GSB#2021-0803; 2021-0804

UNION#2020-0737-0007; 2021-0737-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Poulin et al)

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 Ministry of the Solicitor General Manager, Employee Transition Unit

HEARING

September 28, 2022 and November 1, 2022

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 the Solicitor General as well as the Ministry of Children, Community and Social Services restructuring initiatives around the Province. Through the MERC (Ministry Employee 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.

7At the time of the filing of her grievance, Casey Poulin was a Fixed Term (FXT) Correctional Officer (CO) at the Thunder Bay Jail (TBJ or Jail). On May 20, 2021 she filed a grievance claiming that she had wrongly been denied rollover to a regular classified CO position at the TBJ, contrary to various provisions of the collective agreement including Appendix COR43. The remedies sought included to be rolled over effective May 31, 2021, and compensation for all lost income including missed overtime opportunities.

8Ms. Poulin was hired at the Thunder Bay Correctional Centre (TBCC) as an FXT CO on May 22, 2018.

9Christopher Byzewski was a FXT CO at the time of the filing of his grievance on May 24, 2021. His grievance also alleges the wrongful denial of rollover to a regular classified CO position at the TBJ. Mr. Byzewski seeks the same remedies as does Ms. Poulin. He was hired on June 10, 2019 as an FXT CO at the TBCC.

10On October 4, 2019 the Union and Employer reached a Memorandum of Agreement (MOA) pursuant to which COs from the TBCC could choose to be temporarily assigned to work at the TBJ due to a staffing crisis at the Jail. Pursuant to the MOA, those who requested a temporary assignment to the Jail maintained their contract at the TBCC, and remained eligible for rollover at TBCC. As such, they were not eligible for rollovers at the TBJ.

11In early June 2020 Ms. Poulin decided to put in a formal FXT contract transfer request from the TBCC to the TBJ, and contacted the Employee Transition Unit (ETU) staff at the Ministry of the Solicitor General to ask about the process. She was advised by an Employee Transition Analyst (ETA), that she had to complete a Fixed-Term Transfer of Contract Request. On June 8, 2020 Ms. Poulin asked the ETA whether it was possible for her start date at the TBJ, January 6, 2020, to be considered as the date her assignment had commenced. The ETA responded on June 9, 2020 to advise the grievor that the initial start date of her temporary transfer to the TBJ would be used to determine the grievor’s one-year eligibility for rollover purposes. However, she also noted that there were “several factors involved with regards to approval for transfer of fixed-term contracts” and that the grievor would be notified if she was approved for a FXT contract transfer.

12By an email dated August 14, 2020, an Employee Transition Advisor, notified Ms. Poulin that her permanent transfer of fixed-term contract request had been approved effective October 5, 2020. The grievor wrote back on August 15^th seeking confirmation that she would be eligible for rollover one year from the January 6, 2020 date when she had temporarily transferred from the TBCC to the TBJ. By email dated August 16, 2020, the Employee Transition Advisor confirmed that Ms. Poulin would be eligible for rollover after one year from the date she had started at the TBJ.

13According to Mr. Byzewski, Ms. Poulin told him what she had been told by ETU staff. However, he did not complete a Fixed-Term Transfer of Contract Request until much later. Once his request was approved, his transfer of FXT contract from the TBCC to the TBJ was effective on March 15, 2021. At that juncture, based on what Ms. Poulin had been told, he believed that his time “employed” at the Jail would count from January 6, 2020 on.

14On March 19, 2021 the parties reached two Memoranda of Agreement pursuant to which a total of 17 FXT COs from the TBJ could be considered for rollover into regular service vacancies at the TBJ. Para. 2 of both Memoranda stated as follows.

2. Fixed-term Correctional Officers who have entitlements to these positions at TBJ are Fixed-term Correctional Officers who have been working and continue to be employed at TBJ for one (1) year prior to the date of the Expression of Interest posting, as stipulated in the Memorandum of Agreement signed by the parties on October 16, 2018.

15As a result, there were two Expressions of Interest (EOI) posted at the TBJ to permit FXT COs to express interest in the classified positions. The “Area of Search” on the EOI stated:

This posting is open to Fixed-term Correctional Officers who have a minimum of 1,904 straight-time hours in the position of a Fixed-term Correctional Officer and have been working and continue to be employed at the Thunder Bay Jail for one (1) year prior to the date of the Expression of Interest posting.

(Emphasis added)

16On May 14, 2021 the parties reached two Memoranda of Agreement listing the successful candidates for the EOIs, and indicated that the effective date of the rollovers would be May 31, 2021. One had three names on it, and the other had 13 names on it. Although both Ms. Poulin and Mr. Byzewski had expressed their interest in the rollovers, neither of their names were on the lists. That led to the filing of these two grievances.

17The Employer maintains that as a result of my decision in Ontario Public Service Employees Union v Ontario (Solicitor General), 2021 CanLII 26633 (ON GSB) (the “Kenora Jail decision”), regarding a similar situation at the Kenora Jail, it is now clear that in order to be eligible for rollover at an institution, a FXT CO must have formally and permanently transferred their FXT contract to that institution at least one year before the date of the EOI, and must continue to work there at the time of the posting of the EOI. The grievors did not formally transfer their FXT contracts to the TBJ until October 5, 2020 and March 15, 2021 respectively, so neither was eligible for rollover until one year from their respective transfer dates.

18The grievors make similar arguments to those made in the Kenora Jail case, however those have previously been dealt with in the Kenora Jail decision and need not be repeated here. However, this case raises one aspect that did not have to be dealt with in the Kenora case, and that needs to be addressed. It is understandable that Ms. Poulin is particularly dissatisfied with the outcome of the March 2021 EOIs as she had specifically and repeatedly asked staff at the Employee Transition Unit for clarification about whether the one year would run from January 6, 2020 when she had begun temporarily working at the TBJ. She had been assured twice that it would count from that date. For Mr. Byzewski, he was aware of what Ms. Poulin had been told, so he too relied on the information she had received from the Employee Transition Unit.

19A review of the Kenora Jail decision indicates that it was the Employer’s position at the hearing that the one year should run from the date an employee temporarily transferred to a different institution. As such, it is not at all surprising that until the date that the Kenora Jail decision issued on March 23, 2021, that was what staff from the Employee Transition Unit were likely telling FXT COs who asked about this issue. The ETU staff were not seeking to mislead anyone: it was simply that was the Employer’s position on this issue, and it maintained it until the decision came out.

20However, once the Employer had lost its argument before me on this issue, it became clear to both the Employer and the Union that the provisions of their October 16, 2018 MOA govern, and that an FXT CO must be working as a CO, and must have been employed at the institution where the EOI is posted for a minimum period of one year, in order to be eligible for rollover at that institution. If a FXT CO is temporarily working at another institution, they are not “employed” there: they are “employed” at the institution that holds their FXT contract, and they continue to enjoy all rights for rollover at that location.

21The grievors claim that they had also missed out on being rolled over at the TBCC, which had been the institution that held their FXT contracts. However, the evidence before me indicates that Ms. Poulin would only have become eligible for rollover at TBCC from May 22, 2019 on (one year after her hire at TBCC) and remained eligible until October 4, 2020 (as she formally transferred her FXT contract to TBJ as of October 5, 2020). Based on her hours up to March 2020, around which time there had been a rollover at TBCC, Ms. Poulin was approximately 2,000 hours behind the #4 rollover candidate, so she would not have been rolled over.

22Mr. Byzewski would have been eligible for rollover at TBCC as of June 10, 2020 (one year after his hire at TBCC) and remained eligible until March 14, 2021 (as he formally transferred his FXT contract to TBJ as of March 15, 2021). Based on his hours up to March 2020, around which time there had been a rollover at TBCC, Mr. Byzewski was approximately 4,000 hours behind the #4 rollover candidate, so he would not have been rolled over at the TBCC.

23While I understand the frustration of the grievors in this instance, given their particular circumstances, it would nonetheless have been a breach of the parties’ agreements, and contrary to the Kenora Jail decision, for the Employer to have awarded them classified positions in the May 2021 rollovers at the Thunder Bay Jail. Nonetheless, I am advised that both grievors have since been rolled over into classified positions.

24Having considered the submissions of the parties, and for the reasons outlined above, these grievances are hereby dismissed.