GSB# 2017-1258

UNION# 2017-0234-0122

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Paredes)

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.

7Alex Paredes is a Correctional Officer ("CO") at Maplehurst Correctional Complex. He filed a grievance dated July 9, 2017 claiming that he had not been credited with hours towards his Continuous Service Date ("CSD") due to an 18 month paid suspension, and accommodation on the basis of family status for five years. He claimed that with respect to the latter, it was a breach of the Human Rights Code for the Employer to not count the weeks worked as 40 hour weeks even though he worked 36 hours. The grievor is seeking to have his CSD corrected accordingly.

8The grievor was on a paid suspension from October 20, 2014 to March 21, 2016. Pursuant to a Memorandum of Agreement reached between the Employer, Union and Alex Paredes, dated March 21, 2016, related in part to the grievor's paid suspension, along with other matters, Mr. Paredes specifically agreed that he could file no grievances with respect to the period of the suspension with pay (at para. 2 of the settlement).

10With respect to the grievor's family status claim, the grievor asserts that he had requested to work 36 hours per week rather than the regular 40 hours per week, and he was permitted to do so to assist him with a child care schedule. According to the grievor, that arrangement continued for a five year period. The grievor claims that he should be credited with 40 hours per week for all that time as he maintains that he had a family status human rights accommodation. However, the grievor has not supplied any documentation to support a finding that this was a human rights accommodation. To the contrary, the Employer's notes confirm that management simply agreed to allow the grievor to work 36 hours instead of 40 hours per week.

11The evidence further establishes that despite the grievor's assertion that for a five year period he could only work 36 hours a week due to the need for accommodation on the basis of family status, a review of his hours do not show a five year period of time when he did not work 40 hours. He in fact worked 40 hours a week on various occasions during the five year period, was available to work overtime, and did work overtime that took him above the 40 hour regular work week.

12Based on the Union's submissions, the grievor was rolled over from a fixed term contract to a permanent CO position on March 13, 2017, with a CSD of March 1, 2015. Since the filing of the grievance, the parties have reviewed Mr. Paredes' hours worked and have determined that the initial calculation was incorrect. They have recalculated the grievor's hours so that he should be credited with 8 additional weeks of hours, with the result that the grievor should therefore have had a CSD of January 4, 2015.

13For the purpose of calculating an individual's CSD, it is necessary to consider the parties' agreement in the Memorandum of Agreement with Respect to Calculating Appendix 24 (Fixed Term Seniority) for the Purposes of Fixed-Term Roll-Over, dated March 17, 2016 (the "MOA"). Pursuant to the MOA, if a fixed-term employee was on a suspension with pay pending investigation, their hours for each week are determined by using the Leave formula, which is to "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 the leave" (Attachment #1 to MOA dated March 17, 2016, Leave Types for the Purposes of Calculating Fixed Term (FXT) Seniority, Appendix 24, Appendix COR19).

20I have reviewed the documents submitted, and it is apparent that applying the formula outlined above, the grievor was to be credited with 26.85 hours per week for the duration of the paid suspension. That number was arrived at by calculating the average of the hours the grievor worked in each of the 13 weeks before he commenced the paid suspension.

21The Union argued on behalf of the grievor that it is discriminatory against fixed term COs that their hours are calculated in this manner while the hours for full time COs on paid suspensions are calculated on the basis of 40 hours per week. There is nothing discriminatory about this: full time COs have a regular work week of 40 hours, whereas a fixed term CO may or may not have a regular 40 hour work week, especially when one considers that the hours for statutory holidays not worked are not counted either.

22Having considered the documents and submissions made by the parties, and for the reasons outlined above, the grievance is upheld in part. The Employer is directed to amend the grievor's CSD to January 4, 2015.