GSB# 2008-3458

UNION# 2009-0234-0013

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Haring et al)

Union

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Ken Petryshen

Arbitrator

FOR THE UNION

Christopher Bryden Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

George Parris Treasury Board Secretariat Legal Services Branch Counsel

SUBMISSIONS

July 30, 2021

DECISION

1The Haring group grievance before me is dated January 23, 2009. The grievance has 6 signatories, all of whom claim entitlement to the Custodial Responsibility Allowance (“CRA”). The signatories to the grievance are Ms. Debbie Haring, Ms. Catherine Hollins, Ms. Katie Vanderyt, Ms. Judy Self, Ms. Kelli-Anne Quinn and Mr. Rick Carmichael. They were classified at the relevant time as Rehabilitation Officers 2 (“RO2”) and worked at the Maplehurst Correctional Complex. This group grievance falls within the second of 5 groupings of outstanding CRA grievances.

2The Union filed particulars setting out the duties and responsibilities of the employees in this grouping and Union counsel provided written submissions for the purpose of establishing a prima facie case for entitlement to the CRA. This was followed by written submissions from Employer counsel and written reply submissions from Union counsel. It was assumed that the particulars filed by the Union to support its best case accurately reflect the duties and responsibilities of each employee. The issue for determination is whether a prima facie case had been made out for entitlement to the CRA for each grievor.

3The CRA provision has been a feature of the Collective Agreement for many years. The conditions for entitlement to the CRA can be found in Appendix COR2 of the Collective Agreement for the Correctional Bargaining Unit. It provides that employees in designated Ministries are entitled to the CRA if they fulfill all of the following requirements:

(a) they are not professional staff such as teachers, nurses, social workers or psychologists;

(b) the positions to which the employees are assigned are not covered by classes which already take into account responsibility for the control of offenders or wards, such as Correctional Officers, Industrial Officers, Supervisors of Juveniles, Observation and Detention Home Workers, Recreation Officers (Correctional Services), Trade Instructors and Provincial Bailiffs;

(c) (i) they are required, for the major portion of their working time, to direct offenders or wards engaged in beneficial labour;

or

(ii) as group leaders/lead hands, they are directly responsible, for a major portion of their working time, for operations involving the control of a number of offenders or wards engaged in beneficial labour; and

(d) they are responsible for the custody of offenders or wards in their charge and are required to report on their conduct and lay charges where breaches of institutional regulations occur.

4I find it unnecessary to describe the duties performed by each grievor in detail. Suffice it to say that the grievors performed inmate classification duties, temporary absence pass duties and WorkBoard duties. Some of the grievors were also involved in assessing and interviewing inmates who applied for TAPs to work in the “Cook Chill” program, community work gangs or Stores. In performing these duties, the grievors did spend the majority of their working time interviewing and supervising inmates.

5The Employer took the position that some of the duties the Union relied upon with respect to Ms. Haring, Ms. Quinn and Ms. Vanderyt were post grievance duties and that these duties could not be utilized to support their claim for entitlement to the CRA. I find it unnecessary to decide this issue because the reliance on any post grievance duties does not assist the Union’s position in this case.

[6] What is clear from the particulars is that the duties of the grievors relied on by the Union do not meet all of the requirements necessary for entitlement to the CRA. Most importantly, the grievors do not direct inmates while they are engaged in beneficial labour for the majority of their working day as this requirement was interpreted in the CRA decisions dated March 9, 2011 and May 28, 2021. The fact that the grievors spend the majority of their time interviewing and supervising inmates illustrates that their position is inmate focused such that it is likely that they were in a position that already took into account responsibility for the control of inmates.

7In the decision dated May 28, 2021, in pages 10 to 12, I addressed and dismissed claims by grievors who were engaged in duties that are similar to the duties performed by the grievors in the instant case. There is nothing in the duties performed by the grievors covered by the group grievance which suggest that a different result is warranted.

8It is my determination that a prima facie case for entitlement to the CRA has not been established for the grievors. Accordingly, the Haring group grievance dated January 23, 2009, is hereby dismissed.