GSB#2017-3776; 2017-3777; 2017-3778; 2017-3779; 2017-3780; 2017-3781

UNION#2017-0579-0011; 2017-0579-0012; 2017-0579-0013; 2017-0579-0014;

2017-0579-0015; 2017-0579-0016

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Jacobs et al)

Union

• and -

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

Employer

BEFORE

Dale Hewat

Arbitrator

FOR THE UNION

Brett Hughes Dewart Gleason LLP Counsel

FOR THE EMPLOYER

Braden MacLean Treasury Board Secretariat Legal Services Branch Counsel

HEARING

January 13, February 19, July 14, 2020 and September 15, 2020

Decision

1These Grievances came before me under s.22.16 of the Collective Agreement. This case was heard on January 13, February 19, July 14, and September 15, 2020. The parties agreed to extend the time-limit for issuing a decision under s.22.16 of the Collective Agreement given the nature and scope of the issues and evidence before me. The parties also agreed to bifurcate the case. This decision is only on the merits, leaving arguments on remedy to be provided in the future, depending on the outcome. Currently, January 14, 2021, if required, is scheduled for a hearing to consider remedy.

2In an earlier decision in this case dealing with preliminary matters (Ontario Public Service Employees Union (Jacobs et al) v Ontario (Solicitor General), 2020 CanLII 14810 (ON GSB)), I ordered that “For the purpose of dealing with timeliness and scope of the grievances, the timeframe for considering all issues pertaining to attendance credits, posting and filling of vacancies and conversion from Fixed-Term to regular full-time positions shall go back until May 14, 2016, subject to the parties confirming on February 19, 2020 the exact date for conversion based on the timing of pay cycles”. The Union also agreed that any determination on remedy will be limited to 30 days prior to the filing of the grievances. During the hearing, I allowed evidence that pre-dated the outlined timeframe for the purpose of reviewing relevant information about the history of the workplace, management staffing reviews, organizational charts, and related outcomes. In addition, evidence was heard pertaining to prior conversions in 2005 of Fixed-Term employees to regular full-time service.

3The Grievors, Stephen Knapp, Dan Stanhope and Jermaine Jacobs, were employed for the following periods pursuant to consecutive six-month Fixed-Term employment contracts as Operations Officers classified as “Fire Service Advisor 1” (“FS1”), in the Provincial Emergency Operations Centre (PEOC), operated by the Ministry of Community Safety and Correctional Services (MCSCS):

a. Stephen Knapp: July 28, 2003 to June 3, 2018

b. Dan Stanhope: November 16, 2009 to June 3, 2018

c. Jermaine Jacobs: January 7, 2013 to June 3, 2018

4In January 2018, the Grievors were notified that their Fixed-Term contracts would not be renewed in June 2018 and they were encouraged to apply for new permanent Emergency Management Duty Officer positions at PEOC that had been posted and classified as an Office Administration 10 (“10OAD”). The Grievors applied for the Duty Officer positions, were successful applicants and hired as full-time employees commencing June 4, 2018. It was not disputed by the parties that the substance of the work performed at the duty desk did not change, and in fact, it was also not disputed that the amount of work within PEOC, including the duty desk, had increased over the years during the Grievors’ respective tenures.

5These grievances were filed on December 12 and 16, 2017. The three issues that I need to decide are as follows:

i. Did the Employer violate the vacancy provisions under Article 6 of the Collective Agreement by failing to post and fill vacancies that existed in the operations of PEOC?

ii. Did the Employer violate the conversion provisions under Article 31A.15 of the Collective Agreement by not converting the Grievors to positions in the regular service after assessing the conversion criteria based on the 18-month period starting on May 14, 2016?

iii. Did the Employer fail to provide attendance credits to the Grievors pursuant to Article 31A.8 of the Collective Agreement?

6During the course of the hearing, the 3 Grievors testified. On behalf of the Employer, I heard testimony from Jason Redlarski, Acting Program Manager at PEOC, Randi Thompson, the Grievors’ direct Supervisor until 2017, Randy Reid, Deputy Chief of Business Support Services for Fire Marsal and Emergency Management (“OFMEM”) and Aileen Cassells, the Deputy Chief of Emergency Management Operations responsible for OFMEM, PEOC and the Ontario Public Service Emergency Management Program.

The Facts

PEOC

7PEOC is the Ontario government’s hub for collecting, analyzing, and distributing information about potential and declared emergencies to coordinate the Provincial response. During the Grievors’ employment as Fixed-Term employees, PEOC Operations Officers were assigned to one of two sections: the “duty desk” section which focuses on day-to-day information monitoring and distribution; and the “projects” section, which focuses on a variety of longer-term and one-off projects, such as planning for and monitoring Ontario’s Pan and Para-Pan American Games (the “Pan-Am Games”) in the summer 2015. The Grievors primarily worked as Operation Officers at the duty desk, which is staffed 24 hours per day, 7 days per week, 365 days per year (“24/7/365”). In terms of staffing hours, the duty desk requires at least 8,760 work hours annually, or at least 4.6 full time equivalent positions (FTEs).

8The following list, which is not exhaustive, sets out some of the regular tasks that the Grievors, as Operations Officers, performed on an on-going basis:

a. Monitoring information sources to identify emergency risks and actual emergencies.

b. Providing information to senior officials and other stakeholders about potential and declared emergencies.

c. Analysing information to conduct risk assessments and identify possible impacts of potential and declared emergencies.

d. Initiating a public warning system for emergencies.

e. Contributing to post-emergency review processes.

f. Compiling historical data on emergencies.

9In 2015, a Staffing Study and Analysis (the “Staffing Study”) was prepared by OFMEM which stated in its executive summary that: “The Operations group of the Response Section, Office of the Fire Marshal and Emergency Management requires an increase in staffing in order to adequately respond to the increased duties and responsibilities that have evolved over the last 10 years and the anticipated increase in new responsibilities and tasks”. The Staffing Study noted that since 2003, PEOC has been staffed by a Program Manager (supervisor) reporting to a Deputy Chief or Director and 5 full-time Operations Officers, 2 assigned to working rotating 12 hours duty shifts and 3 working on project-related duties, administration and surge duties for exercises and emergencies. In addition to the full-time Operations Officers, the Staffing Study stated that the core group of personnel is supplemented by 7 Casual Operations Officers (part-time 6 month contract positions) who backfill for vacancies and are utilized to staff PEOC during emergency activations, exercises and special projects. The Staffing Study made three recommendations ranging from maintaining the status quo, converting the existing 5 Temp/Casual positions to permanent or increasing permanent Duty Officers. Mr. Redlarski, testified that he provided input into the draft Staffing Study, reflected in his notes on a draft version of the Study. He agreed that PEOC had not been adequately staffed during a 10-year period in which there had been steady increases in responsibility of the Operations Team including that of the duty desk. At pages 17 and 18 of the Staffing Study, 2 of the illustrated proposals show the Grievors included in the column representing permanent full-time Operations Officer positions.

10In addition to the Staffing Study, in October 2015, a consulting company, Landsdowne Technologies, was hired by the Fire Marshal and Chief’s Office to perform a third-party review of emergency management in Ontario focusing on ongoing improvement, protecting public safety and adapting to the impacts of climate change. The review began in 2016 and was completed in 2017 with a report provided to the Minister of Community Safety and Correctional Services. According to Ms. Cassells, the report did not result in any additional funding for Emergency Management Operations or PEOC.

11In 2017, the Auditor General of Ontario identified that it would be conducting an audit of emergency management in Ontario. As a result of the audit, in December 2017 the Emergency Action Plan was approved by Cabinet in which OFMEM received funding to hire additional staff to deliver on the commitments of the Emergency Action Plan. Ms. Cassells, testified that this additional funding was reflected in the round of hiring which began in 2018 in which 8 Emergency Management Duty Officer positions, posted on January 16, 2018 were ultimately filled, with the Grievors filling 3 of the positions starting in June 2018. In terms of the remaining 2 PEOC full-time Operations Officers, Mr. Redlarski testified that their positions were not reclassified as a need remained for higher level Officers to lead and coordinate projects and program business plan objectives, as necessary.

The Grievors’ Hours of Work

12The PEOC duty desk schedule is set annually showing all employees’ schedules for the duration of a year. To provide coverage 24/7/365 days per year, the schedule was and continues to be organized as 4 days on and 4 days off scheduling. This schedule requires employees to work two 11.5-hour daytime shifts and two 12.25-hour nighttime shifts, followed by 4 days off. It was not disputed that the design of the 4 days on and 4 days off schedule resulted in the Grievors routinely working overtime hours. For example, Mr. Stanhope testified that his basic “tour of duty” would be 47.5 hours per week when the 4 days on duty fell within the same week or a shorter period, where the hours fell in different weeks. While other full-time Operations Officers were offered the option to sign compressed-work-week arrangements from time to time, the Grievors, as Fixed-Term employees, were not given this option.

13According to Mr. Redlarski, the Grievors were employed in Temporary Management Officer Casual positions pursuant to several Fixed-Term contracts typically of six months duration without providing a guarantee of hours. He stated that it was his understanding that the Fixed-Term employees were used as a pool to be drawn upon to fill in operational needs and temporary gaps in scheduling. While the Employer tried to take the position that the Grievors’ contracts did not guarantee hours of work, pointing to their WIN contracts which do not state the number of hours of work, Mr. Redlarski agreed in cross-examination that, in practice, the Grievors sometimes worked 40 hours a week or more depending on operational needs. Having reviewed the annual schedule of 2017, provided as an exhibit to represent scheduling, the Grievors’ pay stubs together with Mr. Redlarski’s admissions in cross-examination, I find that the Grievors, subject to shift swaps or scheduled time off, regularly worked full time hours during their tenures as Fixed-Term Operations Officers. Additionally, although the Grievors’ Fixed-Term contracts were 6 months in duration, given that contracts were renewed year after year and the Grievors were scheduled to work full-time hours, it cannot be reasonably concluded that their work was “temporary” or “casual” in nature. In support of this conclusion, I prefer the Grievors’ testimony about the continuous nature of their series of contracts and hours of work in contrast to Mr. Redlarski’s testimony that the Grievors work was intended to fill in a temporary gap in need or scheduling despite him acknowledging that Mr. Knapp’s tenure, for example, was more than 14 years having joined PEOC in 2003.

14The Employer’s records show that the Grievors worked the following hours over the time periods listed below:

1. Mr. Stanhope worked 2,522.50 straight time hours and 200.75 overtime hours between May 22, 2016 and November 21, 2017.

2. Mr. Knapp worked 2,338.75 straight time hours and 223.25 overtime hours between June 4, 2016 and December 3, 2017and 2,456 straight time hours and 268.75 overtime hours between September 12, 2016 and March 11, 2018.

3. Mr. Jacobs worked 2,534.25 straight time hours and 149 overtime hours between June 20, 2016 and December 19, 2017 and 2, 569.75 straight time hours and 163.25 overtime hours between October 10, 2016 and April 9, 2018.

Pursuant to their fixed-term contracts, the Grievors did not have paid vacation days, but were instead paid 4.6% and 4% in-lieu of holidays and vacation, respectively.

15The Grievors testified that their hours of work exceed the numbers in the Employer’s records by relying their pay stubs and the Employer’s shift planning tool. Using Mr. Stanhope’s evidence as representative of the Grievors’ positions, he claimed that for the 18-month period starting May 22, 2016 and ending November 21, 2017, he worked 2857.75 hours, which included overtime hours. In addition, Mr. Stanhope claimed that for that same period he took 12 authorized leaves of absence from work resulting in an additional 146.25 lost work hours which would bring his total hours for that same period to 3,004. With respect to leaves of absence from work, which was not disputed, Mr. Stanhope claimed that Management did not require Fixed-Term employees to request leaves of absence with reference to specific statutory or collective agreement provisions or purposes or to provide documentation to support leave requests. From his perspective, Mr. Stanhope described that management authorized all leave requests if coverage could be obtained and coded all days off as vacation, regardless of purpose. He also noted that sometimes leave of absence requests were recorded in the shift planning tool, and sometimes they were verbally approved.

16All of the Grievors also testified that when they initially worked at PEOC, they were provided with attendance credits for each calendar month of full attendance. However, starting in early 2015, the Employer stopped issuing attendance credits. The Grievors took the position that, in addition to their authorized leaves of absences, they should have been receiving accrued attendance credits which would have covered absences and should have been applied toward accrual of hours required for conversion purposes under Article 31A.15 of the Collective Agreement.

Vacancies

17In 2015, the Employer employed 2 full-time permanent Operations Officers for the duty desk section of PEOC; Reginald Foulds and Terry Claydon. The Grievors shared one of the Employer’s organizational charts from 2015, which lists 2 Operations Officers positions as vacant. An OFMEM Management Structure labelled “New-Effective June 6, 2016” was also introduced into evidence which includes the same chart from 2015 showing the 2 vacant Operations Officers positions. In late 2016, Mr. Foulds retired and another full-time permanent Operations Officer with PEOC was promoted to Management. In early-mid 2017, Mr. Claydon retired. Throughout the remainder of 2017, these five vacant positions remained unfilled. An Emergency Management-Field Operations & Training chart, dated October 31, 2019 also shows three vacant PEOC Operations Officer FS1 positions as vacant.

18Testifying on behalf of the Employer, both Ms. Cassells and Mr. Thompson stated that the positions marked vacant on the organizational charts referred to in the preceding paragraph were placeholders. In this regard, they explained that the fact that the positions are referred to as “vacant” on the charts does not mean that Management had the necessary funding or approvals to fill these positions, nor is it indicative that Management’s intention was to fill them. According to their testimony, when employees departed PEOC, duties were reassigned to remaining employees to ensure that the duty desk was always covered.

19Ms. Cassells also explained that historically, after the creation of OFMEM in 2010, there was significant pressure to reduce spending and not hire new staff despite departures and the continued need for work. Ms. Cassells noted that it was not until the additional funding was received in late 2017, as a result of the Auditor General’s report, when PEOC was restructured that it was able to hire more full-time permanent employees.

Postings

20On August 18, 2016, Mr. Thompson sent an email to a subset of Operations Officers, including the Grievors, to advise that MCSCS would be posting one permanent and several “casual” Operations Officer positions. The posting for the permanent position- Job Code 05700 -Fire Services Advisor 1, was posted on August 19, 2016 and stated that the role requires “working rotating shifts of 12 hours (2 day, 2 night) in the 24/7/365 in PEOC and surge capacity of emergency reasons”. It was not disputed that this posting was to fill a role at the duty desk. On August 23, 2016, MCSC posted four “casual” Operations Officers Positions – Job Code 05700 – Fire Services Advisor 1. All these postings were cancelled in October 2016. Ms. Cassells testified that in October 2016, a new Director of Emergency Management, Mike Morton, was hired and that he was interested in restructuring PEOC. He asked Ms. Cassells to cancel the postings until the reorganization was complete, and she in turn, told Mr. Thompson to remove the postings because they had not been approved by upper Management.

21Despite the postings being cancelled, Mr. Thompson confirmed, in his testimony, that there was a staffing shortage at PEOC and noted that there were too many casual employees in comparison to the full-time permanent employees. Mr. Thompson was the person responsible for issuing these postings and indicated that his Director had given approval for them. Mr. Thompson explained that he believed that the postings resulted from the need to back-fill the retirement either of Mr. Foulds or Mr. Claydon. He also questioned why Mr. Morton had ordered that the postings be pulled remarking that Mr. Morton had no authority to hire and agreed that the reason for pulling the postings was not because the work went away.

Expectations regarding Conversion to full-time regular service

22Mr. Stanhope and Mr. Knapp testified that around the time the 2015 Staffing Study was distributed, Mr. Thompson told Fixed-Term employees that he was “working on” getting them converted to full-time regular service and that he expected this to happen within a few months. Mr. Jacob’s testimony differed slightly because he recalled that when he asked Mr. Thompson about conversion, Mr. Thompson replied that he hadn’t heard anything, but that Management was looking into it and that Mr. Jacobs would be told when conversion became possible. Generally, from the Grievors’ perspective, despite Mr. Thompson’s assurances about conversion, MCSC did not convert their status to full-time regular service. In addition, the Grievors claimed that there was no mention, until the Employer’s response to these grievances, that they had worked insufficient hours or that overtime hours would not be included when determining their eligibility for conversion. Furthermore, the Grievors relied upon evidence of other Fixed-Term Operations Officers, being converted to full-time service back in 2005, claiming that such officers could only have been eligible for conversion by counting their overtime hours. In response to the Grievors’ testimony. Mr. Reid, who was the manager in 2005, responsible for conversions of 2 Fixed-Term employees testified that he recalled that those individuals were converted because they met the threshold hours for conversion under Article 31A.15, which at the time was 1,912 annual straight time hours over an 18-month period. Mr. Reid qualified his testimony by advising that he was not able to review any records that would have referenced the hours worked by the 2 employees over the 18-month period back in 2005. Mr. Thompson also testified that he was not aware of an employee being converted to full-time regular service without fulfilling the hours requirement under the Collective Agreement and that he had advised staff that roll-over to regular service was based on straight-time/regular hours. He added that at no time did he tell the Grievors that they would convert to full-time regular service.

23The Grievors also testified that they had individual meetings with Ms. Cassells in February 2017. Mr. Stanhope and Mr. Knapp both stated that Ms. Cassells told them they had overstayed their welcome at PEOC and to consider looking for other positions. Additionally, Mr. Knapp claimed that Ms. Cassells remarked that they were looking for young blood and that he should look for other positions. Mr. Stanhope also claimed that in a meeting with Mr. Redlarski in February 2017 mention was made that Management was looking for more youthful employees. Mr. Redlarski and Ms. Cassells denied making such statements to Mr. Stanhope and Mr. Knapp. Mr. Jacobs stated that in his meeting with Ms. Cassells, she told him that he would not be converted into a permanent position because Management had decided to go in a different direction and that he would need to compete for a positing like everyone else.

Collective Agreement Provisions

24The following sections of the Collective Agreement are relevant to this case:

ARTICLE 31 – FIXED-TERM EMPLOYEES

31. The only terms of this Agreement that apply to employees who are not

regular employees are those that are set out in Articles 31A, 32, 33 and 34.

31A.8 ATTENDANCE CREDITS AND SICK LEAVE

31A.8.1 Employees who work thirty-six and one-quarter (36¼) or forty (40) hours per week shall earn attendance credits of one and one quarter (1¼) days for each calendar month of full attendance or for each calendar month of leave of absence granted under Article 31A.9 (Pregnancy and Parental Leave). Attendance credits may be used for protection purposes only in the event that an employee is unable to attend to his or her official duties by reason of illness or injury. However, accumulated attendance credits earned prior to April 1, 1978 may be transferred to the Regular Service when the appointment to the Regular Service is made from continuous, unbroken, full-time fixed-term Service.

For clarity, where a fixed-term employee uses an attendance credit the hours covered by that credit will be counted as ‘attendance’ for the purposes of this Article.

31A.15 CONVERSION OF FIXED-TERM POSITIONS TO POSITIONS IN THE REGULAR SERVICE

31A.15.1.1 Where the same work has been performed by an employee in the Fixed-Term Service for a period of at least eighteen (18) consecutive months, except for situations where the fixed-term employee is replacing a regular employee on a leave of absence authorized by the Employer or as provided for under the Central Collective Agreement, and where the ministry has determined that there is a continuing need for that work to be performed on a full-time basis, the ministry shall establish a position within the Regular Service to perform that work.

31A.15.1.2 Where the ministry has determined that it will convert a position in accordance with Article 31A.15.1.1, the status of the incumbent in the position will be converted from fixed-term to regular, provided that the incumbent has been in the position in question for at least eighteen (18) months and provided the position has been cleared through surplus.

31A.15.1.3 For the purpose of Article 31A.15, “full-time” shall mean a minimum of one thousand seven hundred and twenty-five and a half (1,725.50) straight-time hours or one thousand nine hundred and four (1,904) straight-time hours in each year, as applicable, including authorized leaves of absence. However, all hours worked by a fixed-term employee while he or she is replacing a regular employee who is on an authorized leave of absence shall not be included in computing the annual hours worked by the fixed-term employee.

31A.17 SENIORITY ACCUMULATION FOR FIXED-TERM EMPLOYEES FOR THE PURPOSE OF FILLING VACANCIES OR NEW POSITIONS

31A.17.1 Notwithstanding Article 18.1(b), a fixed-term employee shall be entitled to have their service counted towards the accumulation of seniority on the same basis under Article 18.1 and Article 18.4 before he or she is appointed to the Regular Service for the sole purpose of any determination made by the Employer under Article 6.3 (Posting and Filling of Vacancies or New Positions), if applicable. For this specified purpose, fixed-term employees shall be entitled to have their service counted towards the accumulation of seniority based upon one thousand seven hundred and twenty-five and a half (1,725.50) straight time hours or one thousand nine hundred and four (1,904) hours, as appropriate, counting as equivalent to one year’s service, or pro-rated to the equivalent of less than one year as appropriate.

ARTICLE 6 – POSTING AND FILLING OF VACANCIES OR NEW POSITIONS (RPT, FPT)

6.1.1 When a vacancy occurs in the Regular Service for a bargaining unit position or a new regular position is created in the bargaining unit, it shall be advertised for at least ten (10) working days prior to the established closing date. Notices of vacancies shall be posted either electronically or on bulletin boards and, upon request, shall be provided in large-sized print or braille where the posting location has the capacity to do so. (FXT, SE)

6.1.2.1 Notwithstanding Article 6.1.1 above, the Employer may hire qualified candidates in rank order who previously applied for the same vacancy or 13 new position provided that a competition was held during the previous fourteen (14) months following the closing date of the posting and was within 125 kilometres of the work location of the previously posted position, and provided that the position has cleared surplus. The Employer in these circumstances is not required to post or advertise the vacancy or new position. Where the Employer uses this provision, it shall notify the Local Union President where the vacancy or new position exists, five (5) working days prior to filling the vacancy or new position. The five (5) working day period can be waived with mutual agreement by the parties.

(FXT, SE)

6.1.2.2 Candidates that decline a job offer under Article 6.1.1 shall continue to retain their rank on the eligibility list for future vacancies or new positions filled under Article 6.1.2.1. Where the Employer uses the provisions set out in Article 6.1.2.1, a candidate being offered a position may, at his or her option, decline the position and the position will be offered to the next highest ranked candidate. Once a position has been accepted by the candidate, he or she will no longer be considered for future vacancies or new positions based on the original competition.

The Employer shall establish an eligibility list of qualified candidates for

each position based on the results of a competitive process. The Employer is not required to fill positions through Article 6.1.2.1 when exercising its discretion to fill a vacancy. The eligibility list shall only be shared with the respective Local Union President where the vacancy or new position exists when the Employer reaches back to a competition for the first time. (FXT, SE)

6.2 The notice of vacancy shall state, where applicable, the nature and title of position, salary, qualifications required, and the hours of work schedule as set out in Articles UN2 and COR2, (Hours of Work). Where a position is posted within the Ontario Public Service, the internal notice of vacancy shall also state the work location where the position currently exists, that the position is represented by the Union and the particular bargaining unit which contains the position. (FXT)

6.3 In filling a vacancy, the Employer shall give primary consideration to

qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, seniority shall be the deciding

factor. (FXT, SE)

6.4 An applicant who is invited to attend an interview within the Regular

service shall be granted time off with no loss of pay and with no loss of

credits to attend the interview, provided that the time off does not unduly

interfere with operating requirements. (FXT, SE)

Union’s Legal Argument

25At the time of filing of these grievances, the Grievors were all Operations Officers (FS1) at the PEOC desk, working full-time hours as Fixed-Term employees. The Union noted that there was no dispute that the Grievors’ responsibilities at the duty desk changed in any material way, despite the fact that their classification and pay rate were lowered when PEOC was restructured in 2018. The Union argued that the crux of the grievances is that instead of filling 4 Operations Officer vacancies, Management used funding from the vacant regular service positions to schedule and pay the Grievors as Fixed-Term employees on a full-time basis to meet the scheduling demands of PEOC. The Union further argued that Collective Agreement does not allow the Employer to rely on using Fixed-Term employees indefinitely and that the terms of Article 6 and Article 31 are mandatory, assuming all conditions are met, in terms of filling vacancies and converting Fixed-Term employees to regular service. By either measure, filling of vacancies or conversions, the Union maintained that the Grievors should have been awarded positions in the regular service during the relevant timeframe, being May 14, 2016 to November 21, 2017.

26In terms of applying the Collective Agreement provisions in this case, the Union urged me to consider the unique 24/7/365 nature of PEOC as part of applying the usual principles for contract interpretation, making reference to the following statement in Fish, Food and Allied Workers FFAW/Unifor and Atlantic Safety Centre Inc, 2017 CanLII 44709 (NL LA) at paragraph 39:

“One of the principles of interpretation applied by arbitrators is that the language of the collective agreement is to be interpreted in the context of the collective agreement as a whole, and in the context of the labour relations of the parties. The labour relations context includes the nature of the employer’s business, the nature of the work performed by the employees, and the history of the relationship between the parties. Arbitrators have also considered evidence described as extrinsic evidence, where it has been determined that the language of the collective agreement is ambiguous. The types of extrinsic evidence considered by arbitrators have included past practice and collective bargaining history (Brown & Beatty, Collective Agreement Arbitration in Canada, 4th edition, at paragraph 3:4400).”

Union’s Vacancies Arguments

27With respect to Article 6 of the Collective Agreement, the Union relied on the language of Articles 6.1.1 and Article 6.3, which apply to Fixed-Term employees, noting the provisions’ mandatory requirements. Article 6.1.1 states: “when a vacancy occurs in the Regular Service for a bargaining unit position or a new regular position is created in the bargaining unit, it shall be advertised” and in Article 6.3 when filling a vacancy, the Employer shall give primary consideration to qualifications and ability to perform the required duties. Where qualifications and ability are relatively equal, seniority shall be the deciding factor.” In the instant case, the Union argued that the evidence not only showed that at least for four years, there were Operation Officer vacancies at PEOC’s duty desk as evidenced by the Employer’s organizational charts, the Staffing Study, Mr. Thompson’s evidence and the fact that the work at the duty desk continued in full swing. The Union also emphasized that given the Grievors’ seniority, skills, and qualifications that they would have been the qualified candidates for filling the vacancies.

28Reliance was also placed on a decision of Arbitrator Rayner in Horton Steel Work v. USWA Local 3598, 1973 CanLII 2074 (ON LA), 1973 CarswellOnt 1518, [1973] O.L.A.A. No. 102, 3 L.A.C. (2d) 54, in which it was summarized that while an employer has the right to determine the extent and composition of its workforce to operate its business, consideration must also be given to whether there is adequate work in the opinion of a company to justify the filing of a vacant positions. Arbitrator Rayner noted, at paragraph 7 of the decision that:

“However, in the board’s opinion, the company’s opinion must be exercised based on a reasonable view of the objective facts as they exist at the time the vacancy is alleged to exist. If, for, example, the company used several employees to work part of the time on a particular job to such an extent that the job was being done for a full shift each day, it would hardly be open for the company to say that in their opinion that there was not adequate work to justify filling of the position”.

Applying this reasoning, the Union emphasized that there was continuous and increasing work at the duty desk that was being covered by Fixed-Term employees on a consistent full-time basis 24/7/365.

29The Union submitted, in addition to vacancies listed on the Employer’s organizational charts, that further evidence of existing vacancies was established through the evidence of postings for Operations Officers (FS1) positions in late August and September, 2016 which were later cancelled, even though the work at the PEOC duty desk fully continued and was completed by the Grievors and other Fixed-Term employees. Moreover, the Union argued that the Employer could not simply take a “holiday” from posting vacancies by not filling vacant positions that existed or declare that the existence of the new Duty Office (10OAD) classification rendered the Operations Officer (FS1) duty desk positions eliminated. The Union relied on the following cases in support of these arguments: OPSEU (Leung) vs. Ministry of Finance, 2001 CANLII 25795 (ON GSB), and Providence Healthcare vs. CUPE local 1590, 2012 CarswellOnt 13032, 112 C.L.A.S. 334, 225, L.A.C. (4th) 338.

Union’s Conversion, Authorized Leaves and Attendance Credit Arguments

30While the Union and the Employer both agreed on the steps for conversion outlined in Article 31A.15, the Union’s dispute in this case is whether the Grievors met the requirement of “full-time” hours as outlined in Article 31A.15.1.3 which specifies that “full-time” shall mean 1,725.50 or 1,904 “straight-time” hours in each year, as applicable including authorized leaves of absences. The Union submitted that the language in Article 31A.15 does not refer to rate of pay but instead refers to the type of hours worked and argued that, in this case, given PEOC’s 24/7/365 operation and the 4 day on-off rotational schedule, overtime hours formed part of the Grievors’ ‘‘full-time” hours worked. Without including overtime hours, the Union suggested that it was literally impossible for any of the Grievors to reach the required hours for conversion. Also, the Union pointed to the purpose of the conversion provision in Article 31.A. 15 which is to prevent the Employer from indefinitely relying on casual staffing to perform work that continues on an on-going basis, which is exactly what the Union claimed the Employer did in this case.

31The Union also argued that, unlike permanent full-time Operations Officers, the Grievors were not given an opportunity to enter into a compressed work-week arrangement where shifts of 12.25 or 11.25 hours would have been subject to an election of whether the hours were counted as straight-time or overtime hours. Again, the Union stated that because of Employer’s scheduling practice, the Grievors ended up incurring overtime hours rather than straight-time hours.

32In addition to the inclusion of overtime hours, the Union argued that while the Employer had no mechanism for tracking the Grievors’ leaves of absence, such leaves of absence were taken and therefore authorized within the meaning of Article 31A.15.1.3. From the Union’s perspective, it interpreted Mr. Redlarski’s testimony, that as long as 24/7/365 coverage was staffed at the duty desk to mean that leaves were permitted and should have been included in the calculation of full-time hours for conversion eligibility. The Union also pointed to leave provisions under the Ontario Employment Standards Act, 2000 (the “ESA”) noting that certain leaves, such as Family Responsibility leave, should be included as authorized leaves under Article 31A.15.1.3. In that regard, the Union noted that some of Mr. Knapp’s leaves (such as attending out of province family illness matters) would be included as an authorized leave under the statutory protection of the ESA. Lastly, the Union submitted that the Grievors were entitled to accrue attendance credits based on their hours of work within the meaning of Article 31A.8.1 and that such credits would have been used for conversion purposes.

Employer’s Legal Argument

33The Employer argued that the true nature of dispute in this case relates to the Grievors’ frustration over their classification as full-time Duty Officers classified at the 10OAD rate, which is a lower classification and pay rate than what they were receiving during their Fixed-Term contracts as Operations Officers, classified at the FS1 rate. The Employer pointed to its evidence that while some of the full-time PEOC Operations Officers remained in that classification following the 2018 restructuring, those Officers performed more complex duties and responsibilities than the work performed by staff at the duty desk. While the Grievors continued to do the same work at the duty desk in their new positions as Duty Officers, the Employer relied on the Job Evaluation Branch’s classification decision which concluded that the duties and responsibilities performed at the duty desk corresponded with an 10OAD classification. The Employer requested that I dismiss the grievances on the basis that, at their core, they are classification grievances, for which I have no jurisdiction to decide. The Employer also argued that the Grievors claims for attendance credits is moot given that they are now part of the regular full-time service so are no longer eligible to receive attendance credits.

Employer’s Conversion, Authorized Leaves, and Attendance Credit Arguments

34The Employer noted that the language in Article 31A.15 is clear that the minimum number of hours must be met in terms of calculation conversion eligibility. The Employer relied on the following GSB cases which all confirm that one of the criteria for conversion is that an a Fixed-Term employee must meet the minimum number of hours listed: OPSEU (Gareh) v. Ontario (MAG), 2002 CanLII 45791 (ON GSB) (Brown), OPSEU (Hunt et al.) v. Ontario (MAG), 2012 CanLII 57380 (ON GSB) (Abramsky), OPSEU (Moretti) v. Ontario (MCSCS), 2006 CanLII 91923 (ON GSB) (Briggs), OPSEU (Babcook) v. Ontario (MAG), 2010 CanLII 52644 (ON GSB) (Briggs).

35The Employer argued that only straight-time hours can be included in the calculation of minimum hours given the clear mandatory language in Article 31A.15. In the Grievors’ cases, the Employer stated that based on the evidence and calculation of hours, none of the Grievors met the requirement of 2856 straight-time hours and that including overtime hours in the calculation would be inconsistent with GSB caselaw that has interpreted the word “straight-time”. In support of its position, the Employer presented cases where the GSB has considered the meaning and application of straight-time hours in other circumstances: OPSEU (Stuber) v. Ontario (MAG), 2020 CanLII 20380 (ON GSB) (Nairn), OPSEU (Carruthers) v. Ontario (MCSCS), 2009 CanLII 66847 (ON GSB) (Briggs), and OPSEU (Union) v. Ontario (MPSS), 2003 CanLII 52950 (ON GSB) (Briggs), which the Employer stated is squarely on point. At pages 2 and 3 of the that decision, the Arbitrator posed the question whether overtime hours were credited towards an employee’s “straight-time hours” for the purpose of “Unclassified Seniority” where an unclassified correctional office worked a total of 48 hours in a week, comprised of 40 hours paid at the regular rate for straight-time hours and 8 hours paid at the overtime rate for overtime hours. Arbitrator Briggs determined that overtime hours were not included in the calculation of seniority by examining the language of the parties’ Memorandum of Agreement in that case that “seniority will be calculated on straight-time hours” and stated:

“In my view, the wording of the provision regarding the calculation of seniority is clear. It is apparent that the parties utilized terms that are familiar and understood to have a particular meaning. None of the hours worked in excess of the regular straight time hours are eligible for the calculation of seniority. Therefore, the answer to question one is “no”.”

The Employer urged me to find that anything other than using straight-time hours in assessing conversion eligibility in Article 31A.15 cannot be supported because the language is clear and unambiguous and what was intended by the parties in negotiating the Collective Agreement. The Employer also suggested that there were no complaints by the Grievors when they were receiving overtime pay and that it would be unfair to have collected premium pay and to now count those hours as straight-time hours for conversion. In the alternative, the Employer remarked that even if I were to find that overtime hours should be included in the calculation of minimum hours under Article 31A.15, that only Mr. Jacobs would come close to qualifying for the minimum hours requirement over the relevant 18 month period in this case.

36With respect to inclusion of authorized leaves of absence in the determination of “full-time” in Article 31A15.1.3, the Employer argued that only specific types of authorized leaves for which there is a contractual entitlement for Fixed-Term employees can be counted. Countering the Union’s arguments in this case, the Employer stated that the leaves of absences taken by the Grievors do not fall within the true meaning of authorized leaves of absences within the meaning of Article 31A.1.3. The Employer relied on the decision OPSEU (McPhail et al.) v. Ontario (MAG), 2003 CanLII 52858 (ON GSB) (Briggs) claiming it to be dispositive of the issue. The McPhail case dealt with grievances filed by unclassified provincial court employees who asserted that they had been improperly denied conversion. In the case, the Union, at page 10, argued that any leave of absence authorized by the Employer should be considered for calculating full-time hours irrespective of whether there is an express approval for such periods. In addressing the issue of vacation or holiday leaves, special leaves and leaves for sickness, the Union asserted that irrespective of whether there was an express approval for such periods, the Employer’s allowing time off for such purposes constitutes authorization. Finding in favour of the Employer, at page 11 of the decision, Arbitrator Briggs concluded that only authorized leaves of absence listed in Article 31.16.1 of the Collective Agreement can be included for the purpose of calculating straight-time hours:

“I begin by saying that although the Employer can grant leaves of absences for purposes other than those listed in article 31.16.1 to unclassified employees, there is no contractual entitlement to those leaves. Neither is there any entitlement to any hours of such leaves being included in calculation of straight time hours for the purposes of determining rights to conversion. I cannot find that there is such a right in the absence an express provision in the collective agreement. Further, I cannot agree with the Union that an implied or express agreement from the Employer for non collective agreement leaves of absence is sufficient for those leaves to be considered for these purposes.”

37In terms of attendance credits not being issued to the Grievors, the Employer agreed that Fixed-Term employees are entitled to attendance credits provided that they satisfy the qualification criteria established under Article 31A.8.1 for a particular calendar month as noted in the case OPSEU (Noble) v. Ontario (MCSCS), 2011 CanLII 36504 (ON GSB) (Gray). The Employer suggested that there was not sufficient evidence before me to establish whether the Grievors met the criteria of hours worked with respect to the determination of attendance credits. Also, the Employer referred the McPhail decision noting that Arbitrator Briggs did not include sick time as one of the types of authorized leaves that count towards “full-time” work in Article 31.A.15.1.3. Alternatively, the Employer argued that the accrual of attendance credits is a moot point, since attendance credits are only to be used in the context of leaves due to injury and illness, and given that the Grievors are now in the full-time regular service they would not have carried over attendance credits but instead would have access to enhanced sick leave protections.

Employer’s Vacancies Arguments

38Although the Employer’s witnesses testified that PEOC was short-staffed and that they would have like to hire more full-time employees, it was submitted that they had to work within the limited funding resources which did not include adding or posting full-time positions. Referring to an overview of when a vacancy is triggered at page 5 of OPSEU (Union) v. Ontario (MOH), GSB#1439/86 (Knopf) the Employer asserted that a vacancy occurs when Management determines that there is sufficient work to be done by an employee on a full-time basis and that it has the right to distribute and re-distribute the work as it see fit. In addition, the Employer argued that while vacancies were noted on various internal documents such as the Staffing Study, that those notations cannot be interpreted as granting any right or entitlement to full-time positions for the Grievors. As well, despite the loss of some full-time Operations Officers due to retirements and a promotion in 2016 and 2017, the Employer took the position that it could back-fill these positions, as mentioned by Mr. Redlarski in his testimony.

39Regarding the removal of postings in September 2016, the Employer pointed to the testimony of Ms. Cassells and Mr. Thompson, that the vacancies were posted in error as there was not Management approval due to the fact restructuring was being reviewed following the Auditor General’s audit. The Employer emphasized that posting a vacancy in error would fall within one of the limited reasons that Management may remove a posting. From the Employer’s perspective, when vacancies did occur in January 2018, for the new Duty Officer positions, they were posted in response to the Employer’s restructuring.

Analysis and Decision

1. Did the Employer violate the vacancy provisions under Article 6 of the Collective Agreement by failing to post vacancies that existed in the operations of PEOC?

40Article 6 of the Collective Agreement is a mandatory provision requiring the Employer, to advertise when a vacancy occurs in the regular service, either for a bargaining unit position or new regular position that has been created in the bargaining unit. What is critical in the determination of the application of Article 6 is to first determine if a vacancy exists. The language “when a vacancy occurs” is not defined in the Collective Agreement, but the question of when a vacancy occurs needs to be examined in the context of the Management’s Rights provision in Article 2.1 which sets out the exclusive authority to manage the business and direct the workforce, including but not limited to the right to hire, classify positions and determine organization, staffing levels and work method, all of which are relevant to this case.

41In assessing whether a vacancy exists, it is not enough that an existing position or job classification is not filled. As noted in the Horton Steel Workers case at paragraphs 6 and 7, supra, the relevant question is the determination of whether there is adequate work, in the opinion of an employer, to justify filling the position. However, as noted in OPSEU (Union) v. Ontario (MOH), GSB#1439/86 (Knopf), at page 7, a vacancy would not arise where an employer decides to redistribute work through the remaining workforce after an employee leaves a position, as long as it can be established there was not sufficient work to support hiring someone to do the work on a full-time basis such that the vacated position is essentially eliminated.

42It is also evident from the caselaw that even in circumstances of a substantial reorganization, if vacancies continue to exist, that a decision to either not post or to postpone posting of vacancies, can result in a violation of the vacancy provisions of a collective agreement. This situation occurred in the case of Providence Healthcare and Cupe Local 1590, supra, where the hospital posted numerous temporary, instead of permanent, vacancies during a 14-month period when it was developing its restructuring plans. Arbitrator Goodfellow determined that the hospital, while not knowing how the workplace would be organized post restructuring, did not have the right to postpone or take a holiday from posting permanent vacancies that existed. In failing to post permanent vacancies over the 14-month period, the Arbitrator concluded that the hospital in effect removed collective agreement rights and protections provided to permanent employees.

43Once a vacancy is posted, there are limited circumstances in which an employer is permitted to cancel the posting which involves a review of whether an employer has established that there are sound and practical reasons for the cancellation. Additionally, if the work continues to exist on a full-time basis, even where new classifications are created, there may not be justification for cancelling a posting as the creation of a new classification may not result in the elimination of the original work that was performed. For example, in OPSEU(Leung) and Ontario (MOF), supra, Arbitrator Abramsky concluded that despite a change in job classification of tax auditors, their original positions were not eliminated based on evidence of an on-going need.

44Having reviewed the facts of this case and the caselaw provided by the parties, I have concluded that the Employer violated Article 6 of the Collective Agreement by not posting vacancies that existed for Operations Officers (FS1) during the relevant time period of May 14, 2016-November 21, 2017. Although the Employer claimed that it did not have the funding to fund additional permanent Operations Officers to work at the duty desk, the evidence from all of the witnesses confirmed that the duty desk work continued to exist requiring coverage 24/7/365 and that the duty desk was understaffed. It was also clear from Mr. Thompson’s testimony that funding from vacant positions was used to pay Fixed-Term employees.

45I also have concluded, as noted earlier at paragraph 13 that the Grievors, subject to shift-swapping and leaves, were regularly scheduled full-time hours. The conclusion that they were not temporary or casual employees was not only evident from their pay-stubs, but also from the annual schedule in 2017 and from Mr. Redlarski’s testimony that the Grievors contracts were renewed every 6 months, year after year, to fill the same position number. Furthermore, the organizational charts included in evidence related to the Staffing Study and the follow-up OFMEM Management Structure dated June 6, 2016 showed 2 vacant Operations Officer positions. In addition to those vacancies, it was not disputed that by the end of 2017, other vacancies were not filled after one full-time Operations Officer left to take a promotion and 2 other Officers, Mr. Foulds and Mr. Claydon, retired. I do not accept the evidence of Mr. Redlarski and Ms. Cassells that these vacant positions were “place holders” that did not result in the requirement to meet the Employer’s obligations under Article 6 of the Collective. While the duty desk work may have been redistributed among the remaining PEOC staff following full-time positions being vacated, it cannot reasonably be concluded, given the Grievors’ schedules, that the full-time work of the permanent vacant positions was eliminated. In this case, like in the Horton Steelwork case, supra, Management’s right to hire and organize the workplace, is curtailed where there is evidence of adequate work such as the case where an employer uses several employees to work on a job on a full-time basis.

46The October 2016 posting cancellations also lend support to the fact that vacancies continued to exist at PEOC. Although Ms. Cassells testified that the postings were made in error claiming that there was no authorization by upper Management, she did not state that the work was ending or that there was not a continuing need for full-time hours of work. She only mentioned that her Director, Mr. Morton, asked that the postings be cancelled because he wanted to look at reorganizing PEOC. Mr. Thompson also acknowledged that despite the postings being cancelled, there remained a staffing shortage at PEOC with too many casual employees working in comparison to the full-time permanent employees. His testimony also confirmed that the reason for pulling the posting was not due to lack of work.

47Similar to the reasoning in Providence Healthcare and Cupe, supra, in this case, the Employer’s reliance on the restructuring process, which included reviewing the Staffing Study, the Lambert Technology study and the Auditor General’s report, cannot reasonably be used to justify vacancies not being posted. During the 18-month time-period examined in this case, full coverage at the duty desk was needed and it was staffed accordingly. While it is not disputed that the Employer needed to deal with reviewing provincial emergency operations, for a period of at least 18-months, permanent full-time vacancies existed which should have been posted and filled as mandated by Article 6 of the Collective Agreement. Had those full-time positions been posted, it is likely, given the Grievors’ skills, qualifications and seniority, that they would have been awarded these positions.

2. Did the Employer violate the conversion provisions under Article 31A.15 of the Collective Agreement by not converting the Grievors to positions in the regular service after assessing the conversion criteria based on the 18 month period starting on May 14, 2016?

48Converting a Fixed-Term position to regular service under Article 31A.15 is mandatory assuming all the conditions listed in Articles 31A.15.1.1, 31A.15.2 and 31A.15.3 are met. In this case, there is no dispute that the Grievors, as Fixed-Term employees, performed the same work at the duty desk for a period of at least 18 months between May 16, 2014 to November 21, 2017, satisfying the first condition in Article 31A.15.1.1. The second condition of Article 31A.15.1.1 that needs to met is “where the ministry has determined that there is a continuing need for that work to be performed on a full-time basis”. In this case, having regard to my findings on vacancies, I have concluded that there was a continuing need for the duty desk work to be performed on a full-time basis. The remaining question is whether the Grievors fulfilled the “full-time” hours requirements set out in Article 31A.15.3 which defines full-time hours as straight-time hours, including authorized leaves of absences.

49All of the cases that were relied on by the parties with respect to conversion under Article 31A.15 conclude that the minimum number of hours of work need to be met; however, none of the cases delve into the consideration of whether overtime hours could be included in the calculation of full-time hours. The language of Article 31A.15.3 is specific and unambiguous in its reference to the requirement of “completing either 1,725.50 or 1,904 “straight-time hours”, as applicable, including authorized leaves of absences”. Reviewing other provisions within Article 31-Fixed-Term Employees, this same requirement and reference to straight-time hours is repeated in Article 31A.2.3 dealing with progression through the salary range and in Article 31A.17 dealing with seniority accumulation for the purpose of filling vacancies or new positions. In addition to Article 31, there are other sections of the Collective Agreement that apply to Fixed-Term Employees. Also of significance is Article 18 dealing with seniority calculation which also contains mandatory language that full-time Fixed-Term employees “shall have their service counted towards accumulation of seniority, based upon 1725.50 straight-time hours or 1,904 straight time hours counting as equivalent to one year’s service, or pro-rated to the equivalent of less than one year as appropriate”.

50In terms of interpreting the words “straight-time” I am mindful of the decision in OPSEU (Union) v. Ontario (MPSS), supra, where over-time hours were not credited toward an employee’s “straight-time hours” for the purposes of unclassified seniority. In that decision, involving the calculation of seniority for correctional officers, Arbitrator Briggs looked at language which specified that seniority will be calculated on “straight-time hours” and concluded:

“In my view, the wording of the provision regarding the calculation of seniority is clear. It is apparent that the parties utilized terms that are familiar and understood to have a particular meaning. None of the hours worked in excess of the regular straight time hours are eligible for the calculation of seniority.”

51The Union asked me to consider the unique nature of PEOC 24/7/365 operation and the rotational schedule under which the Grievors were scheduled to work in order to find that overtime hours be included in the calculation of “full-time” hours for conversion purposes. With regard to contract interpretation, as noted in Fish, Food and Allied Workers FFAW/Unifor and Atlantic Safety Centre, supra, I have considered the balance between the PEOC workplace and the context of the Collective Agreement as a whole. I find that the use of the language “straight-time” is clear and unambiguous in defining the meaning of “full-time” hours in Article 31A.15. Although it was not disputed that overtime hours formed part of the Grievors’ schedules due to the rotational 4 day on-off scheduling, some overtime hours would occur, for example, due to shift swapping, coverage during vacation or other leaves, providing last-minute additional coverage to fill in gaps for employees off sick, or for staffing coverage during surge events. Inclusion of all overtime hours that occur in the calculation of eligibility for conversion, cannot reasonably be what was intended by the parties in negotiating Article 31. As a result, I have determined that only straight-time hours are included for the purposes of conversion to the regular service. Read together with other sections in Article 31 pertaining to calculation of seniority accumulation for vacancies, progression through the salary range and Article 18 pertaining to seniority calculation, it is clear that the parties were specific in their intended use of the words “straight-time”. Permitting the calculation of hours for conversion by including overtime hours while not being able to include overtime hours for the calculation of seniority and salary progression seems an incongruous result, in which, for example an employee would convert to the regular service with reduced seniority. In addition, while recognizing PEOC’s unique 24/7/365 operational needs, there are other provincial operations covered by the Collective Agreement, such as correctional facilities, that also operate twenty-four hours per day, 365 days per year on similar rotational schedules and those operations would also be subject to the language requiring “straight-time” hours in Articles 31 and 18.

52There was some evidence in the case regarding conversion of Fixed-Term employees in 2005. The Union argued that I should accept that evidence as an example of past practice which I should take into consideration in my decision. Although the Grievors claimed that PEOC, in the past, had converted Fixed-Term employees who had not met the minimum hours threshold or that the Employer must have included overtime hours in its calculation of hours, I am not convinced that there was sufficient evidence to establish a past practice of this kind. Despite Mr. Reid testifying about his recollection about converting employees, his testimony related to events over 15 years ago and at best, he recalled that one employee worked at the duty desk full-time while the other was assigned to project work that would have included 12 hour shifts. There was nothing in his testimony to prove that overtime hours would have been included in the calculation of hours conversion back in 2005. In any event, there was evidence given by Mr. Thompson that, over the course of his tenure as PEOC Operations Manager from 2010-2017, on several occasions he specifically advised staff of the conversion requirements, including the fact that roll-over to permanent, was based on straight-time hours.

53With respect to the Union’s claim that the Grievors’ leaves of absences should have be included as authorized leaves of absence for the calculation of hours for conversion, I have concluded that such leaves, irrespective of whether there is implied of express approval, do not qualify as authorized leaves within the meaning of Article 31A.15.3. In making this finding, I have relied on the decision of OPSEU (McPhail et al.) v. Ontario (MAG), supra, in which the Arbitrator found that leaves such as vacation, holiday and sick leaves are not part of the contractual list of leaves of absence provided for in Article 31A.16.1 of the Collective Agreement. Notwithstanding the Union’s submission about the application of the ESA, having regard to the general principles established in ATU (Blake et al) v. Ontario (TATOA), GSB# 1276/87 (Shime), I am not convinced that there are exceptional circumstances in this case to not follow the decision of this Board in McPhail.

3. Did the Employer fail to provide attendance credits to the Grievors pursuant to Article 31.A.8 of the Collective Agreement?

54Having reviewed the records of hours, the pay-stubs of the Grievors’ over the 18-month period between May 14, 2016 and November 21, 2017 and the testimony of the Grievors, I am satisfied that they were entitled to receive attendance credits under Article 31A.8. There was no explanation by the Employer about why attendance credits stopped being issued after 2015 and there was no evidence that the Grievors’ schedules materially changed after 2015. Without an explanation from the Employer about the non-issuance of attendance credits, I have not been provided with any justification to support the Employer’s action of not issuing attendance credits to the Grievors. While I understand the Employer’s argument that the issuance of attendance credits is no longer a “live” issue since the Grievors as permanent full-time employees do not receive these credits, I do not agree that the issue is moot. The loss of attendance credits occurred during the relevant time period in question in this case and therefore, it will be necessary to address what would be the appropriate remedy for the violation of Article 31.A.8.

Conclusion

55Finally, I must address the Employer’s argument that these grievances are in essence classification grievances and should be dismissed on that basis, since the GSB has no jurisdiction to decide classification matters. Although there was evidence before me regarding expectations around conversions to full-time positions and some allegations that Management hinted that positions may be reclassified in February 2017, I believe the Grievors’ testimony that they only found out about the new Duty Officer (OAD10) position after they received notification in January 2018 that their Fixed-Term contracts were not being renewed. These grievances were filed on December 12 and 16, 2017 prior to the announcement and the January 16, 2018 posting of the new classification of the Duty Officer (OAD10) position. Given that timing, I do not agree with the Employer that the grievances can be characterized as challenging the Duty Officer classification.

56For the period between May 14, 2016 and November 21, 2017, I find that the Employer violated Article 6 of the Collective Agreement by failing to post and fill vacancies for the Operations Officer (FS1) position at PEOC. I also find that the Employer violated Article 31A.8 by failing to provide attendance credits to the Grievors. There has been no violation of the Collective Agreement with respect to conversion to permanent positions under Article 31A.15.

57The parties’ positions on remedy will be heard at our next scheduled day of hearing, January 14, 2021.