GSB# 2020-1535

UNION# 2020-5112-0193

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Henry 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

Emily Lewis Treasury Board Secretariat Employee Relations Advisor

HEARING

April 21, 2022

Decision

1The Employer and the Union at the Toronto South Detention (“TSDC”) agreed to participate in mediation-arbitration in accordance with the Local Mediation-Arbitration Protocol that has been negotiated by the parties. Should mediation not result in resolution of a grievance, pursuant to the Protocol, they have agreed to a mediation-arbitration process by which each party provides the Arbitrator with their submissions setting out their respective facts and the authorities they may be relying upon. This decision is issued in accordance with the Protocol and with Article 22.16 of the collective agreement, so that it is without precedent or prejudice to any other matters between the parties, and is issued without detailed written reasons.

2On July 19, 2020 a group grievance was filed by nine Correctional Officers (“CO”) at the TSDC (Herman Henry, Khalid Dawjee, Peter Hogg, Brian Curran, Sheldon Small, Harminder Singh, D. Dosanjh, M. Trzaska, and Tania Senechal) (the “Henry Group”). The grievors claimed that the Employer had breached various provisions of the collective agreement, and in particular one regarding a rate of pay. The grievance asserted that after the Bailiff Unit had been disbanded in September 2019, the transfers of inmates between institutions had been conducted by Correctional Officers at the regular CO rate of pay. The grievors claimed that they should be paid the same as what the Bailiff Unit had received for the same work, including travel time and mileage. By way of remedy they sought “full redress”.

3Although the grievors have been advised of scheduled TSDC mediation/arbitration sessions on a number of occasions since at least 2021, they have failed to attend at any time. The parties therefore made their submissions based on the facts known to them.

4Prior to September 2019 there was a department of Provincial Bailiffs who were assigned to transfer inmates between institutions. In or around September 2019 the Employer determined to collapse the Provincial Bailiff department and to assign COs to do the inmate transfers as part of their duties.

5Mr. Henry had been a CO who backfilled in the Provincial Bailiff department prior to it being disbanded. When he worked in a bailiff capacity, he was paid for time and travel to first report to the Bailiff Regional Office, and once there, he would be paid thereafter at the Provincial Bailiff wage rate for his time performing the transfer.

6Prior to the filing of the grievance, the grievors had been assigned to do inmate transfers from their home institution, the TSDC, to the Maplehurst Correctional Complex, and had not been paid for time and travel, or what they believed was the higher Provincial Bailiff’s hourly rate of pay. That led to the filing of this grievance.

7However, following the last round of collective bargaining, which led to the January 1, 2018 to December 31, 2021 collective agreement, the top CO2 wage rate had surpassed the Provincial Bailiff 1 rate. As an example, since this grievance was filed on July 19, 2020, one may look at the top wage rates for a CO2 (which is what the grievors were) and the top wage rate for a Provincial Bailiff 1: the CO2 hourly rate as of July 1, 2020 was $37.93 and the Provincial Bailiff 1 hourly rate as of that date was $37.36. Even if the grievors had been entitled to receive the Provincial Bailiff wage rate, which in my view they were not, the latter was a lower hourly wage rate.

8Since the grievors were working at the TSDC, and since they were assigned to inmate transfers after they arrived at work, it is difficult to see why they would have been entitled to be paid for time and travel. Once they commenced working on a transfer, they were already being paid, and as well, as outlined above, their rate of pay was in any event higher than what the Provincial Bailiff rate would have been.

9Having considered the submissions of the parties, and for the reasons outlined above, I can find no breach of the collective agreement, and this grievance is therefore dismissed.