imposing a blanket rule and inconsistent with the intent of paragraph 1 that all regular employees will be eligible to apply for TEI.
19Although the result was undoubtedly deeply disappointing for the individual Grievors, the factors that the Employer deemed relevant did not equate to imposing a blanket rule that Correctional Officers are ineligible for TEI. These factors were rational considerations that are reasonably related to achieving transformation as the Employer saw it. They were applied uniformly and the result was consistent but did not amount to a fettering of discretion. The consistency of the Employer’s decisions simply reflects that the most important facts pertaining to the Grievors’ circumstances, and therefore the manner in which their exit would or would not support the Employer’s vision of transformation, were the same.
20I agree with counsel for the Employer that an identical outcome for all of the Grievors does not automatically mean that the Employer improperly exercised their discretion. In my view, analogous decisions were reached because the Grievors shared a common denominator. They all occupied positions that were chronically and notoriously understaffed and this commonality was material to the consideration of their request.
21In this case, while the position occupied by the Grievors was central to the assessment of whether they would be granted TEI, the Employer did not mechanically apply a rigid rule that prevented them from considering all of the relevant facts. Ultimately, the Employer measured each request against the vision it had for transforming the OPS, taking into account the current operational and fiscal reality in correctional facilities. The outcome was not due to an immutable rule singling out COs or prohibiting them from ever being approved for TEI. The result was dictated by the fundamentally similar circumstances of the Grievors.
22Having considered the evidence and the submissions before me, I have determined that the Employer properly exercised its discretion. The Correctional Officer TEI Grievances are therefore dismissed.
Dated at Toronto, Ontario this 7th day of November 2019.
Appendix A
Grievor
Union File No
GSB File No
Armstrong, Darrell
2014-0718-0002
2014-2692
Briscoe, Nancy
2013-0229-0013
2013-2288
Carruthers, Stephen
2015-0616-0059
2015-3133
Cerqua-Iaboni, Vincenza
2014-0582-0001
2013-3611
Dumont, Henri
2013-0642-0030
2013-2272
Glennie, Joanne
2014-0108-0018
2013-4288
Hollings, David
2013-0229-0014
2013-2289
Klonowski, Kim
2013-0369-0020
2013-2462
Lawson, Donna
2013-0582-0042
2013-2346
Pender, George
2013-0642-0029
2013-2271
Selkirk, Russell
2013-0234-0396
2013-4085
Stewart, Brady
2013-0411-0051
2013-3156
Stockwood, Donald
2013-0582-0047
2013-3196
Theriault, Line
2013-0642-0035
2013-2422