GSB# 2018-3933

UNION# 2019-0551-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Endrizzi)

Union

• and -

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

Employer

BEFORE

Gail Misra

Arbitrator

FOR THE UNION

Matthew Hrycyna Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Mark Mikoluff (Manager) Ministry of Children, Community and Social Services

Karen Martin (Employee Relations Advisor) Treasury Board Secretariat

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, Community & Social 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.

7Ivan Endrizzi is a Probation Officer in Youth Justice Services, working out of the North Toronto Probation Office. He filed a grievance on January 31, 2019 claiming that the Employer had violated Article 6.1.1 of the Collective Agreement by not filling three positions at the North Toronto Probation Office, and that it is improperly exercising its management rights not to fill vacancies. By way of remedy, the grievor wants the Employer to fill the vacancies.

8According to the grievor, over the past four years, the compliment of his office has been reduced from 15 to 4 workers. Most recently, when three people left, leaving three vacancies, the grievor asserts that the Employer was obliged to post and fill those vacancies.

9The Employer maintains that it has the discretion, pursuant to its management rights, to decide when positions have to be filled. In this instance, the number of clients and probation cases have been dropping off dramatically over the last few years, so that there is simply very little work for Probation Officers to do. The case load has gone down so much that on average a Probation Officer now only has about 15 files, which is not a full workload. Since the work is not there, the Employer has determined it is unnecessary to fill positions when staff have left the North Toronto Probation Office.

10Article 2 of the Collective Agreement states as follows:

2.1 For the purpose of this Central Collective Agreement and any other Collective Agreement to which the parties are subject, the right to hire and lay-off, appoint, assign and direct employees; evaluate and classify positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workplace, the kinds and locations of equipment, the merit system, training and development and appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer. It is agreed that these rights are subject only to the provisions of this Central Collective Agreement and any other Collective Agreement to which the parties are subject.

(Emphasis added)

11Based on the submissions of the parties, I am satisfied that in this instance there is nothing to suggest that the Employer has acted in bad faith or is abusing its management right to determine the staffing level for the North Toronto Probation Office. Where there is insufficient work available, as there has been in this particular office for some time, the Employer is not obliged to fill a vacancy when someone leaves.

12Having considered the facts and the submissions of the parties, and for the reasons outlined above, this grievance is dismissed.