GSB# 2011-0510; 2011-0541; 2011-0542; 2011-0569; 2011-0793

UNION# 2011-0369-0041; 2011-0369-0042; 2011-0369-0043; 2011-0369-0044;

2011-0369-0053

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Skelton 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

October 28, 2021

DECISION

1I have five grievances before me in which each grievor claims entitlement to the Custodial Responsibility Allowance (“CRA”). These grievances constitute the third of 5 groupings of outstanding CRA grievances. The details of the five grievances in this grouping can be described as follows. All of these grievances were filed by employees who were classified as Rehabilitation Officers 2 (“RO2”) and worked at the Central North Correctional Centre. Ms. Sue Skelton and Ms. Kelly Parsons (Moreau) filed their grievances on February 1, 2011. Ms. Barb Clare-Powell and Ms. Charlene Schaper filed their grievances on February 17, 2011. The grievance filed by Ms. Ruth Hamel is dated May 26, 2011.

2The Union filed particulars setting out the duties and responsibilities of the employees in this grouping. Union counsel also 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.

4The particulars demonstrate that the grievors perform various duties in relation to inmate classification, orientation, educational sessions, work placement board (“Work Board”), temporary absence passes and discharge planning. 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. The particulars establish that the grievors spent the majority of their working time interviewing and supervising inmates while performing their duties. In and around 2009 and 2011, the grievors attended Special Custodial training.

5One of the conditions for entitlement to the CRA in Appendix COR2 is that an employee is required to direct offenders engaged in beneficial labour for a major portion of their working time. In previous CRA decisions dated March 9, 2011 and May 28, 2021, I determined that this condition required an employee claiming the CRA to be directing offenders while they are engaged in beneficial labour for a major portion of their working time. What the particulars do not establish in this instance is that, for the major portion of their working time, the grievors were engaged in directing inmates while the inmates were performing beneficial labour. Another condition for entitlement to the CRA is that an employee is not assigned to a position which already takes into account responsibility for the control of inmates. 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.

6In the CRA decisions dated May 28, 2021, and June 16, 2022, I addressed and dismissed claims for entitlement to the CRA by grievors who performed duties similar to those performed by the grievors in this case. The June 16, 2022 decision dealt specifically with claims by RO2s at a different correctional institution. The similarity in duties preformed by the grievors in the second and third grouping of CRA grievances suggest that the same result is warranted.

7It is my conclusion based on the particulars and the written submissions that a prima facie case for entitlement to the CRA has not been made for the grievors. Accordingly, the grievances referred to in paragraph 1 of this decision are hereby dismissed.