GSB# 2021-2592

UNION# 2021-0228-0013

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (De Sousa)

Union

• and -

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

Employer

BEFORE

Annie McKendy

Arbitrator

FOR THE UNION

James Sommerville Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Dimitrios Molos Treasury Board Secretariat Legal Services Branch Counsel

HEARING

May 27, 2024

Decision

1This Decision addresses a grievance alleging a breach of Article 31A.15 of the collective agreement between the parties which sets out the conditions for the conversion of a Fixed Term (“FXT”) position to a Regular Service position.

2Initially two grievances were before me. The parties advised at the hearing that grievance 2021-2591, OPSEU # 2021-0228-0012 is resolved. This decision pertains only to 2021-2592.

3The Grievance was scheduled pursuant to article 22.16 of the collective agreement in place between the parties. I provide only brief reasons in keeping with article 22.16, and this Decision is without precedent. At the hearing, the parties provided me with the grievance, the Union’s particulars, the Grievor’s time sheets, attendance records from WIN and her attendance calendar. The parties jointly explained the documents to me, the Grievor was given an opportunity to provide an explanation of her position, and the parties provided me with the relevant case law.

4The Grievor submits that her FXT position as a Client Services Representative should automatically have been converted to a Regular Service position after eighteen (18) months, on or about November 5, 2021.

5The Employer takes the position that FXTs must work a minimum of 1,725.50 or 230 days annually to meet the threshold for automatic conversion. The Employer states that the Grievor took approximately fifty-eight (58) sick days during the relevant eighteen (18) month period and therefore falls short of the required number of straight time hours for conversion. The number of absences was not disputed by the Union.

6Further, the Employer states that the Grievor’s absences do not fall within the definition of the term “authorized leave of absence” at article 31A.15.1.3. The Employer submits that authorized leaves of absence are those for which the Grievor used an earned monthly credit and was paid. Only those are included in the calculation of straight time hours. The Employer noted that the Grievor had used some paid absences covered by an earned credit, but explained that it did not rely on them in calculating the missed fifty-eight days.

7The Employer submits that the term “authorized leave of absence” does not include absences supported by a medical note and approved by the Employer but that are not covered by a credit. In support of this interpretation of the collective agreement the Employer points to the Board’s decision in OPSEU (McPhail et al.) v. Ontario (MAG), 2003 CanLII 52858 (ON GSB) (Briggs) (“McPhail”) in which the principle was established. The Employer further points to the Board’s decision in OPSEU (Jacobs et al) and Ontario (Solicitor General), 2020 CanLII 97349 (ON GSB) (Hewat) in which the decision in McPhail was followed.

8For its part, the Union argues that the Grievor’s unpaid absences constitute an “authorized leave of absence”. The Union makes two arguments in support of this position. First, it relies on a document entitled OPSEU Collective Agreement Explanatory Note from 2014 which states it was “developed by the Employer in consultation with OPSEU”. The document states: “The eighteen (18) months must be consecutive. For the purpose of Article 31A.15.2, an incumbent’s authorized leave (for example: vacation) will not constitute a break in the consecutive eighteen (18) month qualifying period and the period of time absent will be counted toward the consecutive eighteen (18) month period [refer to GSB decision number 1571/97 (Briggs, 1997)].” The Union submits that this document draws no distinction between absences which are paid by way of an earned credit and those that are simply approved.

9Second, the Union points to decision number 1571/97 (Briggs, 1997), which it argues takes a more expansive view of the term. The decision states: “authorized leaves of absence are to be included in the calculation of straight time hours.” The Union submits that this decision makes no distinction between paid and unpaid absences and is relied upon in McPhail while also contradicting it. On that basis, the Union submits I should depart from the principle in McPhail.

10It is not clear to me that the decision number 1571/97 or the OPSEU Collective Agreement Explanatory Note contradict the decision in McPhail. Rather, they can be read to be consistent if I accept that McPhail goes a step further by more narrowly defining the term “authorized leave of absence”.

11In keeping with the decision in ATU (Blake et al) v. Ontario (TATOA), GSB# 1276/87 (Shime), that the Grievance Settlement Board is one board of arbitration, I am bound to follow the ruling in McPhail, absent exceptional circumstances. I do not find that the Union has pointed to exceptional circumstances that would cause me to depart of the decision in McPhail.

12The grievance is therefore dismissed.