GSB# 2013-1446; 2013-1574; 2013-1696; 2020-2447

UNION# 2013-0999-0049; 2013-0999-0063; 2013-0999-0069; 2020-0533-0012

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 – Lagrimas)

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

October 18, 2024, final submissions February 12, 2025

Decision

1This grievance relates to the operation of the Transition Exit Initiative, (“TEI”), under Appendix 46 of the Collective Agreement. The parties agreed that the current matter 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 grievance, Will Say Statement, and accompanying documents in support of the grievance. The Grievor also attended the hearing to further explain his concerns.

3The Grievor was a Pay and Benefits Specialist with the Ministry of Public and Business Service Delivery and Procurement. Unfortunately, Mr. Lagrimas had a stroke in 2016. He was eventually converted from a short-term sickness plan to a long-term disability plan in October 2018.

4The Grievor submitted a request for TEI in May 2019, but was not approved before his retirement in 2020. Mr. Lagrimas believes that he was treated unfairly, and that he was singled out because of his previous role as a Union steward. He also noted that the Employer was able to redistribute his duties for two and a half years, without replacing him. He believes this supports his conclusion that his TEI request could have been granted. In his case, the denial of TEI negatively affected his ability to obtain an unreduced pension.

5The Employer maintained that because the Grievor was on LTIP, he did not have a home position from which he could exit under the TEI. In any event, there were no TEI approvals or plans to reduce positions in the Grievor’s office at the time he applied for TEI.

Appendix 46

6The relevant provisions of Appendix 46 are set out below:

1. All regular, regular part-time and flexible part-time employees will be eligible to apply to a Transition Exit Initiative (TEI).

2. 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

7I 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.

8I am very sorry that Mr. Lagrimas suffered a stroke and was no longer able to work in the OPS. While I appreciate that TEI would have been very beneficial for him, I have previously determined that the Employer did not act improperly when it denied the TEI requests of employees on LTIP: Warszawski et al., issued June 8, 2023.

9Regrettably, as I have already determined, TEI is not a general retirement allowance provided to everyone who requests it. In this case, the Grievor no longer occupied a home position, so his departure would not assist with transformation of the OPS. There is also no factual basis to find that the Employer was influenced or motivated by the Grievor’s former role as a Union steward.

10After considering the submissions of the parties and applying the principles established in earlier cases, I have determined that this grievance is not distinguishable from grievances that have previously been dismissed.

11I find that the Employer properly exercised its discretion when it considered the Grievor’s request to exit under the TEI. The grievance is dismissed.