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 – Othman 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

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 with brief reasons for decision.

2The parties provided Will Say Statements that set out the circumstances that relate to each grievor and the Ministry’s response. Generally, these grievances were filed bytwo grievors with Ministry of Community Safety and Correctional Services: Abdel Othman, who held the position of Weaving Shop Supervisor, and Don Desjardine, a Correctional Officer. Both grievors applied for TEI before they retired from the Ontario Public Service (“OPS”).

3Mr. Othman’s request was not approved. His position was reclassified after his retirement, and he asserts that this demonstrates that the Employer acted in bad faith when it denied his request. In his view, the subsequent reclassification of his position indicates that his exit would have assisted with the transformation of the OPS.

4Mr. Desjardine was advised that TEI was not being awarded to any Correctional Officers because there was an ongoing need for these positions. However, the Record of Employment (ROE) that was issued when he retired listed the reason for his departure as “Mandatory retirement/Approved workforce reduction”.

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:

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

2. 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].

3. 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 relied on the reclassification of Mr. Othman’s position to argue that the position was transformed and that therefore TEI should have been granted. In the Union’s submission, although the Grievor’s position was retained after he retired, the Employer realised a net benefit when it reclassified the position to a lower rated, and less costly, classification.

8The Employer maintained that it always had the discretion to reclassify, up or down, whether an incumbent was in the position or not. Although there would be salary protection for affected employees, this is not what the TEI was designed to address. The FTE was still required, and the position was filled after Mr. Othman retired.

9Mr. Desjardine argued that it was bad faith for the Employer to indicate no Correctional Officers would be granted TEI when the provincial budget indicated across the board staff cuts. Furthermore, the ROE issued by the Employer contradicts the position that there was no workforce reduction. He did not, however, allege that other Correctional Officers were granted TEI.

10The Employer argued that the general issue had already been determined. A previous decision determined that the Employer did not act in bad faith when it denied all requests for TEI submitted by Correction Officers. The only differentiating feature in this case was that the ROE issued to the grievor inadvertently used the wrong code. In the Employer’s submission, an error in the ROE does not alter the Employer’s calculation that there was no transformation in Corrections when the Grievor applied for TEI. Ultimately, the error did not change the reality that the Grievor’s position was required and filled upon his departure.

11I appreciate the continued disappointment and frustration of long service employees who believe their applications could and should have been approved. TEI is clearly a significant benefit for retiring employees. Regrettably, as I have already determined, TEI is not a general retirement allowance provided to everyone who requests it.

12After careful consideration of the evidence and submissions of the parties, I have determined that while the circumstances raised in these grievances are somewhat novel, they can be decided based on the principles set out in the previously decided cases. In this case, neither the subsequent reclassification of the position nor the erroneous statement in a ROE establish an improper exercise of the Employer’s discretion.

13The grievances are therefore dismissed.