GSB# 2024-00479; 2024-00480; 2024-00481;

2024-00482; 2024-00483

UNION# 2024-0290-0005; 2024-0290-0006; 2024-0290-0007;

2024-0290-0008; 2024-0290-0009

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Harris et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Children, Community and Social Services)

Employer

BEFORE

Heather Ann McConnell

Arbitrator

FOR THE UNION

Chris Bryden Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel

HEARING

April 16, 2025

Decision

1Before the Board are five individual job competition grievances brought on behalf of five different employees – Brad Harris, Andrew Mercer, Jeremy Dignard, Jason Roe, and Brittany White (collectively referred to as the Grievors). The grievances are virtually identical and allege that the Grievors were properly awarded positions through a job competition and the Employer violated the collective agreement when their job offers were rescinded.

2Each of the Grievors applied for a position as a correctional supervisor (CS) in the Ministry of the Solicitor General, each received a verbal offer and each accepted the position. However, those offers were rescinded by the Employer after a review of the Grievors’ respective training records. It is the Employer’s position that an error occurred during the recruitment process and that the individuals were not qualified for the CS position because they lacked necessary foundational training. The Union takes the position that the accepted offers are binding on the Employer.

3Article 22.16 of the collective agreement applies to this case and confirms that decisions that fall under that provision will not have precedential value. Such decisions are also expected to be succinct and issued in short order. This decision is issued in accordance with Article 22.16 and without detailed reasons.

4For the simplified reasons outlined, below the grievances are allowed.

Background

5The issues in this case flow from a long history of complex litigation. This contextual background is helpful to understand the nature of the dispute but will be reviewed only in summary. It stems from first level managers at various correctional institutions objecting to being excluded from collective bargaining.

6In 2017, after lengthy legal proceedings, the Ontario Labour Relations Board determined that those first level managers (sergeants or other similarly named positions) who did not perform managerial functions could be represented, but due to restrictions set out in the Crown Employees Collective Bargaining Act, only by OPSEU/SEFPO or the Association of Management, Administrative and Professional Crown Employees of Ontario (AMAPCEO). See 2017 CanLII 41086 (ON LRB).

7AMAPCEO thereafter filed grievances alleging that it should represent the sergeants and OPSEU/SEFPO intervened in those proceedings claiming its own jurisdiction to represent the employees. Ultimately Arbitrator McLean determined that OPSEU/SEFPO held the bargaining rights for any Sergeants who did not exercise managerial function (or were not excluded for other reasons). See 2023 CanLII 72160 (ON PSGB), 2022 CanLII 31316 (ON GSB).

8Shortly after the McLean decision was issued, in or around May of 2022, the Ministry of the Solicitor General announced that it would undertake a review of the supervisory and management functions in their correctional institutions. The results of the review were announced in November of 2022, and confirmed that the Ministry would create a new supervisory classification within the Institutional Services Division. In the interim the Management Board of Cabinet approved the new supervisory classification and confirmed that it would fall within the OPSEU/SEFPO bargaining unit and be called correctional supervisor (CS).

9Initially the Employer attempted to reclassify interested sergeants into the new CS positions. However, OPSEU/SEFPO filed grievances in response asserting that the Employer created a new classification and that directly assigning individuals from outside of the bargaining unit to fill those positions was contrary to the collective agreement including the job posting requirements. A number of those grievances were also heard by Arbitrator McLean and in June of 2023, he issued an award which found that the collective agreement was violated. See 2023 CanLII 61433 (ON GSB).

10Following the 2023 McLean decision the Ministry of the Solicitor General posted the CS positions and undertook a large-scale competition. This is the job competition at issue in the grievances currently before the Board.

The grievances at issue

11The facts in the case before the Board were largely undisputed and were thus stipulated by the Parties in their respective submissions. In addition to the Parties submissions, the Board also received and marked as exhibits several documents, including the grievance forms, the job posting at issue (Job ID 208152), and various emails sent by agents of the Employer to the Grievors. While the emails were not identical and not all Grievor’s received or retained copies of all emails, they can generally be categorized as those that confirmed verbal employment offers (or said that the Grievor was a successful candidate), and emails rescinding the Grievors’ verbal employment offers.

12The Parties agree that each Grievor was screened into the competition and competed for the CS positions. They were each successful and received verbal offers from the Employer. As outlined above, some of those verbal offers were confirmed by email. However, after those offers were made and accepted by each of the Grievors, someone in the Ministry of the Solicitor General reviewed their respective training records and determined that they lacked the necessary foundational training required to be a correctional officer in Ontario working with adult offenders. Consequently, the verbal offers extended to the Grievors were rescinded.

13In this case there is no doubt that offers of employment were made to and accepted by the Grievors. The Board finds those to be formal offers of employment and binding on the Employer. The Ministry held a large-scale job competition which was open to employees in other Ministries. People outside of the Ministry of the Solicitor General were free to apply and had an expectation that they would be considered. It was not a job competition open only to employees in corrections who had CO training.

14However, in fashioning a remedy, the Board must also consider the Employer’s submissions that the Grievors lacked the necessary foundational training for the CS position and that without that training they could not perform their duties. Each of the Grievors were youth service officers (YSO) in the Ministry of Children, Community and Social Services (MCCSS) prior to applying for the CS position with the Ministry of the Solicitor General. It is not disputed that their jobs entail the care, custody and control of youth offenders incarcerated in youth facilities operated by MCCSS. As part of their training these YSOs receive use of force and defensive tactics training.

15The Parties agreed that the Grievors had not received the foundational training provided to correction officers in adult facilities. The Employer argued that the YSO training was not equivalent to the CO training. According to the Employer, there is a long history of YSOs transitioning into CO positions as a result of closures or downsizing and in those cases additional training was always required. The Grievors took the position that the CO and YSO training was equivalent.

16While the Employer took the position that the lack of training disqualified the Grievors from the job competition, it argued in the alternative that if the Board found that there was a binding offer, the Board should also order training or determine the issue of the equivalency of the two trainings.

17In these circumstances, the Board does not find it necessary to determine whether the youth officer training, including use of force and defensive tactics training, and the foundational training for corrections officers is equivalent. The Employer asserted that there is a history of YSOs receiving additional training when moving into CO positions. The Union did not challenge this assertion. There is no reason to believe that additional training would not, in this case, address the Employer’s concern about offering the CS positions to the Grievors. As such, the Ministry of the Solicitor General is to review the training records of the individual Grievors and provide whatever reasonable training it deems necessary to ensure that they are adequately prepared for the positions they were offered. The training, if necessary based on the individual training records, should be consistent with the CO foundational training and the training historically provided to YSOs moving into CO positions.

18Based on the submissions of the Parties, each Grievor should be offered the next available CS vacancy, corresponding to the offer they were provided with. For clarity, if the original position was temporary, they should be offered the next available temporary position in the original correctional facility offered. Similarly, if the position was permanent, they should be offered the next available permanent position in the facility originally offered.

19Should any of the Grievors decline the offer made or any reasonable training deemed necessary by the Ministry in accordance with this decision, the Ministry’s obligation shall be deemed by the Board to be discharged.

20The Board shall remain seized with respect to the implementation of this decision.