GSB# 2019-1551

UNION# 2019-0368-0245

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Mathison)

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

February 18 and March 19, 2021

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 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.

7Teresa Mathison, a Fixed Term ("FXT") Contract Records Clerk at the Central East Correctional Centre ("CECC"), filed a grievance dated August 21, 2019. The grievance states that the Employer violated various articles of the collective agreement and a new appendix regarding FXT rollovers. The remedy sought is that the grievor be made whole by directing the Employer to abide by the rollover process; that the appropriate person be hired through that process, which Ms. Mathison believes would be her. She therefore seeks to be rolled over to a classified position and to be paid damages.

8In the summer of 2019, there was a job posting for an Inmate Records Clerk, OAG 8 position at the CECC. The grievor applied for the position and was interviewed. On July 17, 2019 she was advised that she was not the successful applicant for the position. That led to the filing of this grievance.

9In the last round of bargaining for a new collective agreement the parties reached a Letter of Understanding ("LOU") about how FXT rollovers for non-CO/YSO/PPO/PO positions within the Ministry of the Solicitor General and Ministry of Children, Community and Social Services (Youth Justice Division) would be addressed. That LOU now forms part of the current collective agreement as Appendix COR42, and is dated April 1, 2019. The last paragraph of the Appendix states that the Ministry of the Solicitor General/Ministry of Children, Community and Social Services MERC would meet within 120 days of April 1, 2019 to implement the LOU. Both the Ministries and OPSEU representatives sit on the MERC.

10While the parties did meet within the 120 days period, the negotiations took longer than that, so they were not able to sign off on a Memorandum of Agreement with respect to the Recruitment of Non-Correctional Officers Within Institutional Services until December 11, 2019. As such, at the time that the competition at issue in this grievance occurred, there was no process in place yet to operationalize Appendix COR42. The job posting also appears to have occurred within the 120 days from April 1, 2019.

11From the wording of the LOU at Appendix COR42 it is clear that the negotiating parties had anticipated what should occur in the event that there was no agreement in place. They agreed as follows:

Failing agreement between the parties at the respective MERC in reference to the vacancies, the Employer retains their rights under Article 2 of the Collective Agreement.

Article 2 is the Management Rights clause and states as follows:

2.1 For the purpose of this Collective Agreement, the right and authority to manage the business and direct the workforce, including the right to hire and lay-off, appoint, assign and direct employees; evaluate and classify positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workplace, the kinds and locations of equipment, the merit system, training and development and appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer. It is agreed that these rights are subject only to the provisions of this Collective Agreement.

(Emphasis added)

12Thus, while the parties had agreed on the LOU outlined above, they had not yet reached a Memorandum of Agreement that would implement the new process. While that was happening, the Employer had the right, pursuant to its Management Rights, to conduct the job competition in the normal course. If the Employer had a vacancy that it had determined needed to be filled, it was not required to wait until after an agreement had been reached at the MERC before filling it. In this instance, the CECC determined pursuant to its Management Rights that it needed to fill the vacancy for an Inmate Records Clerk in the early summer of 2019.

13While it was unfortunate timing for the grievor, the Employer was well within its rights to determine when it had to fill a position, and in this instance it had determined that it needed to do so by June 2019, well before the MERC had signed off on the Memorandum of Agreement with respect to the Recruitment of Non-Correctional Officers Within Institutional Services.

14Based on the submissions of the parties, the documents before me, and the terms of the Collective Agreement, for the reasons outlined above, this grievance is hereby dismissed.