GSB# 2018-1145; 2019-1323, 2019-1321

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Adu et al)

Union

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Gail Misra

Arbitrator

FOR THE UNION

Dan Sidsworth Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

A.J. Quinn Ministry of the Solicitor General Employee Transition Manager

HEARING

July 19, 2019 and December 19, 2019

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 (now, the Ministry of the Solicitor General) 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 these 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.

7Margaret Adu filed Grievance No. 2017-5112-0342 on November 1, 2017 claiming that the Employer unfairly removed her custodial responsibility allowance ("CRA") when she was working as a driver at the Toronto South Detention Centre ("TSDC").

8The grievor is a Driver at the TSDC. According to the grievor, she had received the CRA previously when she had worked as a driver, and when she had worked on a temporary assignment as a Cook in the kitchen. However, when she went back to being a driver, she was no longer paid the CRA. The grievor claims that two other drivers at the TSDC were receiving the CRA while she was not.

9On July 10, 2019 Ms. Adu filed a second grievance (No. 2019-5112-0147) claiming that all drivers were no longer being paid the CRA, but she felt they should be.

10On July 10, 2019 Rodrigo Sarmiento, another driver at the TSDC, filed Grievance No. 2019-5112-0145, also claiming that all drivers were no longer being paid the CRA, but ought to receive it.

11According to the Employer, there had been a patchwork across the province of some institutions paying the CRA to drivers while others did not. However, since the issuance of a decision by Arbitrator Ian Anderson on December 11, 2018, the Employer has moved to regularize the practice province-wide. Hence, as of July 2019, the two drivers at the TSDC were no longer being paid the CRA.

10Pursuant to the Anderson decision (OPSEU (Campbell et al) and Ministry of Community Safety and Correctional Services, GSB #s 2016-1269 et al., December 11, 2018), Motor Vehicle Operators are not entitled to the CRA, which pursuant to Appendix UN 2 of the Collective Agreement, is payable to employees responsible for the custody of inmates in their charge, and who meet the other conditions outlined in the Appendix.

11Having reviewed the submissions of the parties and the jurisprudence before me, for the reasons outlined above, these grievances are denied.