GSB#2020-1674

UNION#2020-0582-0098

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Wong)

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

September 28, November 1, 2022 and February 23, 2023

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.

7Eric Wong was a Fixed-Term (FXT) Correctional Officer (CO) at the Toronto East Detention Centre (TEDC) when on August 5, 2020 he filed a grievance claiming breaches of Articles 2 and 28 of the collective agreement. He was first hired in March 2018. Mr. Wong is seeking full credit for his military service and the recalculation of his Continuous Service Date (CSD).

8According to the Employer, in and around July 18, 2018 the grievor began to work at the City of Toronto/Toronto Transit Commission as a Special Constable. The grievor advised the Employer by email on July 10, 2018 that while he was going to be taking the City job, he wanted to continue to work at the TEDC on a casual basis. At that time, the Employer advised him that he could take that position so long as he continued to work some shifts in his FXT CO capacity at the TEDC. Mr. Wong did so for a short while, but as of around October 1, 2018 stopped providing any availability.

9By a letter dated January 24, 2019 the Employer informed the grievor that he was on an unauthorized leave, and he was directed to respond by February 11, 2019. It was a warning that the Employer may consider him to have abandoned his FXT CO position if he did not provide availability and work at the TEDC. The grievor responded to the Employer by email on February 11, 2019 to indicate that he had been away on military training and had just received the letter upon his return. He indicated he had not realized he was on an unauthorized leave, apologized, and indicated he would call the Deputy Superintendent the following day.

10Following his discussion with TEDC management, it appears that the grievor decided to resign from his job with the City of Toronto, and did so in the week of March 18, 2019, with his last day worked there on April 14, 2019. However, in the interim, Mr. Wong’s next recorded hours at TEDC were in the week of March 4, 2019. By that date, he had not worked at the TEDC for 22 weeks.

11The implication of the grievor not having worked at the TEDC at all for 22 weeks is significant. FXT seniority is calculated back to the beginning of the employee’s Ontario Public Service employment, or back to the first break in employment which is greater than 13 weeks, or back to a resignation. While the grievor did not resign from his FXT CO position, he had a 22 week break in his employment as he did not work for the Employer at all during the period of October 1, 2018 and March 3, 2019. As a result, when Mr. Wong returned for his first shift on March 4, 2019, his hours began to accrue again from zero as he had already lost any earlier accumulation of hours due to a break of more than 13 weeks.

12The grievor has taken at least two military leaves, for which the Employer granted his requests for military leave, and gave him some credit for those leaves. However, it appears that the grievor believes that the Employer should have given him credit for all of the time he had off during those leaves, and since he did not get full credit, claims that it has affected his CSD upon his rollover into the classified service.

13Mr. Wong’s first “Leave of Absence Request/Authorization” was submitted on May 3, 2019, requesting a leave of absence for military training for May 6, 7, 8, and 10, 2019. This was shortly after he had returned to working at the TEDC. The Employer granted the request for four days of “Canadian Forces Training” leave, and noted that it would be without pay.

14On June 20, 2019 the grievor filed another “Leave of Absence Request/Authorization”, requesting a leave of absence for an approximately six week period between June 24 and August 5, 2019 in order to undergo Primary Reserve Military Police training. The Employer granted the request for the entire period as “Canadian Forces Training” leave, and noted that the grievor would receive one 40 hour week with full pay for the period in question.

15It would appear that is the period when the grievor believes he should have received full credit for the six weeks, rather than for one week.

16Pursuant to Article 28.1, a “Deputy Minister may grant a leave of absence for not more than one (1) week with pay and not more than one (1) week without pay in a fiscal year to an employee in their ministry for the purpose of Canadian Forces Reserve training”.

17As the grievor took more than two weeks in the 2019 year, it is not surprising that he did not get 40 hours of credit for all of the weeks he was off on his second leave of absence for military training.

18Having considered the parties’ submissions and the facts of this case, I find that the grievor lost all accumulated hours of work from the period before October 2, 2018 as a result of a more than 13 week break in his employment, and that in 2019 he received recognition for the maximum amount he could have for his military leaves of absence. As such, this grievance is dismissed.