GSB# 2022-4817

UNION# 2022-0135-0018

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Karpenko)

Union

• and -

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

Employer

BEFORE

Ken Petryshen

Arbitrator

FOR THE UNION

Katherine Ferreira Koskie Minsky LLP Counsel

FOR THE EMPLOYER

Katie Ayers Treasury Board Secretariat Legal Services Branch Counsel

HEARING

April 5, 2024

Decision

1In her grievance dated June 2, 2022, Ms. M. Karpenko claims that the Employer contravened the Collective Agreement by not converting her to the Regular Service. At the time, Ms. Karpenko was in a fixed-term Correctional Officer position at the South West Detention Centre (“SWDC”). She is still in that position today. The parties agreed to have this grievance addressed under the expeditious and informal process set out in article 22.16 of the Collective Agreement. They also agreed to only address the merits of the grievance at this stage of the proceeding.

2Ms. Karpenko was continuously in the A4 Assist position in the Intake Unit from November 2, 2020, until May 13, 2022, when she was assigned to a General Duty Officer (“GDO”) position. Since she was performing the work of the A4 assist position for more than eighteen months and since she maintains that this work continued to be performed at the SWDC after she was assigned to the GDO position, the Union submitted that the Employer’s obligation under article 31.15.1.1 had been triggered. This article reads as follows:

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 Central 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.

3The Employer relied on a number of submissions in support of its position that the grievance should be dismissed. Employer counsel argued that the A4 Assist work did not continue on a full-time basis thereby illustrating that there was not a continuing need for that precise work to be performed. Counsel also submitted that a relevant distinction should be made between a posting and a position. Counsel further submitted that the parties had determined some time ago in the Corrections context that it was appropriate to have the requirements for conversions or roll-overs to the Regular Service determined by local practices or agreements.

4It may very well be that conversions and roll-overs at the SWDC are determined by a local practice. However, I am of the view that this grievance should be determined based the circumstances relied on by Ms. Karpenko to establish a breach of article 31A.15.1.1.

5Having considered the circumstances and the submissions of counsel, including the decisions they referred to me, I am satisfied that a violation of article 31A.15.1.1 has not been established. I have not been convinced that there was continuing need for the work of the A4 Assist posted position to be performed on a full-time basis. Therefore, I cannot find that the Employer was obliged in these circumstances to establish a position in the Regular Service for Ms. Karpenko. Accordingly, Ms. Karpenko’s grievance dated June 2, 2022, is hereby dismissed.