GSB# 2019-2121

UNION# 2019-5112-0231

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Cheriakara)

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 and September 28, 2020 (by videoconference)

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 (now, the Ministry of Children, Community and Social 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.

7Joseph Cheriakara is a Correctional Officer at the Toronto South Detention Centre who filed a grievance on October 28, 2019 claiming that the Employer has improperly noted his start date as March 12, 2018. He seeks the rectification of his date of hire back to when he first commenced working for the Ontario Public Service ("OPS").

8According to the Grievor, he started working for the OPS as a Fixed Term ("FXT") Food Service Helper at the TSDC on April 7, 2015, and worked in that capacity until October 25, 2015. He was a FXT Cleaner 2 at the TSDC from October 26, 2015 to March 11, 2018. On March 12, 2018 he became a FXT Correctional Officer at TSDC. The Grievor concedes that he was told that in order to take a job as a FXT Correctional Officer, he would have to resign from his Cleaner position, and he did so.

9After considering the facts and submissions made by the parties I am of the view that this grievance must fail. There is nothing in the collective agreement that entitles an employee to transfer his service and seniority from one position to a new position as a fixed term CO. As well, nothing in the collective agreement obliges the Employer to allow an employee to hold two different positions within the Ontario Public Service.

10In this case, the Employer required the Grievor to make a decision as to which position he wanted. Having made that decision, the Grievor resigned from his position as a Cleaner 2, and there was therefore a break in his service before he was re-hired as a fixed term CO. Article 18.4 states that "Continuous service shall be deemed to have terminated if: (a) an employee resigns or retires; …". In accordance with Article 18.4, the Grievor's resignation deems his continuous service up to that point to have terminated, and he began anew as a fixed term CO. As such, I find that the date he was hired as a fixed term CO is correct.

11This issue has been determined by the Board on a number of occasions including in the following decisions: OPSEU (Wiles) v. Ontario (MCSCS), GSB#2016-0300, 2016-0695, 2016-0696, December 6, 2016 (Briggs); OPSEU (Sutherland) v. Ontario (MCSCS), GSB#2016-0461, September 11, 2017 (Briggs); and, OPSEU (Bourgeois) v. Ontario (MCSCS), GSB#2017-0503, November 6, 2017 (Briggs). Nothing on the facts before me in this case make the Grievor's situation any different from those cases. This is simply an application of the terms of the collective agreement.

12For the reasons outlined above, this grievance is denied.