GSB# 2024-02123

UNION# 2024-0467-0025

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Down)

Union

• and -

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

Employer

BEFORE

Dale Hewat

Arbitrator

FOR THE UNION

Dan Sidsworth Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Michelle LaButte Treasury Board Secretariat Labour Strategy & Employee Transition Manager

HEARING

May 27, 2025

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.

7Ryan Down is a Corrections Officer (“CO”) 2 currently working at Quinte Detention Centre in Napanee Ontario. On December 14, 2022, Mr. Down applied to an Expression of Interest (“EOI”) posted by the Employee Transition Unit on December 8, 2022, asking Fixed Term COs across the Province to express their interest in being considered for a roll-over to Regular (classified) service at the Kenora Jail. The EOI clearly stipulated that where an applicant is successful in obtaining a roll-over to Regular (classified) service it would be final and binding with no opportunity to decline.

8The EOI was the result of a Memorandum of Agreement (MOA) dated December 1, 2022 to fill twenty-eight (28) CO vacancies at the Kenora Jail in accordance with Appendix COR 8 (Rollovers) of the Collective Agreement. On January 23, 2023, another MOA was issued confirming nine (9) individuals, including Mr. Down, were eligible to be rolled over to Regular (classified) service at the Kenora Jail effective February 6, 2023. On January 25, 2023 and again on February 28, 2023 Mr. Down was advised that he was accepted for the position to be rolled over to Regular (classified) service at the Kenora Jail.

9On August 10, 2023 Mr. Down advised the Employee Transition Unit that he no longer wished to work at the Kenora Jail and that he wanted to return to his previous position at the Quinte Detention Centre. Following this communication and discussion between the Parties, a MOA was entered into and signed by Mr. Down on August 22, 2023. According to the terms of the August 22, 2023 MOA, Mr. Down was rolled over to Regular (classified) status at the Kenora Jail and he agreed to irrevocably resign his employment with the Ministry, in writing, which he did on August 22, 2023. The MOA also provided that Mr. Down would be reappointed to a Fixed Term CO position at Quinte Detention Centre which he previously held prior to his roll-over at the Kenora Jail and that he would assume the same classification, wage rate and benefits that he held prior to his resignation.

10Among other things, the August 22, 2023 MOA also clarified that Mr. Down’s seniority under Appendix COR19 of the Collective Agreement would reset to zero (0) hours upon reappointment and that he would be treated as a brand-new Fixed Term employee for the purposes of roll-overs, competitions, layoffs, and transfers in accordance with Appendix COR19. The MOA also confirmed that any Fixed Term Seniority previously accumulated prior to the date of resignation would no longer count towards Mr. Down’s Seniority under Appendix COR19 or the calculation of a Continuous Service Date (CSD) upon roll-over to Regular (classified) status under Article 18 of the Collective Agreement.

11On October 3, 2024, Mr. Down filed a grievance alleging that the Employer violated Articles 2, 3, 6, 8 and 18 of the Collective Agreement by removing his seniority and that he was under duress when he signed the August 22, 2023 MOA. Essentially, Mr. Down takes the position that he was under duress when he was required to resign from the Kenora Jail Regular (classified) CO position in order to be placed back in his Fixed Term position at the Quinte Detention Centre which caused a break in service causing the loss of Seniority and the consequences of being considered a new employee. By way of remedy, Mr. Down seeks to have his resignation rescinded, and to have his total hours rectified to reflect his Fixed Term service.

12The Collective Agreement addresses this issue definitively. Article 18.4 states that “Continuous service shall be deemed to have terminated if: “(a) an employee resigns or retires,” On the facts before me, there is no question that Mr. Down was aware when he applied for the EOI on December 14, 2022 that it clearly stipulated that where an applicant is successful in obtaining a roll-over to Regular (classified) service, the rollover is final and binding with no opportunity to decline. Confirmation of the roll-overs to the Kenora Jail was provided in writing to the Mr. Down on January 25, 2023 and again on February 28, 2023, advising that he was accepted for the position at the Kenora Jail. The email was clear that the roll-overs to Regular (Classified) status at Kenora jail were effective February 6, 2023, unless a different start date was negotiated.

13There is nothing in the facts to find that there was any duress when Mr. Down signed the August 22, 2023 MOA and provided his resignation that same day in writing. Mr. Down knew that accepting the roll-over to a Regular (classified) CO position at Kenora Jail was final and binding. When he advised the Employer on August 10, 2023 that he did not want to work at the Kenora Jail and wanted to return to the Quinte Detention Centre, he was aware that he could not go back to his former Fixed Term position without first resigning from the Regular (classified) full-time CO position at the Kenora Jail that he voluntarily applied for and was a successful candidate.

14The August 22, 2023 MOA clearly confirms that Mr. Down was confirmed in the Regular (classified) position at Kenora Jail, that he resigned from that position and that he was rehired as a Fixed Term employee at the same wage rate he held previous to the resignation. In addition, the MOA confirms that his Seniority has been broken and reset without it carrying over from his previous status as a Fixed Term employee. Because I have found that Mr. Down voluntarily applied for the roll-over Regular (classified) position at the Kenora jail, knowing that it was final and binding and that he would not be able to decline an offer for that position, his decision to not take the position can only be seen as a resignation causing a break in service. The August 22, 2023 MOA and its terms are in line with Article 18.4 of the Collective Agreement. I also find that there has been no violation of Articles 2, 3, 6 or 8 of the Collective Agreement.

15Having considered the facts and submissions of the parties, and for all of the reasons outlined above, this grievance is dismissed.