GSB# 2023-03357

UNION# 2023-0290-0043

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Fatoba)

Union

• and -

The Crown in Right of Ontario (Ministry of Children, Community and Social Services)

Employer

BEFORE

Gail Misra

Arbitrator

FOR THE UNION

Gregg Gray Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Karen Martin Treasury Board Secretariat Employee Relations Branch Employee Relations Advisor

HEARING

September 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.

7Jide Fatoba is a Fixed Term ("FXT") Youth Services Officer ("YSO") who began working at the Roy McMurtry Youth Centre in March 2023. On October 24, 2023 Mr. Fatoba filed a grievance claiming breaches of Articles 2, 18, and 24B.1 of the collective agreement. By way of remedy, he seeks to have the period of his continuous service carried over from the time that he worked at the Ministry of the Attorney General ("MAG") so that it is applied to his current employment at the Ministry of Children, Community and Social Services ("MCCSS").

8In particular, the grievor claims that the Employer has improperly calculated his hours worked as it has not given him credit for the years that he worked at MAG from May 9, 2016 until he joined MCCSS.

9The grievor began working at MAG as an On-Call Court Reporter on May 9, 2016. At some point he became a full time regular employee at MAG as a Court Client Representative. In 2022 Mr. Fatoba applied to be considered for Youth Services Officer ("YSO") Basic Training at MCCSS. On November 18, 2022 he was advised by the MCCSS that he was being placed on the deferral list for YSO Basic Training, and had to wait for the next scheduled class.

10On December 29, 2022 Mr. Fatoba filed a Request for Leave of Absence seeking authorization from MAG to take a 20 day unpaid leave of absence from February 13 to March 9, 2023 for "Professional Development". That was when the grievor was going to be taking the YSO Basic Training course at the MCCSS.

11By an email dated February 2, 2023, sent at 3:43 p.m., Ms. Natasha Gray, management at MAG, confirmed in writing to the grievor that, further to their previous conversation, Mr. Fatoba could only be granted a two week unpaid leave of absence due to operational needs. It appears that the grievor immediately thereafter provided Ms. Gray with a letter of resignation from his regular position as Court Client Representative and gave two weeks' notice. Ms. Gray responded on February 2^nd at 3:49 p.m. acknowledging receipt of Mr. Fatoba's resignation letter and wished him well in his new position.

12It appears that by March 10, 2023 Mr. Fatoba had successfully completed the YSO Basic Training and was hired into a Fixed Term position as a YSO with the MCCSS. In October 2023, when the grievor saw a posting of his total hours worked, he realized that the time that he had worked at MAG was not included, and filed the current grievance.

13The issue of regular service employees covered by the OPSEU Collective Agreement resigning from their position in one Ministry and then accepting a Fixed Term contract with MCCSS or the Ministry of the Solicitor General has arisen frequently in the past as it relates to the carriage of time or service from one Ministry 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;...".

14There is no question on the facts before me that Mr. Fatoba resigned from his position with MAG before he began as a FXT YSO with MCCSS. As such, that resulted in the termination of his service pursuant to Article. 18.4.

15This 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 in 2023 caused a break in his service, so any time that the grievor worked at MAG prior to his resignation cannot be counted as part of his service.

16Having considered the facts and submissions of the parties, and for the reasons outlined above, this grievance is denied.