GSB# 2022-11798

UNION# 2022-0234-4964

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Brar)

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 Treasury Board Secretariat Ministry of the Solicitor General Manager, Labour Strategy & Employee Transition

HEARING

December 8, 2023 and February 28, 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.

7Kamalveer Brar is a Correctional Officer ("CO") at the Maplehurst Correctional Complex ("MHCC"). On December 30, 2022 Mr. Brar filed a grievance claiming a breach of various articles of the collective agreement. The grievor claims that the Employer has failed to properly determine his accumulated hours following his return to work as a CO on October 7, 2020 as it has not recognized his previous service as a fixed term employee at the Ontario Correctional Institute ("OCI"). He seeks to be made whole and for the Employer to acknowledge his hours worked while he was at OCI for the purposes of rollover.

8This is Mr. Brar's second grievance about the same issue. In an earlier grievance, filed on March 17, 2021, the grievor made the same claim, which was addressed in a decision of this Board dated October 6, 2021.

9In Ontario Public Service Employees Union (Brar) v Ontario (Solicitor General), 2021 CanLII 119109 (ON GSB), I fully addressed the facts before me, the relevant collective agreement provision, previous jurisprudence on similar facts, and dismissed the grievance. The facts in that decision were that Mr. Brar had resigned from his employment as a fixed-term CO at the OCI on March 4, 2019, and over 19 months later on October 7, 2020 he took a job as a fixed-term CO again, this time at MHCC. Mr. Brar felt he should have been credited with his previous service rather than having to begin anew accumulating hours. For all the reasons outlined in the 2021 decision, I found that Mr. Brar, having resigned from the Ontario Public Service ("OPS") in March 2019, could not be credited with his earlier accumulated service when he rejoined the OPS in October 2020.

10At the hearing regarding the grievor's second grievance on the same issue, the Employer made a motion for dismissal of the current grievance on the basis that the Grievance Settlement Board has already addressed the issue and that the matter is now res judicata.

11Having heard the submissions of the parties, it is clear that the grievor is seeking to re-litigate his earlier grievance as he was not satisfied with the result. It is a waste of legal and administrative resources for both the parties and the Board to have to consider in a new grievance a matter that is between the same parties, relating to the same set of facts, and which has already been decided through the adjudicative process. As there has to be finality once a grievance has been addressed on its merits, I uphold the Employer's motion, find that this matter is res judicata, and hereby dismiss this grievance as the issue is one that has already been decided with respect to this individual.