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 (Cullen-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

June 3, 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 filed by employees in various positions with the Ministry of Children, Community and Social Services (“MCCSS”).

3The facts in this matter are not disputed and follow the same pattern as in a number of previous grievances. The Grievors requested enhanced severance benefits under TEI; the Employer considered their requests but did not approve them. As argued in earlier cases, the Union alleges that the Employer failed to properly process and administer the requests. Specifically, the Union submits that the Employer fettered its discretion by relying on a narrow set of considerations to the exclusion of other relevant factors.

4The Employer maintains that this is the same argument that has been advanced and dismissed in earlier cases. In its submission, the Board has already determined that the Employer is entitled to exercise its discretion in the manner currently challenged by the Union.

Agreed Statement of Facts

5The facts were agreed as follows:

1. A number of employees in various positions employed by the Ministry of Children, Community and Social Services (MCCSS) (the “Ministries”) working at the Sprucedale Youth Centre applied for TEI between January 2013 to December 2018 (the “TEI Applications”).

2. There were four (4) individual applicants: Douglas Cullen, Youth Services Officer, Barbara Fearman, Purchasing/Sales Clerk, Gary Garniss, Food Services Officer, and Linda Lauchlan, Chief Records Clerk.

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 Ministries’ 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 or positions in the impacted workplaces and the exit of the above noted applicants would not have supported 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.

MCCSS:

a. Douglas Cullen applied for TEI on February 2, 2016 and retired on December 1, 2016. It would be the Ministry’s evidence that the position of Youth Services Officer (Position# 00023760) at the Sprucedale Youth Centre was filled on December 5, 2016 and continues to be required. The union does not have evidence to the contrary.

b. Barbara Fearman applied for TEI on March 19, 2013 and retired on January 1, 2014. It would be the Ministry’s evidence that the position of Purchasing/Sales Clerk (Position #00023730) at the Sprucedale Youth Centre was filled on January 20, 2014 and continues to be required. The union does not have evidence to the contrary.

c. Gary Garniss applied for TEI on May 23, 2016 and retired on May 23, 2017. It would be the Ministry’s evidence that the position of Food Services Officer (Position #00023750) at the Sprucedale Youth Centre was filled on May 8, 2017 and continues to be required. The union does not have evidence to the contrary.

d. Linda Lauchlan applied for TEI on March 21, 2014 and retired on January 1, 2015. It would be the Ministry’s evidence that the position of Chief Records Clerk (Position #00023731) at the Sprucedale Youth Centre was filled on December 29, 2014 and continues to be required. The union does not have evidence to the contrary.

Appendix 46

6The 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:

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

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

5. The Employer will consider whether employees are on the TEI lists when making its decisions.

Analysis

7I have now issued several 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, Klonowski et al, November 7, 2019 and Fairley et al., February 12, 2020, Alcock et al., March 2, 2020 and Bowman et al., March 9, 2020.

8The Union and the Employer agreed that the current grievors are in the same position as those considered in earlier grievances, all of which were dismissed. Nonetheless, the Union repeated its previous arguments that the TEI requests were not fairly processed or administered. Specifically, that the Employer erred when it only considered the narrow issue of whether the position was still required and whether the existing complement could be reduced by eliminating the exiting employee’s position.

9The Union continued to take the position that Appendix 46 supports consideration of a broader range of factors to determine whether an employee’s exit would assist in the transformation of the OPS. For example, counsel noted that these Grievors were prepared to leave the OPS early, which would have permitted the Employer to replace them with more junior, and less costly, employees. Their departure would have thus permitted a more flexible approach to staffing that would clearly have assisted with transformation of the OPS. In the Union’s submission this meets the requirements and spirit of Appendix 46.

10There was no suggestion by the Union that any of the TEI applications in this instance were denied as a result of bad faith or discrimination, or that other, more junior employees in the same workplace, were granted TEI at the expense of the Grievors.

11As I have previously stated, while I continue to be sympathetic to the Union’s efforts on behalf of the Grievors, I have already found in Klonowski et al, supra, 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.

12Having considered the evidence and the submissions before me, I can find no basis to distinguish these grievances from those that I have already dismissed. Therefore, I have concluded that the Employer properly exercised its discretion and the grievances are dismissed.