GSB# 2013-1446; 2013-1574; 2013-1696
UNION# 2013-0999-0049; 2013-0999-0063 ;2013-0999-0069
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Union – Barber et al)
Union
- and -
The Crown in Right of Ontario (Treasury Board Secretariat)
Employer
BEFORE
Reva Devins
Arbitrator
FOR THE UNION
Ed Holmes Ryder Wright Blair & Holmes LLP Counsel
FOR THE EMPLOYER
George Parris Treasury Board Secretariat Legal Services Branch Counsel
HEARING
April 29 and May 23, 2024
Decision
1These grievances relate to the operation of the Transition Exit Initiative, (“TEI”), under Appendix 46 of the Collective Agreement. The parties agreed that the current matters should be determined in accordance with Article 22.16 of the Collective Agreement with brief reasons for decision.
2The Union submitted a Book of Documents with the grievances, Will Say Statements, where provided, and accompanying documents that set out the circumstances that relate to each grievor. Generally, the grievances were filed by grievors1 who applied for but were not approved to receive enhanced benefits under the TEI before they retired from the Ontario Public Service (“OPS”).
Appendix 46
3The relevant provisions of Appendix 46 are set out below:
All regular, regular part-time and flexible part-time employees will be eligible to apply to a Transition Exit Initiative (TEI).
An employee may request in writing voluntary exit from employment with the OPS under the TEI, which request may be approved by the Employer in its sole discretion. The Employee’s request will be submitted to the Corporate Employer. The Employer’s approval shall be based on the following considerations:
i) At the time that an employee TEI request is being considered, the Employer has plans to reduce positions in the OPSEU bargaining unit;
and
ii) The Employer has determined in its discretion that the employee’s exit from employment supports the transformation of the Ontario Public Service.
iii) The Employer will consider whether employees are on the TEI lists when making surplus decisions.
iv) If there is more than one employee eligible to exit under the TEI within the same workplace, the determination of who will exit under the TEI shall be based on seniority.
Analysis
4I have issued a series of decisions on the scope of the Employer’s discretion to allow or deny a request and concluded that:
i) Appendix 46 confers a broad discretion on the Employer to determine whether granting a request for TEI would support its vision of transformation of the OPS: Koeslag et al., issued January 12, 2016.
ii) Despite this broad discretion, the ordinary principles for the proper exercise of discretion apply. Consequently, when the Employer considers requests for TEI, the decision cannot be based on irrelevant considerations or otherwise violate the principles set out in Re Kuyntjes, GSB #513/84 (Verity); Koeslag, supra.
iii) While recognising that there may be several approaches that the Employer could adopt with respect to transformation of the public service, it remains in the Employer’s sole discretion to decide whether an ‘employee’s exit from employment supports transformation’ and, in so doing, to determine which factors are relevant to exercising their discretion: Vadera, issued June 28, 2018.
iv) The Employer can offer the TEI as a targeted inducement to encourage employees to voluntarily retire or resign, allowing them to eliminate a position without the need to surplus other employees who wish to remain. However, the Employer is not required to approve all requests for TEI, even where there is evidence of change or transition. The Employer retains the discretion to determine when and how the TEI will be offered: Kimmel, issued November 29, 2018 and Anich, August 9, 2019.
v) An identical outcome for many grievors does not automatically mean that the Employer improperly exercised their discretion by applying a blanket rule. Where the common denominator among grievors was a rational consideration that was reasonably related to achieving transformation, the discretion was properly exercised: Klonowski, issued November 7, 2019.
vi) Absent evidence of bad faith or discrimination, the approval of an earlier request for TEI, on its own, is not sufficient to establish an improper exercise of discretion: Koroscil, June 18, 2020. Similarly, the approval of subsequent requests does not warrant an automatic conclusion that the decision to deny an earlier request was arbitrary or unreasonable. Inevitably, timing matters. A different outcome may result from the timing of an employee’s request for TEI: Heath, March 3, 2021.
vii) A TEI application does not survive the departure of an employee from the OPS. Appendix 46 is not available to employees after they retire, or their employment relationship is severed. TEI provides enhanced benefits to an employee when the Employer determines that their “exit from employment supports the transformation of the OPS”. When an employee is no longer an active employee, by definition, they cannot exit again and Appendix 46 has no application: Thompson, issued May 28, 2021.
viii) The memo issued on December 12, 2018, by the Secretary of Cabinet announcing further measures to address the fiscal challenges that the government was facing at the time, did not change the applicability of the principles established in earlier cases: Union (motion for direction), issued April 18, 2024.
5I appreciate that the memo issued by the Secretary of Cabinet in 2018 renewed expectations that TEI would be granted more liberally, and that the grievors genuinely believe their applications could and should have been approved. TEI is clearly a significant benefit for retiring employees. Regrettably, as I have already determined, TEI is not a general retirement allowance provided to everyone who requests it.
6The parties agreed that most of the arguments raised in these grievances have been addressed in earlier decisions. However, there were some new or factually distinct issues.
7Grievors McCann and Belifore claimed that TEI was granted to more junior employees who worked in the same office and occupied the same position. The Employer provided the CSD dates for the Grievors and for those employed in the same position in their office who were granted TEI. In both cases, I am satisfied that the Grievors were junior to the employees who were granted TEI.
8Several other grievors, who were employed as Correctional Officers, argued that junior employees were granted TEI when the Bailiff position was eliminated. The Employer denied the allegation and relied on a jointly agreed to Memorandum of Agreement (“MOA’”) that managed the elimination of the Bailiff position.
9Under the terms of the MOA, Bailiffs were offered two choices: they could elect TEI and leave the OPS, or they could become a Correctional Officer at an institution of their choice. The Employer committed to creating 30 new Correctional Officer positions to facilitate the move.
10The Union acknowledged that Bailiffs and Correctional Officers did not share the same classification, and that the MOA provided for movement to a new position or classification for Bailiffs who chose to remain in the OPS.
11Accordingly, when the Bailiffs received TEI, they were not yet Correctional Officers. If they elected to become a Correctional Officer, they moved into newly created positions. I have therefore concluded that elimination of the Bailiff positions did not result in TEI being granted to junior employees in the same position as more senior Correctional Officers. Nor did the Employer eliminate any Correctional Officer positions.
12Having reached these conclusions, and after applying the principles established in earlier cases, I have determined that the Employer properly exercised its discretion when it considered all the grievors’ requests to exit under the TEI.
13The grievances before me are therefore dismissed.
Dated at Toronto, Ontario, this 3rd day of June, 2024.
Appendix A – May 23, 2024
Tab#
GSB#
Name
Ministry
Classification
Location
1
2019-0430, 2019-1835, 2019-1997
Barber, Stewart
SOLGEN
CO2
Maplehurst Correctional Institution
2
2019-0481
Hutton, Iain
SOLGEN
CO2
CECC
3
2019-0482
Beck, Glennis
SOLGEN
CO2
CECC
4
2019-0483
Mrowiec, Jacek
SOLGEN
CO2
CECC
5
2019-0762
Bertillo, Lawrence
SOLGEN
CO2
OCI
7
2019-2112
D'Andrea, Kevin
SOLGEN
CO2
Maplehurst Correctional Institution
8
2019-1866
Adams, Ian
SOLGEN
CO2
Maplehurst Correctional Institution
9
2019-1181
Diruzza, Aldo
SOLGEN
CO2
Maplehurst Correctional Institution
10
2019-1263
Narejko, Frank
SOLGEN
CO2
Maplehurst Correctional Institution
11
2019-1267
Valleau, Mary
SOLGEN
CO2
Vanier
12
2019-1270
Chroust, John
SOLGEN
CO2
Maplehurst Correctional Institution
13
2019-1548
Holland, Joanne
SOLGEN
CO2
Maplehurst Correctional Institution
14
2019-1549
Sikal, David
SOLGEN
CO2
Maplehurst Correctional Institution
15
2019-0934
Moroun, Ian
SOLGEN
CO2
SWDC
16
2019-1906
Holloway, Tracey
SOLGEN
CO2
OCI
17
2019-1118, 2019-1836
Renda, Frank
SOLGEN
CO2
Maplehurst Correctional Institution
18
2019-1785
Prentice, Andrew
SOLGEN
CO2
Elgin Middlesex
20
2019-1787
Tuff, Cindy
SOLGEN
CO2
Elgin Middlesex
23
2019-0485
White, Carl
SOLGEN
CO2
CECC
24
2019-0565
Kerr, Robert
SOLGEN
CO2
CECC
25
2019-0613
Thomas, Malcom
SOLGEN
CO2
CECC
26
2019-0835
Burrage, Kerry
SOLGEN
CO2
CECC
27
2019-2287
Worona, Anthony
SOLGEN
CO2
CECC
28
2019-0969
Carson, William
SOLGEN
CO2
CNCC
29
2019-0970
Marshall, Daniel
SOLGEN
CO2
CNCC
30
2019-0971
Robitaille, Jason
SOLGEN
CO2
CNCC
33
2019-0865
Mackevicius, Robert
SOLGEN
CO2
Sudbury Jail
35
2019-0905
Young, Andrew
SOLGEN
CO2
Quinte
36
2019-0906
Elliott, Wayne
SOLGEN
CO2
Quinte
37
2019-0975
De-Jong, David
SOLGEN
CO2
Quinte
38
2019-0976
Hicks, John
SOLGEN
CO2
Quinte
39
2019-0977
Jikeli, Arpad
SOLGEN
CO2
Quinte
40
2019-1054
Leonard, Steven
SOLGEN
CO2
Quinte
44
2020-0760
Cirello, Sandro
SOLGEN
Fire Advisor 1
3767 HWY 69 South Sudbury
43
2019-0491
Derstroff, Richard
SOLGEN
Fire Investigator 2
Midhurst
42
2019-0490
Fischer, Bryan
SOLGEN
Fire Investigator 2
FIS Team 2 - Midhurst
41
2019-2414
Lovelock, Heather
SOLGEN
OAG 9
CECC
46
2019-0760
Adams, Diana
SOLGEN
PPO2
15 Ontario Road Walkerton
48
2019-1629
Belifore, Tony
SOLGEN
PPO2
P&P Black Creek
111
2019-0974
Davidson, Lee-Anne
SOLGEN
PPO2
P&P Ottawa West
45
2019-0853
McCann, Barry
SOLGEN
PPO2
390 David Dr Newmarket
47
2019-0941
McLaurin, Robert
SOLGEN
PPO2
10A Hearst Way Kanata
6
2019-0828
Beale, Susan
SOLGEN
Soc Wrk Supr 1
OCI