GSB# 2023-01275

UNION# 2023-0135-0018

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Spence)

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.

7Christopher Spence, a Correctional Officer ("CO") at the South West Detention Centre ("SWDC"), filed a grievance on June 26, 2023 claiming a breach of various articles of the collective agreement. The grievor claims that the Employer has made an error in the calculation of his Continuous Service Date ("CSD"), which he believes should be November 6, 1998.

8Mr. Spence asserts that he worked in a full time OPSEU-represented position in security at the Ontario Lottery and Gaming Corporation ("OLGC") from November 6, 1998 until December 7, 2012, when his job ended due to a site closure.

9On January 7, 2013 the grievor began working at the Ministry of the Attorney General in a fixed term position as a Court Services Officer. On March 10, 2014, Mr. Spence began working at the Ministry of Community Safety and Correctional Services as a fixed term Correctional Officer, and has since become a classified CO.

10Mr. Spence complains that in calculating his CSD the Employer has only counted his service since he began with the Ministry of the Attorney General, and has not included his service while he was at the OLGC. Since the OP Trust, which is the OPSEU Pension Plan administrator, has advised the grievor that his CSD for pension purposes is November 6, 1998, he believes that his CSD with the Employer should be the same date.

11The Employer maintains that the grievor's service has been counted from the time he began to work at the Ministry of the Attorney General. However, since the OLGC is a Crown agency which is not recognized by the provincial government as part of the Ontario Public Service ("OPS"), the grievor's service from that employer cannot be recognized.

12There is no dispute between the parties that only Crown agencies that are directly operated by the provincial government are recognized as part of the OPS.

13Ontario Public Service Employees Union (Seddon) v Ontario (Solicitor General), 2019 CanLII 86405 (ON GSB), is a decision regarding facts somewhat similar to this case in that the grievor there wanted his service as a Special Constable employed by the Ontario Legislature to be counted towards his CSD. I found in that case that employment as a Special Constable at the Legislative Assembly of Ontario does not constitute employment in the OPS and noted as follows at para. 10 of the decision:

10Based on the evidence before me, employment as a Special Constable at the Legislative Assembly of Ontario does not constitute employment in the OPS. Furthermore, no staff of the Legislative Assembly are considered part of the OPS, and the only way that one may qualify for OPS-related entitlements, such as seniority carry-over, would be if there was a Reciprocal Agreement that addressed seniority carryover into the OPS from the Legislative Assembly, or vice versa. There is no such Reciprocal Agreement. As such, the grievor's tenure at the Legislative Assembly is simply not deemed to be work within the OPS, and he did not rejoin the OPS until February 4, 2013. That is the CSD that has been assigned to Mr. Seddon.

14Similarly, in Ontario Public Service Employees Union (Dutrisac) v Ontario (Solicitor General), 2021 CanLII 119028 (ON GSB), I addressed a grievor's claim that her previous employment at the Hayes Youth Centre and for the City of Ottawa should count towards the calculation of her CSD. In that case I found that, for the purposes of Appendix COR24, since neither the Hayes Youth Centre nor the City of Ottawa were part of the OPS, any time worked for those employers could not be considered as hours she had worked within the OPS (para. 8).

15What the OPSEU Pension Plan considers to be the grievor's continuous service date may well have considerable meaning to Mr. Spence for the purposes of calculating his eligibility for full pension, but for the purposes of a CSD calculation within the OPS it is immaterial.

16Having heard the submissions of the parties and considered the evidence before me, I find that this case is no different from the two decisions cited above. Mr. Spence was not working in the OPS when he was employed at the OLGC and as such, his service with that employer cannot be counted towards his CSD. The Employer has already included the grievor's tenure at the Ministry of the Attorney General in the calculation of Mr. Spence's CSD, and the grievor concedes that is the case. Hence, for the reasons outlined above, I hereby dismiss this grievance.