GSB# # 2013-1446; 2013-1574; 2013-1696; 2019-1156

UNION# 2013-0999-0049; 2013-0999-0063; 2013-0999-0069; 2019-0340-0017

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 - Clarke)

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

July 26,2024, February 12, 2025, and May 7, 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.

3The Grievor maintained that a Director offered reasons that did not apply to him or his position during a meeting to discuss why he was not granted TEI. In the Union’s submission, this is evidence that the decision makers did not turn their minds to the appropriate facts when it considered the Grievor’s request for TEI. The Grievor also questioned whether his position was filled after his retirement.

4The Employer did not deny that an error was made during discussions with the Grievor, however, it asserted that this was an honest mistake that did not taint the earlier decision-making process. It maintained that at all material times the decision makers considered the relevant facts. It determined that the Grievor’s FTE was required by the Ministry, and reductions could not be made at that time. The Grievor’s position was subsequently converted from a FO2 position to a TA2 position after the Grievor retired.

Appendix 46

5The 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

6I 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.

7In this case, it is most unfortunate that the Director was confused about which position the Grievor occupied when she spoke to him. Nonetheless, based on the evidence before me, I am satisfied that this was an innocent error made during their conversation and that the Grievor’s actual position was considered during the decision-making process.

8I am also satisfied that the Grievor’s position was not eliminated after he retired in 2020. Although there was a delay due to the pandemic, his position was converted and filled. I have determined in other cases that a subsequent conversion of an FTE does not amount to an improper exercise of discretion: Arseneau et al, issued June 11, 2021.

9After 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.

10I find that the Employer properly exercised its discretion when it considered the Grievor’s request to exit under the TEI. The grievance is dismissed.