GSB# 2021-0655

UNION# 2021-0108-0017

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Peltier-St. Louis)

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

November 1 and December 14, 2022 and submissions received March 24, April 6 and 12, 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.

7At the time of the filing of his grievance on March 31, 2021, Wade Peltier-St. Louis was on an approved leave of absence without pay from the Elgin-Middlesex Detention Centre (EMDC). Prior to the leave of absence, the grievor had been a regular classified Correctional Officer 2 (CO) who had been working in the position of a General Duty Officer. His original date of hire was May 23, 2017. The grievance claims that the Employer breached Articles 2 and 3 of the collective agreement and the Public Service Act of Ontario when it denied Mr. Peltier-St. Louis a return to his regular employment at EMDC after the approved leave of absence. The grievor seeks “Full redress”, by which it is apparent he is seeking to have his employment status returned to that of a classified regular employee rather than as an FXT employee, and to have his past service recognized.

8There is a path of convoluted facts underlying this grievance. On May 27, 2020 the grievor received an offer of employment for a regular full-time Constable position with the Ontario Provincial Police (OPP), which is a part of the Ontario Public Service (OPS). That same day he sent an email request to the EMDC leadership requesting a leave of absence for a six month period as he had been offered a job with the OPP, and wanted to attend training. As that leave of absence was apparently verbally granted on May 28, 2020, the grievor signed and returned his acceptance of the OPP offer on May 28, 2020.

9Also on May 27, 2020 the grievor requested of EMDC management that he be permitted to use his 80 hours vacation bank to cover his shifts between that date and when he was to begin his training at the OPP. On May 28, 2020 Staff Sergeant Mike Derkach granted the request.

10On June 8, 2020 the grievor completed a “Leave of Absence Request” form for the EMDC on which he noted that the reason for the request was “to pursue training/job offer with the OPP”. His leave of absence was approved that same day by the Deputy Superintendent of Administration at the EMDC, for a period from June 14, 2020 to September 14 or 15, 2020. As such, he was on approved vacation before that date, and his leave of absence commenced on June 14, 2020.

11The grievor actually commenced employment with the OPP on or about June 8, 2020. That day he completed and signed the Ontario Provincial Police Association (OPPA) Induction package which included employment and benefit-related information applicable to members of that union. The grievor’s WIN Employee Action Request (WEAR) form for the OPP was submitted on June 7, 2020, and authorized by Inspector Chris Collins of the OPP. Following the commencement of his employment, the grievor served a two week self-isolation period that commenced on June 8^th and started his OPP training on June 21, 2020. Following successful completion of the OPP training, the grievor worked as a full-time OPP Constable for some months. From the time of his employment at the OPP, he was represented by the OPPA.

12It appears from email exchanges put in evidence that on September 11, 2020 the grievor had been in contact with the EMDC, and had been authorized by Superintendent Chillman for a further three month extension of the unpaid leave of absence. Sgt. Marlene Lariviere, the Staff Services Manager at EMDC, advised the grievor in an email dated September 21, 2020 that “as per our conversation you will have to make a decision at the end of the 3 month period whether you are returning to EMDC or resigning your position”. The Employer does not dispute that the grievor was granted an authorized leave of absence until he sought to return to his position at EMDC. However, as will become clear later, it argues that EMDC management erred in authorizing both leaves as it was legally not entitled to do so in the grievor’s circumstances, and that became obvious when he sought to return to Correctional Services.

13By a letter dated April 15, 2021, the grievor advised the OPP that he was resigning from his position with that organization effective May 9, 2021 in order to return to work in Correctional Services. His letter stated as follows:

I would like to notify you that I am officially submitting this letter as my formal resignation letter. I will be resigning from my position as a provincial constable with the Ontario Provincial Police, effective Sunday, May 9, 2021, and will be returning to my previous employment as a Correctional Officer, under the same ministry, at Elgin Middlesex Detention Centre on Monday May 10, 2021 without breaking my service date within the ministry.

14As is clear from the timing of the filing of the grievance on March 31, 2021, the grievor had already been in contact with EMDC regarding his return to his CO position, and at that juncture had been told he would not be returned to his original classified position. In an email dated May 6, 2021 to Ryan Brooke, in the Recruitment Unit of CCPAT at SOLGEN, the grievor appears to have already received a Letter of Appointment from Corrections by that date. Mr. Peltier-St. Louis noted in his message that Mr. Brooke had advised him on the phone that his pay, pension, and benefits would be carried over from the OPP back to Corrections, as had occurred when he went from Corrections to the OPP. The grievor noted that he had not broken his “service date” with the Ministry, and he therefore believed that he should be “red circled” at his previous pay rate. The grievor went on to state “You said over the phone that I would receive all this, and the only thing that would change, would be that I would be coming back as a fixed-term employee instead of a full time employee at the jail (which I was fine with)”, (Emphasis added). The grievor sought clarification that he would be receiving all his pay, benefits and pension as he had discussed with Mr. Brooke.

15Mr. Brooke responded by email dated May 7, 2021 to say that “we discussed that, as the rehire policy states, you will return at the same classification and salary that you separated from corrections (i.e. you will go back to a fixed-term CO2 and the salary you had on the date you separated) …”

16On May 14, 2021 the grievor signed a manually revised May 7, 2021 offer of employment letter, noting that he was returning as a CO2 at a rate of $34.26 per hour in accordance with Mr. Brooke’s email. According to the employment letter, the term of his FXT contract was May 10 to November 10, 2021, and was subject to renewal.

17The WEAR form that was completed and submitted by the EMDC for the grievor upon his return to that institution noted him as a “New Hire/Rehire”. In the “Comments” section it stated “Effective May 10, 2021 fix-term rehire. Less than 13 weeks break in service CSD remains as May 23, 2017”. The Employer concedes that the last sentence of the “Comments” above was in fact incorrect as when the grievor resigned from the OPP Constable job, he effectively resigned from the OPS, and that constituted a break in his service, so his original Continuous Service Date was lost. That issue will be addressed later.

18The Employer argues that the Correctional Officer Re-hire and Re-training Policy (the “Policy”) is applicable to the grievor’s situation. Pursuant to that Policy, individuals who have previous work experience in adult institutions and wish to be rehired as a FXT CO, must apply through the established recruitment processes. The Policy also states (at p. 2) that if an individual is re-employed within six months of separation from Correctional Services, they will be reappointed to the same class and salary they had at the time of separation, provided they have met all of the required criteria for rehire.

19The Employer maintains that when Mr. Peltier-St. Louis sought to return to his job as a CO at the EMDC, he had been told by the Employer that he would have to resign from his full time position at the OPP in order to return to work at EMDC. He was also made aware that in accordance with the Policy, he would have to be rehired as an FXT CO. On May 14, 2021 the grievor accepted the terms of his re-hire as a FXT CO, and despite having been away for more than six months, he was rehired as a CO2, and at the wage rate of $34.26 per hour, the same pay rate that he had been receiving when he had last worked in the Correctional Service in June 2020.

20According to the grievor, he had signed the FXT contract under protest as he wanted to return to his CO job, and had already filed the current grievance before he was forced to “resign” from his Constable position with the OPP. He maintains he had sought and been granted an unpaid leave of absence in order to go to the OPP. As such, he had the right to return to his original regular service job, and to be returned without a break in service.

21The Employer makes a number of arguments against this grievance. Firstly, it notes that at the time that the grievor asked for a leave of absence on June 8, 2020, he had already accepted a full time permanent position with the OPP, and had started his job that day. As such, it argues that pursuant to Ontario Regulation 381/07, and the MBC Compensation Directive (at s. 47(1)) a public servant cannot hold two full time positions in the OPS, so the EMDC administration had erred in giving him a leave of absence without pay to go to the OPP as it was not legally able to do so. It does not dispute that the grievor was not told any of this at the time he was granted the leave of absence, or the extension of that leave of absence. Nonetheless, the Employer maintains that when the grievor accepted a full time position with the OPP, he effectively gave up his full time CO job with Correctional Services, and no longer had any rights or entitlements under the OPSEU collective agreement.

22The relevant provisions of O.Reg. 381/07 are as follows:

8. A public servant shall not become employed by or engage in a business or undertaking outside his or her employment by the Crown in any of the following circumstances:

9. If the employment would constitute full-time employment for another person. However, this paragraph does not apply with respect to a public servant who is employed part-time by the Crown. This paragraph also does not apply with respect to a public servant who is on an authorized leave of absence from his or her position, but only if the employment is not contrary to or inconsistent with the terms of the leave of absence.

(Emphasis added)

23The provision of the Regulation must be read in conjunction with the government directives. Pursuant to the Ontario government’s MBC Compensation Directive, in respect of “Discretionary Leave”, at section 47(1) a leave of absence is defined as follows:

47.(1) In this section,

“leave of absence” means a leave of absence for the purpose of undertaking employment under the auspices of the Government of Canada or other public agency or in the private sector.

24Thus, the Employer argues that while the EMDC management granted the grievor a leave of absence from his full-time classified CO2 position in order to take another full-time OPP Constable position, both positions were in the OPS. The leave of absence, and subsequent extension of that leave of absence, were therefore granted in error as they were in violation of the MBC Compensation Directive, as the grievor was not going to a federal government job or one in the private sector. He could therefore not be granted a leave of absence to take another full time job in the OPS as no OPS full time employee can hold two full time positions at the same time.

25The second argument the Employer makes is that while an employee of the OPP, the grievor was no longer a member of OPSEU. In his OPPA induction package, which the grievor had signed on June 8, 2020, he was aware that he was then represented by that union. As such, on March 31, 2021, when Mr. Peltier-St. Louis filed this grievance, he had no right to do so as he was not a member of OPSEU.

26Having considered the submissions of the parties, I find that the grievor had no legal right to file this grievance as at the time he was not represented by OPSEU, and was not governed by the terms of the OPSEU Collective Agreement.

27However, and in any event, I would find that based on the Regulation, the Compensation Directive, and the evidence in this case, that the EMDC management acted erroneously when it granted the grievor a leave of absence as to do so was a breach of the Regulation and the Compensation Directive. At that juncture the grievor should have been advised that he had to resign from his EMDC position in order to take the OPP job. As that did not happen at the point it should have, upon Mr. Peltier-St. Louis’ request to return to work at EMDC, the grievor was properly required to resign from his OPP job, which caused a break in his OPS service. Upon a break in service, continuous service is deemed to have terminated, and the grievor therefore had to begin as a FXT CO and a new employee once he returned to the OPSEU bargaining unit, and was governed by Article 18.4 of the Collective Agreement.

28While this is an unfortunate outcome, and one for which the grievor was not initially responsible to the extent that he had no knowledge of the OPS policy and Compensation Directive, I am bound to apply the Regulation and Compensation Directive, so for all of the reasons outlined above, this grievance is dismissed.