GSB#2013-1446, 2013-1574, 2013-1696

UNION#2013-0999-0049, 2013-0999-0063, 2013-0999-0069

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Fairley et al-Union)

Union

• and -

The Crown in Right of Ontario (Treasury Board Secretariat)

Employer

BEFORE

Reva Devins

Arbitrator

FOR THE UNION

Richard Blair Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

George Parris Treasury Board Secretariat Legal Services Branch Counsel

HEARING

January 23 and 28, 2020

Decision

1These grievances are part of a series regarding the operation of the Transition Exit Initiative, (“TEI”), under Appendix 46 of the Collective Agreement. The parties agreed that the current matters should be determined in accordance with Article 22.16 of the Collective Agreement.

2There are two groups of Grievors currently under consideration. The first group held various administrative and maintenance positions in the Ministry of the Solicitor General (“SOLGEN”) and the second group were Probation and Parole Officers in the same Ministry.

3Prior to their retirement, the Grievors each requested a voluntary exit package under TEI. The Employer considered their requests but did not approve them. The Union alleges that the Employer failed to properly process and administer the requests; specifically, that the Employer relied on a narrow set of facts, to the exclusion of other relevant factors and, in so doing, fettered their discretion.

4The Employer maintains that it concluded that there was an ongoing need for the Grievors’ positions and that, therefore, in its opinion, their exit from the Ontario Public Service (“OPS”) would not support the Employer’s vision of transformation. It further submitted that these grievances were virtually identical to those considered in earlier cases where it was determined that the Employer had properly exercised its discretion in similar circumstances.

Agreed Statement of Facts and Stipulated Evidence

5The parties submitted an Agreed Statement of Fact and Stipulated Evidence (“ASF”) with respect to the Grievors who held administrative and maintenance positions:

1. A number of employees in various positions employed by the Ministry of the Solicitor General (the “Ministry”) working at administrative and maintenance positions applied for TEI between January 2013 to December 2018 (the “TEI Applications”).

2. There were ten (10) individual applicants: Betti Fairley (Clerk, OAG 8), Carol Luckhardt (Finance Clerk OAG 8), Angeliki Zanotti (Librarian), Sue Hamilton (Personnel Clerk, OAG 9), Brenda Moffatt (Social Worker 2), Deborah Maltby (Program Clerk, OAG 7), David Armstrong (Maintenance Mechanic 3), Harvey Hill (Maintenance Mechanic 3), James Mullen (Maintenance Carpenter) and Robert Murphy (Maintenance Mechanic 3).

3. The Ministry did not approve any of the TEI Applications filed by the above noted employees.

4. The Union filed grievances between January 2013 and December 2018 on behalf of the above-noted employees whose TEI applications were not granted (the “TEI Grievances”).

5. For the purposes of these grievances, the Employer does not dispute that the requirements of paragraph 2(i) of Appendix 46 were met. This is without prejudice to other matters.

6. It would be the Ministry’s evidence that it did not grant the above-noted TEI Applications for the following reasons. At the time of the TEI Applications and the TEI Grievances, the Ministry had no intention of reducing the number of positions in the impacted institutions and the exit of the above noted applicants would not support the transformation of the Ontario Public Service. The Union does not have evidence to the contrary.

7. Each of the grievors retired after their TEI application was filed and remained pending.

a. Sue Hamilton applied for TEI on March 14, 2013 and retired on February 1, 2014. She was rehired into her former position of Human Resources Clerk on a fixed term contract on February 3, 2014 until January 1, 2016. She has worked on various contracts since that time. She returned to her former position of Human Resources Clerk which was renamed to Personnel Clerk position on a fixed term contract on September 30, 2019. It will be the Ministry’s evidence that her position of Personnel Clerk (Position # 00144753) at the Vanier Centre for Women continues to be required. The Union does not have evidence to the contrary.

b. Angeliki Zanotti applied for TEI on March 14, 2013 retired on October 31, 2014. It will be the Ministry’s evidence that her position of Librarian Technician, Regular Part Time (Position # 00022801) at the Vanier Centre for Women was filled after she left the position and continues to be required. The Union does not have evidence to the contrary.

c. Betti Fairley applied for TEI on November 3, 2014 and she retired on May 31, 2015. It will be the Ministry’s evidence that her position of General Records Clerk (Position #00022511) at the Maplehurst Correctional Complex was filled on December 7, 2015 and continues to be required. The Union does not have evidence to the contrary.

d. Carol Luckhardt applied for TEI on March 14, 2013 and retired on February 1, 2014. It will be the Ministry’s evidence that her position of Finance Admin Clerk (Position # 00145857) at the Vanier Centre for Women was filled until August 10, 2015 and then filled again from March 13, 2017 onwards and continues to be required. The Union does not have evidence to the contrary.

e. Brenda Moffat applied for TEI on March 14, 2013 and retired on February 1, 2014. It will be the Ministry’s evidence that her position of Social Worker (Position # 00146020) at the Vanier Centre for Women was filled and continued to be required. The Union does not have evidence to the contrary.

f. Deborah Maltby applied for TEI on March 14, 2013 and retired on February 1, 2014. It will be the Ministry’s evidence that her position of Program Clerk (Position # 00144744) at the Vanier Centre for Women was filled until October 26, 2015 and then again from May 1, 2017 to October 31, 2019. The Union does not have evidence to the contrary.

g. David Armstrong applied for TEI on October 21, 2013 and retired on September 1, 2014. It will be the Ministry’s evidence that his position of Maintenance Mechanic 3 (Position #00027034) at the Algoma Treatment and Remand Centre was filled and continues to be required. The Union does not have evidence to the contrary.

h. Harvey Hill applied for TEI on August 14, 2014 and retired on February 15, 2015. It will be the Ministry’s evidence that his position of Maintenance Mechanic 3 (Position #00174866) at the Central North Correctional Centre was filled and continues to be required. The Union does not have evidence to the contrary.

i. James Mullen applied for TEI on May 8, 2013 and retired on November 1, 2013. It will be the Ministry’s evidence that he returned to his position of Maintenance Carpenter (Position #00170509) at the Ontario Correctional Institute on a fixed-term basis on February 3, 2014. The position was filled and continued to be filled until September 28, 2018. The Union does not have evidence to the contrary.

j. Robert Murphy applied for TEI on March 8, 2013 and retired on July 1, 2014. It will be the Ministry’s evidence that his position of Mechanic 3 (Position #00136499) at the Quinte Detention Centre was filled on August 18, 2014 and continues to be required. The Union does not have evidence to the contrary.

8. It will be the Ministry’s evidence that the positions occupied by the grievors at the time of their TEI applications remained active, and each position continued to be required after their respective retirements. The Union does not have evidence to the contrary.

6The following ASF was submitted with respect to the Probation and Parole Officers:

1. A number of employees in various positions employed by the Ministry of the Solicitor General (the “Ministry”) working at various Probation and Parole Offices applied for TEI between January 2013 to December 2018 (the “TEI Applications”).

2. There were seven (7) individual applicants: Susan Corcoran, Penny Arp, Mike Reynolds, Denis Stortini, Dennis Ginter, Daniel Dawson, Patricia Wilkin. All of the individual applicants were working in Probation and Parole Offices and were classified at the Probation and Parole Officer 2 level (PPO2).

3. The Ministry did not approve any of the TEI Applications filed by the above noted employees.

4. The Union filed grievances between January 2013 and December 2018 on behalf of the above-noted employees whose TEI applications were not granted (the “TEI Grievances”).

5. For the purposes of these grievances, the Employer does not dispute that the requirements of paragraph 2(i) of Appendix 46 were met. This is without prejudice to other matters.

6. It would be the Ministry’s evidence that it did not grant the above-noted TEI Applications for the following reasons. At the time of the TEI Applications and the TEI Grievances, the Ministry had no intention of reducing the number of positions in the impacted Probation and Parole offices and in its opinion the exit of the above noted applicants would not support the transformation of the Ontario Public Service. The Union does not have evidence to the contrary.

7. Each of the grievors retired after their TEI application was filed and remained pending.

a. Sue Corcoran applied for TEI on October 15, 2013 and retired on December 31, 2014. She was rehired into a variety of FXT contracts including her former position between April 7, 2015 and August 30, 2017. Her position has continued to be filled. It will be the Ministry’s evidence that her position of Probation and Parole Officer (Position# 00024380) at the Kingston Probation and Parole Office continues to be required. The union does not have evidence to the contrary.

b. Penny Arp applied for TEI on March 7, 2013 and retired on January 29, 2014. She was rehired on an FXT contract in the Kingston Probation and Parole office on June 6, 2016 until July 9, 2016. Her position has been filled on an ongoing basis since her retirement. It will be the Ministry’s evidence that her position of Probation and Parole Officer (Position # 00016148) at the Kingston Probation and Parole Office continues to be required. The union does not have evidence to the contrary.

c. Dennis Ginter applied for TEI on January 10, 2014 and retired on July 1, 2014. It will be the Ministry’s evidence that his position of Probation and Parole Officer (Position # 00026791) at the Sault Ste Marie Probation and Parole Office was filled on July 1, 2014 and continues to be required. The union does not have evidence to the contrary.

d. Dennis Stortini applied for TEI on December 1, 2014 and retired on August 1, 2018. He was rehired on an FXT contract into a Court Services Officer position with the Ministry of the Attorney General. From 1980 until 1990, Mr. Stortini was employed and assigned as a Probation and Parole Officer in the Sault Ste. Marie Probation and Parole Office. From 1990 until 2018, Dennis Stortini held the assignment of Institutional Liaison Officer at the Northern Treatment Centre, which is an assignment classified as a Probation and Parole Officer 2, which he obtained by competition in 1990. Prior to that time, the ILO assignment had been rotated amongst probation and parole officers, generally on a 2-year rotation. From 1990 until approximately 2003 his assignment was exclusively that of Institutional Liaison Officer at the Northern Treatment Centre (which became the Algoma Treatment and Remand Centre). From 2003 until his retirement, Mr. Stortini held an assignment as a Probation and Parole officer at the Sault Ste. Marie Probation and Parole Office as well as the ILO assignment, with a reduced Probation and Parole caseload in order to facilitate the ILO assignment at the Algoma Treatment and Remand Centre. Since his retirement in 2018, the work of the ILO assignment has been redistributed to other probation officers, and the work is now assigned to Probation Officers on a rotational basis. It will be the Ministry’s evidence that his position of Probation and Parole Officer (Position # 00027133) at the Sault Ste Marie Probation and Parole Office continues to be required, that there was no reduction in the number of PPO2s, and that Stortini’s PPO2 position was filled on September 17, 2018 and continues to be required. The union does not have evidence to the contrary.

e. Mike Reynolds applied for TEI on April 22, 2013 and retired on January 1, 2014. He was rehired on a FXT contract on March 3, 2014 to Usher/Messenger with Ministry of the Attorney General. It will be the Ministry’s evidence that his position of Probation and Parole Officer (Position # 00024380) at the Brampton Probation and Parole Office was filled January 7, 2014 and continues to be required. The union does not have evidence to the contrary.

f. Daniel Dawson applied for TEI on April 8, 2014 and retired on January 31, 2015. It will be the Ministry’s evidence that his position of Probation and Parole Officer (Position # 00026675) at the Sudbury Probation and Parole Office was filled March 2, 2015 and continues to be required. The union does not have evidence to the contrary.

g. Patricia Wilkin applied for TEI on April 4, 2014 and retired on December 1, 2015. It will be the Ministry’s evidence that her position of Probation and Parole Officer (Position # 00026672) at the Sudbury Probation and Parole Office was filled December 7, 2015 and continues to be required. The union does not have evidence to the contrary.

8. It will be the Ministry’s evidence that the positions occupied by the grievors at the time of their TEI applications remained active, and each position continued to be required after their respective retirements. The Union does not have evidence to the contrary.

Appendix 46

7The relevant provisions of Appendix 46 are as follows:

1. All regular, regular part-time and flexible part-time employees will be eligible to apply to a Transition Exit Initiative (TEI).

2. An employee may request in writing voluntary exit from employment with the OPS under the TEI, which request may be approved by the Employer in its sole discretion. The Employee’s request will be submitted to the Corporate Employer. The Employer’s approval shall be based on the following considerations:

i. At the time that an employee TEI request is being considered, the Employer has plans to reduce positions in the OPSEU bargaining unit; and

ii. The Employer has determined in its discretion that the employee’s exit from employment supports the transformation of the Ontario Public Service.

iii. The Employer will consider whether employees are on the TEI list when making surplus decisions.

Analysis

8I have now issued a number of decisions on the scope of the Employer’s discretion to allow or deny a request for TEI: Koeslag, issued January 12, 2016, Vadera, June 28, 2018, Kimmel, November 29, 2018, Anich, August 9, 2019 and Klonowski et al, issued on November 6, 2019.

9All of the current Grievors applied for TEI, retired without their request having been granted and occupied positions that were filled upon their retirement. One grievor’s circumstance was slightly different and I will address his grievance separately: Mr. Stortini was replaced by another officer but his actual assignment as an Institutional Liaison Officer was rotated among several employees after he retired.

10The Union maintains that the Grievors’ requests were not fairly processed or administered because the Employer only considered the narrow issue of whether the position was still required or if they could reduce complement by eliminating the exiting employee’s position. The Union acknowledged that this is precisely the same issue that I considered in Klonowski et al, the most recent decision in the series of decisions under Appendix 46.

11While counsel for the Union recognised that the facts in this case were very similar, if not identical, to those considered in the previous decision, the Union maintained its position that management should have considered a broader range of factors in determining whether the Grievors’ exit would assist in the transformation of the OPS.

12While I continue to be sympathetic to the Union’s efforts on behalf of the Grievors, I can find no basis to distinguish these grievances from those that I have already dismissed. As set out in Klonowski et al, I have already found that:

… Appendix 46 confers a broad discretion on the Employer to determine whether granting a request for TEI would support its vision of transformation of the OPS: Koeslag, supra. While recognising that there may have been a number of different approaches that the Employer could have adopted with respect to transformation of the public service, it remains in the Employer’s sole discretion to decide whether an ‘employee’s exit from employment supports transformation’ and, in so doing, to determine which factors are relevant to the exercise of that discretion: Vadera, supra.

The Employer has consistently taken the position that its vision of ‘transformation’ focussed squarely on downsizing their workforce. They have offered the TEI as a targeted inducement to encourage employees to voluntarily retire or resign, allowing the Employer to eliminate a position without the need to surplus other employees who wish to remain. In earlier cases, I have determined that the Employer is entitled to that stance: Kimmel, supra and Anich, supra.

13With respect to Mr. Stortini, who held a half time assignment as an Institutional Liason Officer (“ILO”), the Union argued that the rotation of the ILO assignment among different Probation and Parole Officers after Mr. Stortini’s retirement was transformational. It argued that Mr. Stortini’s exit from the OPS permitted the Employer to “eliminate” the designated ILO position and transform the manner in which it assigned this work. Therefore, in its view, Mr. Stortini’s exit clearly supported transformation of the OPS and his request for TEI should have been granted.

14The Union maintained that Mr. Stortini’s departure was entirely foreseeable once he requested TEI and that the Employer was simply waiting for him to retire so that it could change the manner in which his work was assigned.

I note that Mr. Stortini initially filed his request for TEI in 2014 and did not retire until 2018. The timing of his request and the delay before his ultimate departure does not support the conclusion that the Employer was simply lying in wait for him to leave. In any event, the parties agree that Mr. Stortini was replaced and that his work continued to be performed, albeit on a rotational basis by different officers.

15Ultimately, I do not find that the decision to assign the ILO duties on a rotational basis after Mr. Stortini departed is a material difference that would lead me to alter the conclusion reached in Klonowski et al. The position was maintained, the work was still being done and the Employer therefore determined that its vision of transformation was not advanced by Mr. Stortini’s exit from the OPS.

16Absent evidence of bad faith or discrimination, I am not prepared to say that the Employer fettered its discretion when it failed to approve a request for TEI merely because it subsequently changed the manner in which it assigned work to the remaining employees after someone retired.

17Having considered the evidence and the submissions before me, I have concluded that the Employer properly exercised its discretion. All of the grievances currently before me are therefore dismissed.