GSB#2013-1446, 2013-1574, 2013-1696

UNION#2013-0999-0049, 2013-0999-0063, 2013-0999-0069

“Appendix A to the ASF”

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union-Herr et al)

Union

• and -

The Crown in Right of Ontario (Treasury Board Secretariat)

Employer

BEFORE

Reva Devins

Arbitrator

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

George Parris Treasury Board Secretariat Legal Services Branch Counsel

HEARING

March 29, 2021

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.

2Grievances were filed by nineteen grievors in various positions in the Ministry of the Attorney General. Each of the grievors applied for TEI before they retired from the Ontario Public Service (“OPS”), however, their requests were not approved by the Employer.

3The parties submitted the following Agreed Statement of Facts:

1. A number of employees in various positions employed by the Ministry of the Attorney General (the “Ministry”) working in a number of institutions/workplaces applied for TEI between January 2013 to December 2018 (the “TEI Applications”).

2. There were approximately seventy-two (72) individual applicants who filed grievances.

3. The Ministry did not approve any of the TEI Applications in relation to the above noted grievances.

4. The Union forwarded 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. This Agreed Statement of Fact addresses only 19 of the 72 grievances filed. Appendix A lists the 19 employee names and classification levels.

7. It would be the Ministry’s 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 required continued resource support and the exit of the above noted applicants would not support the transformation of the Ontario Public Service. The Employer provided documentary evidence to support the fact that the respective positions were filled following the exit of the above noted applicants. The Union does not have evidence to the contrary.

8. Each of the employees listed in Appendix A retired after their TEI application was filed. For all employees listed in Appendix A, their TEI applications remained pending while they were employees.

a. Roberta Herr applied for TEI on June 4, 2013 and retired on February 4, 2014. It would be the Ministry’s evidence that the position of Client Services Representative (Position #00046293) at 145 Curtis Street, St. Thomas, was filled on March 17, 2014 and continued to be required. The union does not have evidence to the contrary.

b. Kay Howell applied for TEI on June 5, 2013 and retired on February 21, 2014. It would be the Ministry’s evidence that the position of Trial Coordinator (Position #00044861) at 15 Bridge St. West, Belleville was filled on July 16, 2013 and continued to be required. The union does not have evidence to the contrary. The Grievor would give evidence that her manager advised upon receipt of her application that she would let the grievor know when the application was approved. The Grievor was led to believe that it would be approved. When she had not heard by September 2013 she followed up. When she still had not heard she followed up again in October 2013. Her request was denied by letter dated December 2, 2013 (the Employer states that TEI is never denied, but rather, not approved with ongoing consideration, and the Employer states this letter was dated November 25, 2013). The grievor claims that her denial was carried out in a callous manner by letter and should have been conducted in a face to face manner. According to the grievor, the denial of the TEI had a very significant financial impact on the grievor.

c. Beverley Lidstone applied for TEI on September 23, 2013 and retired on July 31, 2014. It would be the Ministry’s evidence that the position of Client Services Representative (Position #00046106) at 491 Steeles Ave. East, Milton was filled on October 6, 2014 and continued to be required. The union does not have evidence to the contrary. The Grievor’s evidence would be that she qualified for the terms of the TEI but was told by management that the needs of the Region required continuing support.

d. Beatrice Kash applied for TEI on March 28, 2014 and retired on October 31, 2016. It would be the Ministry’s evidence that the position of Customer Service Officer Des (Position # 00079611) at 150 Dufferin Ave., London was filled on January 9, 2017 and continued to be required. The union does not have evidence to the contrary. The Grievor’s evidence would be that she was treated differently than other employees in other Ministries as they were granted the TEI while she was denied. The grievor claims that all Ministry employees should be treated in the same fashion.

e. Sandra Hopkins applied for TEI on May 10, 2013 and retired on November 29, 2013. It would be the Ministry’s evidence that the position of Trial Coordinator Judicial Secretary (Position # 00190897) at 102 East Main Street, Welland was filled on December 9, 2013 and continued to be required. The union does not have evidence to the contrary. The Grievor’s evidence would be that she provided notice to retire on March 14, 2013. She rescinded that notice when she applied for the TEI on May 10, 2013. Having not had a response to her application the Grievor re-issued her notice of intent to retire on July 30, 2013. The Grievor would give evidence that she never received a decision in relation to her application. The Grievor’s factor 90 date was the end of November 2013. She hoped to use the TEI to get to that date. The grievor would give evidence that three colleagues, LH, TS, and DB were granted the TEI and she was not. The grievor claims that she was treated differently than other employees. Accordingly, the grievor claims that the employer made arbitrary and bad faith decisions. The Employer states that it did not approve any TEIs in Welland between 2013 and 2018.

f. Karen Hayes applied for TEI on November 18, 2014 and retired on April 30, 2016. It would be the Ministry’s evidence that the position of Client Services Representative (Position #00045287) at 59 Church St., St. Catharines was filled on June 6, 2016 and continued to be required. The union does not have evidence to the contrary. The Grievor claims that she was treated differently by being denied the TEI - other employees including 3 Crown Office employees and 1 employee in Small claims Court were granted the TEI. The Employer states that no TEIs were approved at the Grievor’s location from 2014 to 2018. The Grievor applied for TEI in 2014.

g. Jeanette Murphy applied for TEI on June 19, 2015 and retired on November 30, 2016. It would be the Ministry’s evidence that the position of Financial Services Clerk (Position #00046202) at 45 Main St. East, Hamilton was filled on October 24, 2016 and continued to be required. The union does not have evidence to the contrary.

h. Christine Kramer applied for TEI on October 27, 2015 and retired on October 31, 2016. It would be the Ministry’s evidence that the position of Client Services Representative (Position #00045104) at 59 Church St., St. Catharines was filled on October 31, 2016 and continued to be required. The union does not have evidence to the contrary. The Grievor’s evidence would be that the Employer’s proposed changes to the retiree benefit plan was intended to coerce employees, including her, to retire prior to January 1, 2017. The grievor claims that she had to retire under the threat of financial hardship arising out of the change to retiree benefits. The grievor claims that the Employer was accomplishing downsizing by forcing the retirement without approving the TEI.

i. Josephine Clark applied for TEI on January 27, 2017 and retired on June 28, 2017. It would be the Ministry’s evidence that the position of Operational Group Leader (Position #00129201) at 491 Steeles Ave. East, Milton was filled on September 25, 2017 and continued to be required. The union does not have evidence to the contrary.

j. Sylvia Vicere Zamai applied for TEI on April 7, 2014 and retired on August 31, 2016. It would be the Ministry’s evidence that the position of Client Services Representative (Position #00044921) at 59 Church St., St. Catharines was filled on October 10, 2016 and continued to be required. The union does not have evidence to the contrary. The Grievor’s evidence would be that at the time of her retirement she had 42.5 years of loyal service. She never received a decision whether her application was denied or approved.

k. Maria Ligotti applied for TEI on January 7, 2014 and retired on August 31, 2014. It would be the Ministry’s evidence that the position of Client Services Representative (Position #00045111) at 102 East Main St., Welland was filled on September 8, 2014 and continued to be required. The union does not have evidence to the contrary.

l. Deborah Lale applied for TEI on April 19, 2013 and retired on January 31, 2014. It would be the Ministry’s evidence that the position of Trial Coordinator (Position #00046288) at 145 Curtis St., St. Thomas was filled on February 3, 2014 and continued to be required. The union does not have evidence to the contrary. The Grievor’s evidence would be that Human Resources correspondence issued stated that the TEI was based on the OPS wide downsizing and was not specific to one’s own position in one location. The Grievor’s evidence would be that her manager advised her that she would have to be replaced. The Grievor claims that she was improperly denied the TEI as the employer denied her based on her own position and not based on the entire OPS.

m. Leo Leger applied for TEI on September 30, 2013 and retired on May 30, 2014. It would be the Ministry’s evidence that the position of Legal Administrative Secretary (Position #00187728) at 444 Yonge St., Toronto was filled on December 1, 2014 and continued to be required. The union does not have evidence to the contrary.

n. Sarasu Prasad applied for TEI on September 12, 2013 and retired on August 31, 2015. It would be the Ministry’s evidence that the position of Administrative Assistant (Position #00052653) at 401 Bay St., Toronto was filled on September 28, 2015 and continued to be required. The union does not have evidence to the contrary. The Grievor’s evidence would be that she applied for the TEI in September 2013 as her spouse had commenced a business outside of the country and she wished to accompany her husband. She was required to take two periods of LOAWOP while waiting for a decision in relation to her application. She was advised in August 2014 that her application was not approved. The Grievor turned 60 years of age in 2015 and retired on a reduced pension. The Grievor states that taking a LOAWOP instead of being granted the TEI caused financial stress in addition to the stress caused by family separation. The Grievor’s evidence would be that she was not sure what, if any, continued and significant initiatives requiring resource support would have been implemented by MAG requiring the denial of her TEI. The Grievor claims that the Ministry was unjust in denying the TEI’s across the MAG as many other Ministries did grant a number of TEI’s

o. Alan-Lee MacDonald applied for TEI on August 18, 2014 and retired on December 30, 2014. It would be the Ministry’s evidence that the position of Customer Service Officer Des (Position #00079605) at 150 Dufferin Ave., London was filled on April 13, 2015 and continued to be required. The union does not have evidence to the contrary. The Grievor’s evidence would be that he had no choice but to provide notice of retirement when he did as he had not had a decision on approval or denial of his application as he had to ensure that he provided enough notice in order to receive a pension cheque in the beginning of January 2015.

p. Diane Freeman applied for TEI on May 10, 2013 and retired on June 30, 2014. It would be the Ministry’s evidence that the position of Client Services Representative Des (Position #00045420) at 102 East Main St., Welland was filled on December 8, 2014 and continued to be required. The union does not have evidence to the contrary. The Grievor’s evidence would be that she filled out the grievance on October 31, 2013 as she had not received a decision regarding her application. She was denied her application in December 3, 2013 (the Employer states that TEI is never denied, but rather, not approved with ongoing consideration). The grievor claims that the denial was, in part, in reprisal for the grievance.

q. Mary Fantin applied for TEI on October 30, 2014 and retired on October 30, 2015. It would be the Ministry’s evidence that the position of Financial Officer (Position #00138037) at 159 Cedar St., Sudbury was filled on November 23, 2015 and continued to be required. The union does not have evidence to the contrary.

r. Marjorie Skorich applied for TEI on October 23, 2013 and retired on January 30, 2015. It would be the Ministry’s evidence that the position of Administrative Assistant (Position #00138426) at 123 March St., Sault Ste Marie was filled on January 15, 2015 and continued to be required. The union does not have evidence to the contrary. The Grievor advises that at the time MOL was giving TEI most of the positions were filled after the person received the TEI (the grievor identifies two MOL positions: 1 Construction Inspector and 1 Regional Program Co-Ordinator). She claims that in one case an employee was due to retire 2 weeks and was still granted the TEI.

s. Linda Bemben applied for TEI on May 28, 2015 and retired on September 30, 2016. It would be the Ministry’s evidence that the position of Trial Coordinator (Position #00045109) at 45 Main St. East, Hamilton was filled on October 31, 2016 and continued to be required. The union does not have evidence to the contrary. Ms Bemben advises that her counterpart in the St. Catherine’s office applied for and was granted the TEI in the year before the grievor applied for the TEI. She also advises that a number of employees within the Crown Attorney Office were granted the TEI and further believes that her supervisor, Kim Taylor, retired approximately one month after the Grievor retired and was granted the TEI (the Employer disputes this as Ms. Taylor was not eligible to receive TEI and in fact did not receive TEI). The grievor was a 43 year employee and feels that it was unfair to deny her entitlement and arbitrary when others as noted above were granted the TEI.

Appendix 46

4The relevant provisions of Appendix 46 are set out below. I have included the initial provision and noted where it was subsequently amended:

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 discretion [amended to in its “sole” discretion, October 30, 2015]. The Employee’s request will be submitted to the Corporate Employer. The Employer’s approval shall be based on the following considerations:

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

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

iii. The Employer will consider whether employees are on the TEI lists when making surplus decisions [added to revised Memorandum of Agreement, October 30, 2015].

3. If there is more than one employee eligible to exit under the TEI, the determination of who will exit under the TEI shall be based on seniority. [or]

If there is more than one employee eligible to exit under the TEI within the same workplace, the determination of who will exit under the TEI shall be based on seniority [amended, October 30, 2015].

Analysis

5I have now issued several decisions on the scope of the Employer’s discretion to allow or deny a request for TEI: Koeslag et al., issued January 12, 2016, Vadera, June 28, 2018, Kimmel, November 29, 2018, Anich, August 9, 2019, Klonowski et al., November 7, 2019, Fairley et al., February 12, 2020, Alcock et al., March 2, 2020, Bowman et al., March 9, 2020, Cullen et al., June 15, 2020, Koriscil et al., June 18, 2020 and Heath et al., March 3, 2021.

6I have previously concluded that:

i. 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;

ii. Despite this broad discretion, the ordinary principles for the proper exercise of discretion apply. Consequently, when the Employer considers requests for TEI, the decision cannot be based on irrelevant considerations or otherwise violate the principles set out in Re Kuyntjes, GSB #513/84 (Verity); Koeslag, supra.

iii. While recognising that there may be a number of approaches that the Employer could adopt 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 exercising their discretion: Vadera, supra.

iv. The Employer can offer the TEI as a targeted inducement to encourage employees to voluntarily retire or resign, allowing them to eliminate a position without the need to surplus other employees who wish to remain. However, the Employer is not required to approve all requests for TEI, even where there is evidence of change or transition. The Employer retains the discretion to determine when and how the TEI will be offered: Kimmel, supra and Anich, supra.

v. An identical outcome for many grievors does not automatically mean that the Employer improperly exercised their discretion by applying a blanket rule. Where the common denominator among grievors was a rational consideration that was reasonably related to achieving transformation, the discretion was properly exercised: Klonowski, supra.

vi. Absent evidence of bad faith or discrimination, the approval of an earlier request for TEI, on its own, is not sufficient to establish an improper exercise of discretion: Koroscil, supra. Similarly, the approval of subsequent requests does not warrant an automatic conclusion that the decision to deny an earlier request was arbitrary or unreasonable. Inevitably, timing matters. A different outcome may result from the timing of an employee’s request for TEI: Heath, supra.

7After careful consideration of the submissions made by the parties, I have applied the principles established in earlier cases to the facts that pertain to these grievors and determined that the Employer properly exercised its discretion when it considered their requests to exit under the TEI. The grievances are therefore dismissed.

Dated at Toronto, Ontario this 14th day of April, 2021.

“Appendix A to the ASF”

1. Lale, Deborah - 08OAD Office Administration 08

2. Herr, Roberta - 08OAD Office Administration 08

3. Howell, Kay - 11OAD Office Administration 11

4. Leger, Leo - 09OAD Office Administration 09

5. Prasad, Sarasu - 09OAD Office Administration 09

6. Lidstone, Beverley - 09OAD Office Administration 09

7. Ligotti, Maria - 08OAD Office Administration 08

8. Kash, Beatrice - 10OAD Office Administration 10

9. MacDonald, Alan-Lee - 10OAD Office Administration 10

10. Hopkins, Sandra - 11OAD Office Administration 11

11. Freeman, Diane - 08OAD Office Administration 08

12. Hayes, Karen - 08OAD Office Administration 08

13. Fantin, Mary – 20203 Financial Officer 2

14. Murphy, Jeanette - 08OAD Office Administration 08

15. Kramer, Christine - 08OAD Office Administration 08

16. Clark, Josephine - 09OAD Office Administration 09

17. Vicere Zamai, Sylvia - 08OAD Office Administration 08

18. Marjorie Skorich - 09OAD Office Administration 09

19. Linda Bemben - 11OAD Office Administration 11