GSB# 2020-0980
UNION# 2020-0232-0001
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Roberts)
Union
- and -
The Crown in Right of Ontario (Ministry of Agriculture, Food, and Rural Affairs)
Employer
BEFORE
Reva Devins Arbitrator
FOR THE UNION
Chris Bryden Ryder, Wright, Blair & Homes Counsel
FOR THE EMPLOYER
Regina Wong Treasury Board Secretariat Counsel
HEARING
December 2, 2021
Decision
1This grievance relates to the handling of the Grievor’s application for enhanced benefits under Appendix 46, the Transition Exit Initiative (TEI). In particular, the Union alleges the Grievor, Mr. Roberts, was bullied into accepting an exit date that was not mutually agreeable. It alleges that Mr. Selby, the Grievor’s direct manager, approved an exit date when the Grievor submitted his request for TEI, and that he subsequently refused to honor the agreement, unfairly pressuring the Grievor to depart the OPS on an earlier date than was previously agreed. The Employer denied any pre-arranged agreement. It submitted that Mr. Selby did not accept the Grievor’s preferred exit date, and, in any event, did not have the authority to approve the request.
2The parties agreed to an expedited mediation/arbitration process under Article 22.16 and that, as a preliminary matter, I would determine whether the Grievor and Mr. Selby, on behalf of management, had reached a pre-arranged, mutually agreeable exit date of December 31, 2020. The Union provided particulars of the grievance, and both parties submitted comprehensive documents, oral evidence, and submissions. The parties also agreed that I would provide a written decision, with brief reasons.
Analysis
3The Grievor submitted a written request for TEI, annotated to include a preferred exit date of December 31, 2020, which he and Mr. Selby signed on February 28, 2019. The Union relies on this signed request as evidence that a pre-arranged exit date was mutually agreed upon by Mr. Roberts and Mr. Selby. Although the Union accepts that Mr. Selby did not have the authority to approve a request for TEI, it submitted that he did have authority to agree to an exit date and that signing the request confirmed his approval.
4Mr. Selby adamantly denies agreeing to an exit date of December 31, 2020, and says he signed the request, as required, solely to indicate that the request had been received. Indeed, he did not recall seeing an exit date, which was not brought to his attention and was added by the Grievor as an addendum to the standard form. Mr. Selby’s evidence is supported by his contemporaneous email forwarding the Grievor’s request and advising that he does not support an exit date beyond 2019. While the Grievor was not copied on this email, he acknowledged that Mr. Selby told him during their meeting on February 28, 2019, that the Employer would not agree to an exit date at the end of 2020. The Grievor says that he did not believe that Mr. Selby really meant it when he told him the date was not acceptable and interpreted his comment as sarcasm.
5There were numerous other documents and exchanges that advised the Grievor that management did not treat his preferred exit date as mutually agreeable or approved. This communication was sent throughout the period when Mr. Roberts’ TEI request was being considered and afforded him ample time to clarify any misunderstanding or withdraw his request for TEI if he was not able to leave at an earlier date.
6I accept that the Grievor has a sincere and genuine belief that Mr. Selby initially agreed to allow his exit from the OPS on December 31, 2020. However, after a careful review of the documents, Mr. Selby’s evidence, and the Grievor’s evidence, including his particulars, I have concluded that this was a mistaken belief, and that his preferred departure date was never accepted by the Employer or Mr. Selby. The overwhelming preponderance of evidence indicates that the Grievor was consistently told that he would have to leave before December 31, 2020, if his request for TEI was approved.
7While I have not arrived at any conclusions on the balance of the Union’s allegations, I have decided that there was no pre-arranged, agreement regarding the date that the Grievor would be allowed to exit the OPS. The matter is remitted back to the parties to advise the Board how it would like to proceed after considering my conclusion.
Dated at Toronto, Ontario this 6th day of January 2022.