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)
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
June 10, 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 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.
6With respect to the grievance filed by Joseph Blake, he was granted TEI but alleges that some of his entitlements were paid late. The Employer disagrees that payments were made later than required under the collective agreement, but submits that if a payment was late, it was by no more than two days. In these circumstances, even if I were to find that the Grievor received a portion of his entitlements after the date set in the collective agreement, I would decline to award a remedy for this minor delay.
7Grievor Fe Fernandez was on short term sick leave and returned to work on an accommodation plan. They argued that they should have been granted TEI as an accommodation instead. No other information was offered to support this argument. While the Grievor apparently wanted to exit the OPS, there is no basis to find that TEI was an appropriate form of accommodation for an employee returning to work after a short-term sick leave.
8After considering the submissions of the parties and applying the principles established in earlier cases, I have determined that the material facts in the remaining grievances do not distinguish them from the grievances that have previously been dismissed. Accordingly, I find that the Employer properly exercised its discretion when it considered the requests to exit under the TEI submitted by the grievors listed in Appendix A.
9The grievances before me are therefore dismissed.
Dated at Toronto, Ontario, this 24^th^ day of July 2024.
Appendix A – June 10, 2024
| Tab# | GSB# | Name | Ministry | Classification | Location |
|---|---|---|---|---|---|
| 76 | 2019-1370 | Law Yun (David Law) | MOH | Systems Officer 4 | Toronto, 5700 Yonge Street |
| 77 | 2019-1494 | Joanne Tessier | MOH | Ambulance Comm Officer 1 | Sudbury, 3767 Highway 69 South |
| 78 | 2019-0704 | Joseph Blake | MAG | OAG 8 | Toronto, 60 Queen Street West |
| 80 | 2019-1770 | Elizabeth Tan | MMAH | OAG 12 | Toronto, 777 Bay Street |
| 81 | 2019-2144 | Leila Singh | MMAH | OAG 8 | Toronto, 777 Bay Street |
| 83 | 2022-12065 (withdrawn) | Viktoria Light | MECP | Environmental Officer 4 | Peterborough, 300 Water Street |
| 84 | 2019-1683 | Robin Bies (Kingston) | MLITSD | Employment Standards Auditor 2 | Toronto, 5001 Yonge Street |
| 86 | 2020-0799 | Christopher Lewis | MNRF | Resource Technician 3 | Kingston, 51 Heakes Lane |
| 89 | 2020-1848 | Sheri Rowan Dayneka | MNRF | OAG 8 | Kempville, 10 Campus Drive |
| 90 | 2020-2002 | Lynda Cocking | MOH | Executive Officer 1 | Kingston, 49 Place D’Armes |
| 102 | 2019-0391 | Fe Fernandez | MLITSD | OAG 8 | Toronto, 5001 Yonge Street |
| 105 | 2019-2462 | Tim Dempsey | MNRF | Resource Technician 3 | MNRF Fire Headquarters NB |
| 115 | 2019-0596 | Beth Nethercott | MLITSD | Unable to Locate | London |