GSB#2013-1446, 2013-1574, 2013-1696
UNION#2013-0999-0049; 2013-0999-0063; 2013-0999-0069
Appendix “A” attached
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 – Powell 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
March 3, 2023
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 a Book of Documents that contained various documents, including the grievance, Will Say Statements where provided, and accompanying documents, that set out the circumstances that relate to each grievor and the Ministry’s response. Generally, these grievances were filed by 10 grievors1, none of whom were approved to receive enhanced benefits under the TEI before they retired from the Ontario Public Service (“OPS”).
Appendix 46
3The relevant provisions of Appendix 46 are set out below. I have included the initial provision and noted where it was subsequently amended:
All regular, regular part-time and flexible part-time employees will be eligible to apply to a Transition Exit Initiative (TEI).
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].
- 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
4I 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 several 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.
viii. The failure to grant a request for TEI on compassionate grounds is not an improper exercise of discretion. Nor is it evidence of bad faith where the Employer reclassifies a position, or reassigns, all or part of the grievor’s job duties to another location, or to an accommodated employee after a grievor retires: Bowman, issued March 4, 2020; Othman and Desjardine, issued June 23, 2022); and Hachey, issued on June 24, 2022.
5I 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.
6After careful consideration of the evidence and submissions of the parties, I have applied the principles established in earlier cases to the facts that pertain to these grievors and determined that the Employer properly exercised its discretion when it considered the grievors’ requests to exit under the TEI.
7The grievances are therefore dismissed.
Dated at Toronto, Ontario, 23rd day of March 2023..
Appendix A
Name
Ministry
GSB#
Union#
Powell, Mark
MECP
2015-1606
2015-0555-0011
Devita, Sara
MECP
2015-1605
2015-0555-0010
Lyon, Robert
MECP
2015-1831
2015-0555-0016
Hicks, Cathy
MCU
2015-3073
2015-0736-0009
Wright, Robert
MLTSD
2015-0966
2015-0630-0003
Deluca, Alfonso
MLTSD
2014-4388
2014-0205-0024
Benedit, Elmo
MOF
2015-3143
2016-0599-0001
Syed, Farida
MOH
2016-1017
2016-0340-0007
Reece, Cherie
MECP
2014-3920
2014-0532-0018
Conway, Dan
MTO
2015-3280
2016-0428-0003