GSB#2013-1446, 2013-1574, 2013-1696

UNION# 2013-0999-0049, 2013-0999-0063, 2013-0999-0069

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union – Hachey et al)

Union

• and -

The Crown in Right of Ontario (Treasury Board Secretariat)

Employer

BEFORE

Reva Devins

Arbitrator

FOR THE UNION

Ed Holmes Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

George Parris Treasury Board Secretariat Legal Services Branch Counsel

HEARING

February 25, 2020 and April 14, 2022

Decision

1These grievances are part of a series regarding the operation of the Transition Exit Initiative, (“TEI”), under Appendix 46 of the Collective Agreement. The parties agreed that the current matters should be determined in accordance with Article 22.16 of the Collective Agreement.

2The parties provided Agreed Statements of Fact, along with supporting documents. Generally, these grievances were filed by three grievors who held administrative and support positions with the Ministry of the Solicitor General. Each grievor applied for enhanced retired benefits under Appendix 46, however, the Employer did not approve their requests prior to their retirement and departure from the Ontario Public Service (the “OPS”).

3As they have argued in previous cases, the Union alleges that the Employer failed to properly exercise its discretion when it reviewed the grievors’ requests. The Employer maintained that there was an ongoing need for the grievors’ positions, and, therefore, it determined that the exit of these employees did not support transformation of the OPS.

Agreed Statement of Fact

4The parties submitted an Agreed Statement of Fact (‘ASF’):

1. A number of employees in various positions employed by the Minister of the Solicitor General (the “Ministry”) working in a number of institutions/workplaces applied for TEI between January 2013 to December 2018 (the “TEI Applications”).

2. There were three (3) individual applicants: Grace Charlebois (OAG 11); Diane Hachey (OAG 8); and Cindy Rows (OAG 9).

3. The Ministry did not approve any of the TEI applications filed by the above noted.

4. The Union filed grievances between January 2013 and December 2018 on behalf of the above-noted employees whose TEI applications were not granted (the “TEI grievances”).

5. For the purposes of these grievances, the Employer does not dispute that the requirements of paragraph 2(i) of Appendix 46 were met. This is without prejudice to other matters.

6. It would be the Ministry’s evidence that it did not grant the above-noted TEI Applications for the following reasons: At the time of the TEI Applications and the TEI Grievances, the Ministry had no intention of reducing the number of employees in the impacted workplaces and the exit of the above noted applicants would not support the transformation of the Ontario Public Service. The Union does not have evidence to the contrary.

7. Each of the grievors retired after their TEI application was filed and remained pending.

a. Grace Charlebois applied for TEI on March 25, 2013 and retired on January 31, 2015. It would be the Ministry’s evidence that the position of Records Supervisor (Position #00026345) at the Monteith Correctional Complex was filled on September 15, 2014 and continues to be required. The union does not have evidence to the contrary.

b. Diane Hachey applied for TEI on April 28, 2014. Her application was supported by her manager, Dennis Porlier, but was not approved. She retired on October 31, 2015. She was rehired into a P&P Administrative Support Clerk position on March 7, 2016 until November 11, 2018. The position of P&P Administrative Support Clerk (Position #00026764) at the Geraldton P&P Office was re-filled on February 19, 2019 and continues to be required, but only on a part time basis. The Union does not have evidence to the contrary. Prior to her retirement, the position occupied by Ms. Hachey was a full time position. Following her retirement, the position did not continue on a full time basis. The position which Ms. Hachey was rehired in March 2016 was posted and filled as a part time position involving 4 days per week (29 hours). The position has continued to be posted and filled as a part time position to date.

c. Cindy Rows applied for TEI on March 25, 2013 and retired on July 1, 2015. She was rehired into the same position on a fixed term contract on July 1, 2015. The position of Personnel Clerk (Position #00026340) at the Monteith Correctional Centre was filled on a permanent basis on August 17, 2015 and it would be the Ministry’s evidence that it continues to be required. Rows had continued to work on various contracts up until January 1, 2019. The Union does not have evidence to the contrary.

Appendix 46

5The relevant provisions of Appendix 46 are set out below. I have included the initial provision and noted where it was subsequently amended:

8. All regular, regular part-time and flexible part-time employees will be eligible to apply to a Transition Exit Initiative (TEI).

9. An employee may request in writing voluntary exit from employment with the OPS under the TEI, which request may be approved by the Employer in its discretion [amended to in its “sole” discretion, October 30, 2015]. The Employee’s request will be submitted to the Corporate Employer. The Employer’s approval shall be based on the following considerations:

i. At the time that an employee TEI request is being considered, the Employer has plans to reduce positions in the OPSEU bargaining unit; and

ii. The Employer has determined in its discretion that the employee’s exit from employment supports the transformation of the Ontario Public Service.

iii. The Employer will consider whether employees are on the TEI lists when making surplus decisions [added to revised Memorandum of Agreement, October 30, 2015].

10. If there is more than one employee eligible to exit under the TEI, the determination of who will exit under the TEI shall be based on seniority. [or]

If there is more than one employee eligible to exit under the TEI within the same workplace, the determination of who will exit under the TEI shall be based on seniority [amended, October 30, 2015].

Analysis

6I have now issued a series of decisions on the scope of the Employer’s discretion to allow or deny a request and concluded that:

i. Appendix 46 confers a broad discretion on the Employer to determine whether granting a request for TEI would support its vision of transformation of the OPS: Koeslag et al., issued January 12, 2016.

ii. Despite this broad discretion, the ordinary principles for the proper exercise of discretion apply. Consequently, when the Employer considers requests for TEI, the decision cannot be based on irrelevant considerations or otherwise violate the principles set out in Re Kuyntjes, GSB #513/84 (Verity); Koeslag, supra.

iii. While recognising that there may be a number of approaches that the Employer could adopt with respect to transformation of the public service, it remains in the Employer’s sole discretion to decide whether an ‘employee’s exit from employment supports transformation’ and, in so doing, to determine which factors are relevant to exercising their discretion: Vadera, issued June 28, 2018.

iv. The Employer can offer the TEI as a targeted inducement to encourage employees to voluntarily retire or resign, allowing them to eliminate a position without the need to surplus other employees who wish to remain. However, the Employer is not required to approve all requests for TEI, even where there is evidence of change or transition. The Employer retains the discretion to determine when and how the TEI will be offered: Kimmel, issued November 29, 2018 and Anich, August 9, 2019.

v. An identical outcome for many grievors does not automatically mean that the Employer improperly exercised their discretion by applying a blanket rule. Where the common denominator among grievors was a rational consideration that was reasonably related to achieving transformation, the discretion was properly exercised: Klonowski, issued November 7, 2019.

vi. Absent evidence of bad faith or discrimination, the approval of an earlier request for TEI, on its own, is not sufficient to establish an improper exercise of discretion: Koroscil, June 18, 2020. Similarly, the approval of subsequent requests does not warrant an automatic conclusion that the decision to deny an earlier request was arbitrary or unreasonable. Inevitably, timing matters. A different outcome may result from the timing of an employee’s request for TEI: Heath, March 3, 2021.

vii. A TEI application does not survive the departure of an employee from the OPS. Appendix 46 is not available to employees after they retire, or their employment relationship is severed. TEI provides enhanced benefits to an employee when the Employer determines that their “exit from employment supports the transformation of the OPS”. When an employee is no longer an active employee, by definition, they cannot exit again and Appendix 46 has no application: Thompson, issued May 28, 2021.

7In this instance, the Union continued to argue that the Employer employed an overly narrow interpretation of Appendix 46 and that it failed to consider overall objectives to reduce complement in the OPS. With respect to Ms. Hachey, her position was not replaced on a full-time basis. The Employer took advantage of her retirement to fill the position part-time and allocate .2 of her position to another location. Ms. Hachey’s full-time position was eliminated, and her departure assisted in the transformation of the OPS. Consequently, in the Union’s submission, she should have been offered TEI.

8The Employer maintained that the general issue raised with respect to the exercise of its discretion has already been determined, and the Union did not raise any new arguments with respect to Ms. Charlebois and Rows. Ms. Hachey’s situation was somewhat different, however, the Employer argued that while it reallocated part of her position when she retired, it had no intention of giving up her FTE. Nor was there any operational imperative or business need to offer the TEI to the grievor. The Employer was content to leave her in a full-time role for as long as she wanted to remain in her position. In these circumstances, the Employer maintained that it acted reasonably and in good faith in the exercise of its discretion.

9There is no dispute that the positions left vacant by Ms. Charlebois and Rows were filled and the Union has no evidence to dispute the Employer’s assertion that it had no need to reduce complement in the grievors’ workplace. While I appreciate the continued disappointment and frustration of long service employees who believe their applications for TEI should have been approved, I have already determined that the Employer has a broad discretion to determine whether the exit of an employee would assist in the transformation of the OPS.

10With respect to Ms. Hachey, her position was changed after she retired and the position subsequently filled as a part-time position in that office, with part of the FTE being reallocated to another office in the same region. This is clearly a circumstance where the Employer could have determined that granting a TEI would be beneficial. However, as I have held in previous cases because it could have adopted that view does not mean that it is compelled to do so. The Employer determined that there was no urgency to redeploying a small percentage of Ms. Hachey’s FTE, but did so when presented with the opportunity. These circumstances alone do not give rise to a finding that the decision to deny her request for TEI was unreasonable, arbitrary or made in bad faith.

11After careful consideration of the evidence and submissions of the parties, I have determined that these grievances can be decided based on the principles set out in previously decided case. In this case, the evidence does not establish an improper exercise of the Employer’s discretion.

12The grievances are therefore dismissed.