GSB# 2019-0806

UNION# 2019-0317-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Toth)

Union

• and -

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

Employer

BEFORE

Gail Misra

Arbitrator

FOR THE UNION

Matthew Hrycyna Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Michelle LaButte Treasury Board Secretariat Employee Relations Advisor

HEARING

December 11, 2020 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 (now, the Ministry of Children, Community & 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.

7Austin Toth filed a grievance dated April 2, 2019 claiming that the Employer had violated his rights under Articles 2 and 3 of the Collective Agreement, and any other policies or directives. In particular, the Grievor asserts that his application for the Transition Exit Initiative ("TEI") was denied on March 28, 2019; that he was not provided with the guidelines regarding Ministry Transformation; and that other members of the bargaining unit were being granted TEI, so he was not being treated fairly. By way of remedy, Mr. Toth wanted to have his TEI approved, and to be made whole.

8The Grievor worked as a Probation and Parole Officer 2 out of the Huntsville Probation and Parole Office. He had a seniority date of July 20, 2001. In early 2019 Mr. Toth applied for the TEI, and in March he was advised that his request had not been granted as his exit did not support the Ministry transformation.

9According to the Employer, during that time, there were no TEI's out of the Huntsville office, as the Ministry had not identified a need for reduction of its staffing. As the matter of whether or not to grant a request for a TEI is in the Employer's discretion, based on its needs at the time, the Employer argues that the Grievor was given an appropriate response to his request. It points out that later in 2019 the Grievor was approved for a TEI through the modernization program within the Ministry, and Mr. Toth retired in December 2019.

10Having reviewed the submissions of the parties, I am satisfied that the Employer did not act in an arbitrary manner when it denied the Grievor's TEI request. Based on the facts before me, it is clear that the Grievor's TEI request was not supported at the time he made it as there were no reductions in staffing needed at the Huntsville Probation and Parole office at that time, and when there were later that year, Mr. Toth's application was approved. As such, I can find no breach of the collective agreement, and the grievance is hereby dismissed.