GSB# 2018-3637

UNION# 2018-0119-0010

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Knight)

Union

• and -

The Crown in Right of Ontario (Ministry of Children, Community and Social Services)

Employer

BEFORE

Gail Misra

Arbitrator

FOR THE UNION

Gregg Gray Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Karen Martin Treasury Board Secretariat Employee Relations Advisor

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.

7Karen Knight was a Correctional Services Officer/Youth Services Officer at Bluewater Youth Centre ("Bluewater") in Goderich for 21 years until it closed in March 2012. She filed a grievance on December 3, 2018 claiming that at the time of the Bluewater closure, she was never informed that she could decline the severance package offered to her. She also asserts that she was not given an opportunity to go from full time to fixed term status at another facility or institution. By way of remedy, Ms. Knight seeks, among other things, to have her present income at the Ministry of the Attorney General topped up to the top level of a Correctional Officer's rate, less the severance pay that she had taken at the time she left Bluewater.

8Based on the submissions of the Employer, it is apparent that when Bluewater closed, and there was downsizing in two other youth centres around the same time, the Union and Employer had negotiated two agreements. One was a cross-ministry agreement designed to keep as many displaced employees employed as was possible through lateral transfers. The second was specific to Bluewater, regarding where those staff would have options to move to. At the time of the facilities closing, or being downsized, any employee who wanted a job got one.

9Ms. Knight asserts that although she was offered the options of taking a full time position or a severance package, she was not able to move to another town at the time due to a stressful family situation. She therefore chose the severance option. However, she asserts that she was not told by the Transition Team at the time that she had the option of going from full time to fixed term status at another facility or institution, which was an option she would have been interested in. She claims that sometime later she learned that a Bluewater co-worker had taken a fixed term position at the Stratford Jail, and had not taken the severance package. By that time the grievor had already left the OPS. At the time she filed the grievance, Ms. Knight was working at a fixed term job at the Ministry of the Attorney General. She filed this grievance approximately six years after she had left Bluewater.

10The Employer argues that this grievance is extremely untimely, and there is no reasonable explanation for why it was filed so late. It also asserts that no full time staff was offered the option of going to fixed term status, as the parties' goal had been to place any full time staff who wanted a position, in another full time position. Individuals made their own choices of what they wished to do. Some Bluewater employees made the choice that the grievor did, and may have reapplied to another Ministry after taking the package, and been rehired. Others may have been rehired within two years, in which case they would have paid back part of the severance package. That would have been an option available to the grievor, as to any other OPS employee. The Employer argues that it is simply too late for Ms. Knight to file a grievance regarding a choice she had made in 2012, having already taken the enhanced severance package that was offered.

11Article 22 of the collective agreement contemplates that complaints or differences between the parties are to be adjusted quickly, and that grievances should be filed within 30 days of the circumstances coming to an employee's attention, or when the issue ought to have come to the employee's attention. While an arbitrator has the statutory discretion to waive the time to file a grievance, in this case, it has taken Ms. Knight more than six years to have brought her issue to the Employer's attention, and it is simply too late to do so. The prejudice to the Employer is extreme, as the facility in question closed in 2012, and it would be very difficult to marshall evidence to defend itself now.

12However, even if the grievance could be considered, it is apparent that the grievor had been presented with the same options that had been offered to other displaced Bluewater employees. Those options had been agreed-upon between the Union and the Employer, and were consistent with the collective agreement rights of employees, or were better, in that many transfer options had been identified for Bluewater staff, and were made available to them on the basis of their respective seniority. It is impossible at this juncture to ascertain the circumstances under which some employee or employees may have taken the enhanced severance package, and then chosen to work in a fixed term capacity at the Stratford Jail.

13Having considered the facts and the submissions of the parties, and for the reasons outlined above, this grievance is dismissed.