GSB# 2019-1929

UNION# 2019-0234-0244

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Faccin)

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

Michelle LaButte Treasury Board Secretariat Employee Relations Advisor

HEARING

July 10, 2020 and December 11, 2020

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.

7David Faccin is a Fixed Term ("FXT") Correctional Officer ("CO") at the Vanier Centre for Women ("Vanier"). He filed a grievance on August 30, 2019 claiming that the Employer had violated Appendix COR19 and Article 31A of the collective agreement. By way of remedy, among other things, the Grievor seeks to have his seniority readjusted to show no break in service and to be awarded a full time Industrial Officer 2 position.

8The Grievor had taken a temporary assignment as an Industrial Officer at the Maplehurst Correctional Complex in January 2018. He returned to his FXT CO position on April 28, 2019. However, between May 6 and July 7, 2019, the Grievor was on a leave of absence, and for two weeks thereafter, until July 22, 2019, he did not work. It is unclear what may have been the reasons for these absences.

9It would appear that the Grievor believes that he had been in the Industrial Officer position for 18 months, and as such, should have been converted to regular status at the end of the 18 month period. However, it is apparent that Mr. Faccin had not been in the Industrial Officer position for 18 months as by April 28, 2019 he had returned to his CO position at Vanier. Between January 2018 and the end of April 2019, he had worked 16 months in the Industrial Officer position.

10Furthermore, the grievance was not filed until August 30, 2019, at which point, even on the face of Mr. Faccin's grievance, he identified himself as being back at Vanier, and in the position of a Correctional Officer.

11Article 31A.15 addresses "Conversion of Fixed Term Positions to Positions in the Regular Service". Pursuant to this provision, an employee must have performed the same work in an FXT capacity for "at least eighteen (18) months" (with some exceptions which are not applicable here), and the ministry must have determined that it continues to have a need for that position on a full-time basis (Art. 31A15.1.1) before conversion may occur. As such, Mr. Faccin would have had to have been in the Industrial Officer position for 18 months or more, and while he was in that position, would have had to grieve that he was not being converted to full time status. He did neither of these two things, and therefore this grievance must fail.

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