GSB# 2014-1900
UNION# 2014-0368-0114
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Conty)
Union
- and -
The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)
Employer
BEFORE
Gail Misra
Arbitrator
FOR THE UNION
Dan Sidsworth Ontario Public Service Employees Union Grievance Officer
FOR THE EMPLOYER
Al. J. Quinn Ministry of Community Safety and Correctional Services Senior Employee Transition Advisor
HEARINGS
January 18, 2019 and April 18, 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 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.
7Melissa Conty filed a grievance on May 20, 2014 claiming that, for her Continuous Service Date ("CSD") purposes, she had not been credited with 40 hour weeks during a period when she had been off work due to illness. The grievor had been a fixed term Correctional Officer at the Central East Correctional Centre.
8Based on the facts and the parties' submissions, it appears that a thorough review of the grievor's hours was conducted and the grievor's CSD was set to November 3, 2008. However, that was later changed to November 27, 2008, and there was a suggestion that the CSD should be December 15, 2008.
9Having reviewed all the documentation relating to the grievor's hours of work, for the reasons to follow, I direct that the Employer adjust the grievor's CSD to November 3, 2008.
10The grievor was off work sick from December 3, 2013 to March 31, 2014.
11The calculation of hours when a fixed term employee is on sick leave is to be done as the Board outlined in its decision in OPSEU (Union) v. Ministry of Public Safety and Security, GSB#2095/02, July 17, 2003 (Briggs), at p. 3:
For the purposes of calculating straight-time hours for unclassified employees under Appendix 24 for this agreement, the parties have agreed that authorized leaves granted to unclassified employees during their unclassified employment will be treated as follows:
(B) Unpaid sick leave
(i) scheduled shifts: Credit number of hours in the scheduled shifts missed due to illness
(ii) other periods: utilize "Leave Formula": Calculate employee's average weekly hours from the last day the employee worked before going on the leave going back 13 weeks. Credit weekly average over the 13 weeks for each week of leave.
12Since the grievor was off work for an extended period of time in 2013-2014, her hours must be calculated in accordance with (B)(ii) above by looking at the 13 week period before she commenced her sick leave. Having reviewed the documents regarding the grievor's hours in the 13 weeks prior to her sick leave, it is clear that she did not have an average of 40 hours per week. As such, those weeks cannot be counted as 40 hour weeks.
13For the reasons outlined above, this grievance is upheld in part. The Employer is directed to amend the grievor's CSD to November 3, 2008.
Dated at Toronto, Ontario this 25th day of April, 2019.