GSB#2022-10137

UNION#2022-0228-0049

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Yousufi)

Union

• and -

The Crown in Right of Ontario (Ministry of the Attorney General)

Employer

BEFORE

Kelly Waddingham

Arbitrator

FOR THE UNION

James Sommerville Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Jackson Donszelmann-Lund Treasury Board Secretariat Legal Services Branch Counsel

HEARING

June 13, 2023

Decision

1This is a grievance in which OPSEU Local 228 ("the Union" or "OPSEU") alleges that the Ministry of the Attorney General ("the Employer") violated the collective agreement by failing to convert the grievor from an unclassified fixed-term employee to a classified permanent employee after she had completed 18 months of continuous work in the position of Assistant Trial Coordinator at the Brampton Court House.

2This decision deals with the Employer's preliminary motion that the grievance be dismissed on the grounds that the facts fail to disclose a prima facie breach of the Article 31A.15 of the Collective Agreement.

3Having carefully considered the submissions of the parties, reviewed the Agreed Statement of Fact ("ASF") and considered the jurisprudence of the Grievance Settlement Board, I find that the facts, even if accepted as true and provable, do not establish a prima facie case for the Employer to meet. These are my reasons:

The Relevant Provisions of the Collective Agreement

31A.15 CONVERSION OF FIXED-TERM POSITIONS TO POSITIONS IN THE REGULAR SERVICE

31A.15.1.1 Where the same work has been performed by an employee in the Fixed- Term Service for a period of at least eighteen (18) consecutive months, except for situations where the fixed-term employee is replacing a regular employee on a leave of absence authorized by the Employer or as provided for under the Unified Collective Agreement, and where the ministry has determined that there is a continuing need for that work to be performed on a full-time basis, the ministry shall establish a position within the Regular Service to perform that work.

31A.15.1.2 Where the ministry has determined that it will convert a position in accordance with Article 31A.15.1.1, the status of the incumbent in the position will be converted from fixed-term to regular, provided that the incumbent has been in the position in question for at least eighteen (18) months and provided the position has been cleared through surplus.

AGREED STATEMENT OF FACTS

Preliminary Issues to be Determined:

a) Did the Grievor meet the eighteen (18) month eligibility requirement for conversion into a permanent position in accordance Article 31A.15.1 of the Collective Agreement?

i. The Employer provided notice of termination on September 23, 2022, in accordance with the Employment Standards Act, 2000 and O.Reg 288/01. Was the Grievor still eligible for conversion under Article 31A.15.1 of the Collective Agreement?

Overview:

1. The Parties are bound by the OPSEU Unified Collective Agreement.

2. The Grievor in this case served as an Assistant Trial Coordinator from April 19th, 2021, to October 28th, 2022, in the Superior Court of Justice located in the Brampton Courthouse, Peel Region.

3. On October 19th, 2022, the Grievor filed a grievance alleging that the Employer violated Article 8.6.1 of the Collective Agreement by not assigning the Grievor to a permanent full-time position as an Assistant Trial Coordinator.

4. More specifically, the grievance form alleged that the Grievor had been in an incumbent position of Assistant Trial Coordinator for at least 18 months, and that the Employer should have assigned the Grievor to a permanent position as Assistant Trial Coordinator in accordance with the Collective Agreement. A copy of the grievance form is attached at Tab 1.

5. During the FRS meeting scheduled on November 10th, 2022, the Grievor amended the grievance form to allege a violation of Article 31A.15, titled, FXT Conversion, which replaced the reference to Article 8.6.3.

6. The Employer and the Union agree that the Article 31A.15 is the relevant provision of the Collective Agreement for the purposes of this grievance.

7. The Employer denied the grievance via email on November 17th, 2022. In denying the grievance it is the Employer's position that the Grievor was not eligible for conversion because for a period of time during her assignment as an Assistant Trial Coordinator she had been backfilling for a regular employee on an authorized leave of absence. A copy of the grievance denial letter is attached at Tab 2. Formally on November 22, 2022, the Employer sent the Grievor the FRS denial letter. A copy of this letter is attached at Tab 3.

Facts leading up to the Grievance – Employment History

8. The Grievor was hired on a Fixed-Term ("FXT") contract as Assistant Trial Coordinator (classification 09OAD) on April 19th, 2021. As such, 18 calendar months from the date the Grievor was hired as a FXT would be October 19th, 2022. A copy of this FXT contract is attached at Tab 4. The duration of this contract was until July 16th, 2021.

9. On July 8th, 2021, the Grievor was notified that her FXT contract was extended from July 19, 2021 until August 13th, 2021. A copy of the extension letter is attached at Tab 5.

10. From August 16th, 2021, until in or around December 3rd, 2021, the Grievor was extended in her role specifically for the purpose of backfilling and acting as a replacement for a regular employee, full-time Assistant Trial Coordinator, Jennifer Marks, position #027578-00046002. Ms. Marks was on an authorized approved leave of absence from the Employer between August 16th, 2021, until November 28th, 2021.

11. The Employer's record of the Grievor backfilling for this position is evidenced through the Grievor's WIN Employee Action Request ("WEAR") Form located at Tab 6.

12. In or around the time the Grievor was backfilling for Ms. Marks, the Grievor was provided with sixteen (16) weeks working notice of termination in accordance with Section 58(1) of the Employment Standards Act, and subsection 3(1) O. Reg288/01. A copy of the Grievor's 16-week termination letter is attached at Tab 7.

13. In or around November 29th, 2021, the Grievor competed for and was the successful candidate for a subsequent fixed-term Assistant Trial Coordinator Position. The Grievor's FXT contract for the November 29th, 2021 position is attached at Tab 8. The Grievor's contract was extended past April 29th, 2022 until October 31st, 2022. A copy of the Grievor's WEAR form supporting the extension is attached at Tab 9.

14. On September 23rd, 2022, the Grievor was provided 16-weeks working notice of termination that her employment as a fixed-term Assistant Trial Coordinator would terminate on January 20th, 2023. A copy of that termination letter is attached at Tab 10.

15. Ultimately, on October 28th, 2022, the Grievor resigned from the Assistant Trial Coordinator Position – and accepted a job at a different court location in the Ministry of the Attorney General as a Judicial Secretary. Since October 28th, 2022, the Grievor has not been in the role of Assistant Trial Coordinator.

Reserving Rights

16. In the event that the Arbitrator does not dismiss the grievance on a preliminary basis, the Parties' reserve the right to provide full submissions and evidence at a later date with respect to whether or not there has been a violation of Article 31A.15 of the Collective Agreement.

THE EMPLOYER'S POSITION

4There is no dispute between the parties regarding the test the Board is to apply in considering a prima facie motion. The Employer referred to Ontario Public Service Employees Union (Martin et al) v Ontario (Community and Social Services), 2015 CanLII 60449 (ON GSB) (Anderson) for the test it must meet to succeed on a prima facie motion:

In order to succeed, the moving party, in this case the Ministry, must establish that the "facts asserted in support of a grievance, if accepted as true, are not capable of establishing the elements necessary to substantiate the violation alleged": Couture, 2011 CanLII 100922 (ON GSB), (Dissanayake). Arguments or conclusions do not constitute allegations of fact. Accordingly, they need not be accepted as true for the purposes of a no prima facie case motion.

5The grievance asserts that the Employer has violated Article 31A.15 of the Collective Agreement. The Employer submits that Article 31A.15. has two condition precedents for a fixed term unclassified employee to be converted to a classified employee. First, an employee must perform the same work for a minimum of 18 consecutive months and second, there must be a continuing need for this work.

6The Employer asserts that the grievor did not work 18 months as an Assistant Trial Coordinator. The Employer relies on the working notice of termination provided to the grievor on the September 23, 2022 in accordance with section 58(1) of the Employment Standards Act, and subsection 3(1) O.Reg 288/01 ("ESA") advising that January 20, 2023 would be her final day of work. The Employer argues that the September 23, 2022 statutory working notice of termination of employment does not extend a fixed term contract to January 20, 2023 for the purposes of Article 31A.15.

7In the alternative, the Employer submits Article 31A.15.1.1. provides that a contract resulting from a leave of absence is not eligible to be considered as part of the 18 months of work. The grievor's contract from August 16, 2021, to December 3, 2021, arose as the result of a replacement for a full-time Assistant Trial Coordinator who was on an authorized leave of absence and therefore is not considered to be part of the grievor's 18 months of service.

8In the further alternative the Employer submits it determined that there was no continuing need for the work to be performed on a full-time basis, as evidenced by the working termination notice issued to the grievor. There is no allegation of bad faith and therefore the Employer continues to have the discretion to end a fixed term contract.

9Finally the grievor is not eligible to be converted from an unclassified to a classified employee because she had not completed 18 consecutive months of service when she resigned on October 28, 2022, to accept a position as a Judicial Secretary.

10The Employer referred to the following cases: Ontario Public Service Employees Union (Martin et al) & Ontario (Community and Social Services), 2015 CanLII 60449 (ON GSB); Ontario Public Service Employees Union (Conversion Grievances) & Ontario (Ministry of the Attorney General), GSB#461/96 [et al], (Briggs); Ontario Public Service Employees Union & Ontario (Ministry of the Attorney General) Re, 2003 CarswellOnt 9819 (Briggs); Ontario Public Service Employees Union (Paolo/Nahm) & Ontario (Ministry of Government Services) GSB#2011-3339, GSB#2011-3623 (Briggs).

OPSEU'S POSITION

11OPSEU submits that the calculation of 18 months of continuous work must be considered as part of a full hearing on the merits of the grievance.

12OPSEU submits that the plain and ordinary meaning of Article 31A.15 requires that two preconditions be met in order for a fixed term unclassified position to be converted to a full-time classified position. First, the same work must be performed for a period of 18 months. OPSEU submits that the grievor has fulfilled this first condition, she worked as an Assistant Trial Coordinator for 18 months short by a few days. The grievor resigned from the Assistant Trial Coordinator's position to accept the position of Judicial Secretary only after she received working notice of termination from the Employer.

13With respect to the grievor's work between August 16, 2021 and December 3, 2021, only a full hearing can establish if this fixed term contract was a mere paper replacement or a true backfill.

14Turning to the continuing need for the work, OPSEU submits that the Brampton courthouse is a large facility and there is an ongoing need for an Assistant Trial Co-ordinator's position. It is important that the Employer not be allowed to use a statutory working notice of termination as a loophole to avoid a review of its continuing need for the work of an employee. The grievor's situation is very different from cases referenced by the Employer in which mass layoffs had been issued. Furthermore, OPSEU argues that a statutory working notice of termination does not mean that there is not a continuing need for the work of an Assistant Trial Coordinator.

15OPSEU submits that the Employer's cases can be distinguished. The grievances in (Conversion Grievances) (supra) dealt with the application of Article 31A..15 following the period of a strike, which is very different from the present grievance. In (Paolo/Nahm) (supra) during their tenure, the grievors had worked in different classifications and had not worked the requisite 18 months, whereas in the present grievance, the grievor worked in the same position for 18 months.

16OPSEU referred to the following cases: OPSEU (Mistry) and The Crown in Right of Ontario (Ontario Human Rights Commission), GSB #0569/96 (Verity); Ontario Public Service Employees Union, (Jacobs et al) and Ontario (Ministry of the Solicitor General),2020 CanLII 97349 (ON GSB); Ontario Public Service Employees Union (Sinnathurai) Ontario (Ministry of the Attorney General) GSB #749/96 (Briggs); Ontario Public Service Employees Union (Sopha) Ontario (Ministry of the Attorney General), GSB #748/96 (Briggs); Ontario Public Service Employees Union (McPhail et al.) and Ontario (Ministry of the Attorney General),(supra).

REPLY

17In reply the Employer submit the cases relied on by OPSEU may be distinguished from the present situation. In Jacobs (supra) and Sopha (supra) there is no dispute between the parties that the grievors had worked beyond the requisite time threshold. Whereas in the present case the Employer does not agree that the grievor has worked the 18 months required under the collective agreement.

18The Employer further submits that there is no need for a hearing on the question of whether the grievor was backfilling between August 19, 2021, to December 3, 2021. The parties agreed in the ASF that the fixed-term contract was for the purposes of replacing/backfilling for an employee on an approved leave.

ANALYSIS & DECISION

19For ease of reference Article 31A.15.1 is reproduced:

31A.15.1.1 Where the same work has been performed by an employee in the Fixed- Term Service for a period of at least eighteen (18) consecutive months, except for situations where the fixed-term employee is replacing a regular employee on a leave of absence authorized by the Employer or as provided for under the Unified Collective Agreement, and where the ministry has determined that there is a continuing need for that work to be performed on a full-time basis, the ministry shall establish a position within the Regular Service to perform that work.

20Article 31A.15.1.1 sets out two requirements that must be met for the grievor's status to be converted from an unclassified fixed-term contract employee to a classified employee. Firstly, the grievor must have performed the same work for at least 18 consecutive months. Secondly, there must be a continuing need for the work to be performed on a full-time basis as determined by the ministry.

21The grievor failed to perform the same work for 18 consecutive months. The ASF sets out that the grievor worked under a series of five fixed-term contracts as an Assistant Trial Coordinator between April 19, 2021, until her resignation on October 28, 2022. The fixed-term contracts are as follows:

1. April 19, 2021, to July 16, 2021;
2. July 16, 2021, to August 16, 2021;
3. August 19, 2021, to December 3, 2021;
4. November 29, 2021, to April 29, 2022;
5. April 29, 2022, to October 31, 2022.

22According to the ASF, the grievor's third fixed-term contract (August 19, 2021, to December 3, 2021) was intended to backfill and replace a regular full-time Assistant Trial Coordinator on an authorized approved leave of absence. Article 31.A.15.1.1 provides that the calculation of the 18 months of employment does not include a fixed-term contract that arises as a result of a regular employee being on an authorized leave of absence. Therefore, although the grievor continued to work in the position of an Assistant Trial Coordinator, the third fixed-term contract (August 19, 2021, to December 3, 2021) is not included in the calculation of the 18 months of employment (Conversion Grievance) supra).

23The grievor worked a total of 4 months under the first two fixed-term contracts as an Assistant Trial Coordinator (April 19, 2021, to July 16, 2021, and July 16, 2021, to August 16, 2021). The grievor's fourth and fifth fixed-term contracts (November 29, 2021, to April 29, 2022, and April 29, 2022, to October 31, 2022) total 12 months. As of October 28, 2022, when the grievor resigned to accept a new position as a Judicial Secretary, she had worked 16 months as an Assistant Trial Coordinator on a series of fixed-term contracts.

24There is no prima facie case because the grievor worked 16 months performing the same work and not 18 consecutive months, which is the first requirement under Article 31A.15 for a conversion to the classified service. The grievor's motivation for resigning from the position of Assistant Trial Coordinator to accept another position is irrelevant. Furthermore, given that the grievor's third fixed term contract was to replace a regular full time employee, the grievor was not "short a few days" of 18 months when she resigned. Rather she had worked only 16 months of the required 18 months. The grievor's resignation on October 28, 2022, renders it unnecessary to determine if the statutory working notice of termination extended the fifth fixed-term contract to January 20, 2023, for the purposes of Article 31A.15.

25Having found that the grievor did not meet the first requirement under Article 31A.15 of working 18 consecutive months, it is not necessary to address the second requirement that there be a continuing need for the work.

26Accordingly, the Employer's prima facie motion is upheld and the grievance is dismissed.