GSB# 2020-2460

UNION# 2020-5112-0289

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Nelson)

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.

2Leo Nelson filed a grievance dated December 24, 2020 claiming that the Employer had failed to pay him pandemic pay despite his working at the TSDC, albeit in a Union role where the Union bears the cost of his wages. By way of remedy, the grievor is claiming the lost monies and damages for the failure to be paid the pandemic pay rates.

3In the early stages of the COVID-19 pandemic, the provincial government enacted a program to top up the pay of those Ontario workers who had to work in a congregate care setting or who worked primarily with vulnerable populations, where maintaining physical distancing was difficult or not possible. Many workers in health care, long term care, retirement homes, some social services, and corrections were eligible for the Temporary Pandemic Pay (“TPP”). It was paid for the period of April 24 to August 13, 2020, a sixteen week period. The government provided funding to employers in order to pay workers in the designated fields a $4/hr. Temporary Hourly Pandemic Pay top up to their regular hourly wages, and as well, if an employee worked at least 100 hours in a designated four week period, they would be eligible to receive a Monthly Lump Sum of $250. There were four such designated 4 week periods during the sixteen week program.

4Within Corrections, only those working in a correctional institution were eligible for the TPP. Hence, as an example, if a Probation and Parole officer worked in an office, they were not eligible for the TPP. However, if a Probation and Parole officer worked at a correctional institution, they were eligible to receive TPP.

5Union Locals with over 650 members have access to union approved leave for some members in order to assist in the support of the Local’s work. The grievor is on such an approved union leave as Local 5112 has over 650 members. The grievor, although classified as a CO2, is therefore not performing the regular duties of a Correctional Officer, but instead works in supporting the Local and its members. Part of the arrangement is that the Employer continues to pay the grievor’s wages, benefits, pension contributions, etc. while the grievor is seconded to work with the Local, but the Employer bills the Union for the grievor’s wages.

6No employee in the grievor’s position, on a paid union leave to work with their Local, was paid the TPP as they were not working in a congregate setting for the Employer in a correctional institution. Two other Locals in correctional facilities also have persons who are on approved union leaves working for them (Central East Correctional Centre and Maplehurst/Vanier). None of them received the TPP either.

7While the grievor may be of the view that it is discriminatory for the Employer not to pay him the TPP, it is not apparent how that is so if the grievor was not working in the capacity of a Correctional Officer at the TSDC during the period in question. In any event, since the TPP is not a part of the collective agreement between the parties, it is unclear whether I would have the jurisdiction to address this grievance as it is raising an allegation of non-payment from a program that is outside the provisions of the agreement.

8Having 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.