GSB#2021-0258

UNION#2020-0719-0005

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (McConomy)

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

Michelle LaButte Ministry of the Solicitor General Manager, Employee Transition Unit

HEARING

March 7, 2022 and September 28, 2022

Decision

1Since the spring of 2000 the parties have been meeting regularly to address matters of mutual interest which have arisen as the result of the Ministry of the Solicitor General as well as the Ministry of Children, Community and Social Services restructuring initiatives around the Province. Through the MERC (Ministry Employee Relations Committee) a subcommittee was established to deal with issues arising from the transition process. The parties have negotiated a series of MERC agreements setting out the process for how organizational changes will unfold for Correctional and Youth Services staff and for non-Correctional and non-Youth Services staff.

2The parties agreed that this Board would remain seized of all issues that arise through this process and it is this agreement that provides me the jurisdiction to resolve the outstanding matters.

3Over the years as some institutions and/or youth centres decommissioned or reduced in size others were built or expanded. The parties have made efforts to identify vacancies and positions and the procedures for the filling of those positions as they become available.

4The parties have also negotiated a number of agreements that provide for the "roll-over" of fixed term staff to regular (classified) employee status.

5Hundreds of grievances have been filed as the result of the many changes that have taken place at provincial institutions. The transition subcommittee has, with the assistance of this Board, mediated numerous disputes. Others have come before this Board for disposition.

6It was determined by this Board at the outset that the process for these disputes would be somewhat more expedient. To that end, grievances are presented by way of statements of fact and succinct submissions. On occasion, clarification has been sought from grievors and institutional managers at the request of the Board. This process has served the parties well. The decisions are without prejudice but attempt to provide guidance for future disputes.

7David McConomy is a Correctional Officer 2 at the Kenora Jail. On December 6, 2020, Mr. McConomy filed a grievance claiming breaches of Appendix COR8 and Appendix COR4 of the collective agreement, as well as the caselaw.

8In particular, the grievor claims that the Kenora Jail continues not to supply Fixed Term hours in quarterly reports despite a decision issuing in GSB #2018-3484 in which this was upheld as a requirement. The grievor claims that in 2020 the Kenora Jail only posted one list of FXT hours, and that was in advance of an Expression of Interest (EOI) for Rollover into the classified service. Mr. McConomy outlines that the failure of the Employer to post quarterly FXT hours results in rollovers taking weeks and months to be concluded after an EOI is posted.

9By way of remedy, the grievor seeks to have the Employer provide FXT employees at the Kenora Jail with their hours immediately, and on a quarterly basis going forward; that the Employer be required to back date vacation credits, stat credits and benefit credits to all rollover FXT COs who have been affected by the Employer's failure to abide by its quarterly posting obligation; and compensatory damages in the amount of $500 to each FXT CO affected and to Local 719 for the past failures to post hours, and again each time the Employer fails to provide the quarterly hours.

10There is little doubt that the Kenora Jail, and indeed all correctional institutions in the province who are bound by the collective agreement applicable here, have an obligation under Appendix COR8 as follows:

Fixed term employees will have their hours calculated quarterly. These hours will be given to fixed-term employees with a dispute form to be checked and given back to the Employer for final verification. This will be done in order to expedite any further rollovers.

11The Employer does not dispute that it has the obligation to post FXT hours quarterly, but argues in this instance that the grievor is a classified CO, and as such is not personally affected by any alleged failure to post FXT hours. It argues that he therefore cannot bring this individual grievance or seek the remedies as outlined in his grievance.

12Having considered the submissions of the parties, and particularly the fact that this is an individual grievance about FXT hours, and that the grievor is not himself an FXT CO who is affected by the allegations of failure to post quarterly FXT hours, I find that this grievance must be dismissed.