GSB# 2023-01953

UNION# 2023-0234-0210

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Mariano)

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 Labour Strategy & Employee Transition Manager

HEARING

September 12 and December 12, 2024

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.

7Romeo Mariano is a Fixed Term ("FXT") Correctional Officer ("CO") at the Maplehurst Correctional Complex. On January 19, 2023 Mr. Mariano filed a grievance claiming a breach of Articles 2, 3 and 18 of the Collective Agreement. He claims that he resigned from another position under duress in order to take a position in the Ministry of the Solicitor General and that as such, his unbroken service should be maintained. By way of remedy the grievor seeks to have his resignation rescinded, and his total hours rectified to reflect his previous service.

8The grievor had been employed as a full time regular service Laundry Worker at the Toronto South Detention Centre. He then accepted a Fixed Term position as a CO at Maplehurst. After Mr. Mariano was advised by the Employer that he could not hold both his regular service Laundry Worker position as well as a FXT CO position, he asserts that he was forced under duress to resign from his regular service position.

9By an email dated January 12, 2023, at which point he was already working as a FXT CO, the grievor advised his previous manager that he was tendering his resignation from his job as a Laundry Worker at the TSDC effective midnight December 11, 2022, in order to continue working at Maplehurst.

10The issue of regular service employees covered by the OPSEU Collective Agreement resigning from their position in one Ministry or correctional institution and then accepting a Fixed Term contract with another institution or Ministry has arisen frequently in the past as it relates to the carriage of time or service from one Ministry or institution to another. The Collective Agreement addresses this issue definitively. Article 18.4 states that "Continuous service shall be deemed to have terminated if:

(a) an employee resigns or retires;...".

11There is no question on the facts before me that Mr. Mariano resigned from his regular position at the TSDC because he chose to work as a FXT CO at Maplehurst. As such, that resulted in the termination of his service pursuant to Article 18.4. There is no question about duress in this situation as it was the grievor's choice whether he wanted to maintain his regular job as a Laundry Worker at the TSDC or keep working as a FXT CO at Maplehurst.

12This issue has been determined by the Board on a number of occasions including in the following decisions: OPSEU (Wiles) v. Ontario (MCSCS), GSB#2016-0300, 2016-0695, 2016-0696, December 6, 2016 (Briggs); OPSEU (Sutherland) v. Ontario (MCSCS), GSB#2016-0461, September 11, 2017 (Briggs); and, OPSEU (Bourgeois) v. Ontario (MCSCS), GSB#2017-0503, November 6, 2017 (Briggs); Ontario Public Service Employees Union (Brar) v. Ontario (Solicitor General), 2021 CanLII 119109 (ON GSB)(Misra). Nothing on the facts before me in this case makes the grievor's situation much different from those cases. The resignation effective December 11, 2022 caused a break in his service.

13Having considered the facts and submissions of the parties, and for the reasons outlined above, this grievance is denied.