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 (Bowman 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

March 4, 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 four grievances under consideration. Prior to their retirement from the Ministry of the Solicitor General (the “Ministry” or “SOLGEN”), the Grievors each requested enhanced severance benefits under TEI. The Employer considered their requests but did not approve them. As they have maintained in earlier cases, 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.

3The Employer stated that there was an ongoing need for the Grievors’ positions and that, therefore, in its opinion, their exit from the Ontario Public Service (“OPS”) did 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 has already been determined that the Employer properly exercised its discretion in similar circumstances.

Agreed Statement of Facts

4The parties submitted an Agreed Statement of Fact (“ASF”):

1. A number of employees in various positions employed by the Ministry of the Solicitor General (the “Ministry”) working in a number of institutions/workplaces applied for TEI between January 2013 to December 2018 (the “TEI Applications”).

2. There were four (4) individual applicants: Laurie Bowman (SO4); George Clarke (SO4); Mary Ann Craievich (Cook 2); and; Sandra White (OAG5).

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

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 employees in the impacted workplaces 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. Laurie Bowman applied for TEI on March 14, 2013 and retired on December 31, 2013. It would be the Ministry’s evidence that the position of Systems Analyst (Position #00027216) in Justice Technology Services was filled on October 12, 2015 and continues to be required. The Union does not have evidence to the contrary.

b. George Clarke applied for TEI on March 14, 2013 and retired on April 1, 2014. It would be the Ministry’s evidence that the position of Systems Analyst (Position #00027734) in Justice Technology Services was filled on May 9, 2016 continues to be required. The union does not have evidence to the contrary.

c. With respect to the Systems Analyst positions (Bowman and Clarke), it would be the Ministry’s evidence that although there was some operational delay in filling the positions, there was never an intention to reduce the number of Systems Analyst positions in Justice Technology Services, and the complement of Systems Analyst positions (four (4)) was the same before the retirements of Bowman and Clarke as it was after their positions were filled. It would also be the Ministry’s evidence that the Systems Analyst positions were not tied to particular locations and more particularly that the complement was distributed across Thunder Bay, North Bay, and Toronto both before and after the retirements and TEI applications. The Union does not have evidence to the contrary.

d. Mary Ann Craievich applied for TEI on January 24, 2014 and retired on July 1, 2014. She was rehired into a Cook 2 position at the Sarnia Jail on a fixed term contract on April 27, 2015 and has worked in various contracts since that time. It would be the Ministry’s evidence that the Ministry had five (5) Cook 2 positions at the time of Ms. Craievich’s retirement, and they continue to have the same complement today. The Grievor’s position of Cook 2 (position #00025530) at the Elgin-Middlesex Detention Centre was permanently filled on March 16, 2015 and continues to be required. The union does not have evidence to the contrary.

e. Sandra White applied for TEI on May 24, 2013 and retired on January 1, 2015. She was rehired into the Clerk Typist position solely as backfill on an irregular/on-call fixed term contract on January 1, 2015 and remains in this position today. It would be the Ministry’s evidence that they had two (2) Clerk Typist positions prior to Ms. White retirement, and continue to have the same complement today. Both Clerk Typist have been used to accommodate other employees at EMDC. For example, a Correctional Officer was accommodated in Ms. White’s position from early 2015 until October 2016, after which it was filled on a contract basis in November of 2016 and thereafter filled permanently in March of 2017. Since her retirement, Ms. White would provide backfill for either Clerk Typist, and the need for two Clerk Typists continues to this day. The union does not have evidence to the contrary.

Appendix 46

5The 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.

Analysis

6There are a number of decisions regarding 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, Klonowski et al, issued on November 7, 2019; Fairley et al., issued on February 12, 2020 and Alcock et al. issued on March 2, 2020.

7As set out in Klonowski, I have consistently found that the Employer has not fettered its discretion on the basis that the Union now advances:

…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.

8As acknowledged by both the Union and the Employer, all of the current grievors are in substantially the same position as those recently considered in Klonowski, Fairley and Alcock: they applied for TEI, retired without their request having been granted and occupied positions that were filled upon their retirement.

9The Union repeated its earlier arguments that the TEI requests were not fairly processed or administered because the Employer had 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 took the position that transformation had a broader meaning and that other factors should have been considered in determining whether the Grievors’ exit would assist in the transformation of the OPS. In particular, the Union points out that in this case the Employer was able to use the position vacated by Ms. White to accommodate other employees and could deploy the positions of Ms. Bowman and Mr. Clarke in other locations once they retired, thus creating efficiencies and flexibility to meet the Employer’s operational needs.

10I have already considered similar arguments in a number of instances and determined that the Employer has not violated Appendix 46 or fettered its discretion in comparable circumstances. Despite its arguments, the Union acknowledged that there was nothing that distinguished these cases from the earlier matters that have already been decided and dismissed. Accordingly, I am not persuaded that there is any basis on which these grievances should be allowed.

11The grievances are dismissed.