IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Clark)

Union

and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Brian P. Sheehan

Arbitrator

FOR THE UNION

Gregg Gray Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

James Cheng Treasury Board Secretariat Employer Relations Advisor

HEARING

February 11, 2020

Decision

1The Employer and the Union at the Niagara Detention Centre agreed to participate in the Expedited Mediation/Arbitration process in accordance with the negotiated Protocol. It is not necessary to reproduce the entire Protocol. Suffice to say, that the parties have agreed to a True Mediation/Arbitration process wherein each party provides the Arbitrator with their submissions setting out the facts and the authorities they respectively will rely upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement; and it is without prejudice or precedent.

2The grievor David Clark is employed as a Correctional Officer 2 at the Niagara Detention Centre. He has over 35 years of seniority with the Employer.

3The grievances filed by the grievor involve three different matters, which will be dealt with separately.

Grievances 2018-0252-0024, 2018-0252-0025

The Merits of the Grievances

4Grievance 2018-0252-0024 relates to an alleged failure of the Employer to call in the grievor regarding an activation of an Institutional Crisis Intervention Team (ICIT) Deployment on June 13, 2018. As of that date, it is not disputed that the grievor’s certification to perform ICIT duties was not up to date.

5The Union and the grievor agree that given that the grievor’s ICIT certification was not up to date, there was no obligation upon the Employer to consider the grievor for the five member ICIT unit that was deployed. It is asserted, however, that pursuant to the Employer’s Handheld Digital Video Recording – Institutional Crisis Intervention Team Deployment policy that the grievor should have been utilized as the Video Camera Operator regarding this particular ICIT deployment. In particular, the Union relies on the following sections of that Policy:

6.1 Prior to an ICIT Activation and Deployment

6.1.1 In the event of an ICIT deployment, a Video Camera Operator (see 4.6) is assigned to video record the deployment.

6.1.2 The role of Video Camera Operator is to be performed by correctional staff who have received orientation on the use of handheld digital video recording equipment.

6.1.3 The roll should be assigned in the following order, based on availability:

a. a member of ICIT (above the five-member team complement); or

b. a former member of ICIT; or

c. a correctional officer

The Union asserts that undeniably the grievor was a former member of ICIT at the time, so he should have been given the opportunity to perform the work rather than the Employer calling in an ICIT member from the Hamilton Wentworth Detention Centre.

6The primary position of the Employer with respect to the merits of this grievance is that the assignment of personnel to an ICIT deployment is at the discretion of the Employer, and there is no collective agreement language or binding agreed-to protocol which dictates the procedure as to which certified ICIT members are to be utilized with respect to a particular incident. Moreover, it is asserted that there is no obligation upon the Employer to first provide ICIT deployment opportunities to employees at the particular institution where the incident is taking place. Further to this point, it is asserted that it was perfectly appropriate for the Employer to select an active ICIT member to perform the Video Camera Operator duties even if that individual was based out of the Hamilton Wentworth Detention Centre.

7Grievance 2018-0252-0025 relates to the failure to call in the grievor for ICIT deployment on July 8, 2018. (By that date the grievor had updated his ICIT certification). On that date, the grievor was not working. He received a call from Sergeant Oliver Mohan inquiring as to whether he was willing to come in to work for an ICIT deployment that was taking place. The grievor claims he advised Sergeant Mohan that he had company at his house; but that, he would call back in five minutes as he may be able to make arrangements to allow him to come into work. According to the grievor when he called back five minutes later Sergeant Mohan advised that he had filled the ICIT unit for the deployment in question. The grievor asserts that he then advised Sergeant Mohan that if the incident escalated, and there was the need for more ICIT members, to call him as he would make himself available. The Employer did, in fact, later that day, call in additional ICIT members based out of the Hamilton Wentworth Detention Centre to deal with the incident.

8The Union asserts that the Employer was obligated to offer this overtime opportunity to the grievor. In furtherance of this point, the Union relies on Article COR8.2.1 of the collective agreement, which, in the view of the Union, suggests that overtime should be distributed fairly and equitably to employees at the local workplace.

9The position of the Employer with respect to the merits of this grievance is in accord with its position regarding Grievance 2018-0252-0024.

The Timeliness Issue

10The grievances were not filed by the grievor until September 7, 2018. The Employer therefore asserts that the grievances should be dismissed for want of jurisdiction as they were not filed in a timely matter. In particular, both grievances were filed outside the 30-day window for filing grievances set out at Article 22.2 of the collective agreement.

11It is accepted that pursuant to Article 22.14.7 of the collective agreement, I have the discretion to waive the non-compliance with the time limits set out in the grievance procedure pursuant to [Section 48(16)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l2/latest/rso-1990-

Ontario Public Service Employees Union (Clark) v. The Crown in Right of Ontario (Ministry of the Solicitor General), 2020 CanLII 32580

Case Summary

IN THE MATTER OF AN ARBITRATION

BETWEEN

Union