GSB# # 2013-1446; 2013-1574; 2013-1696; 2019-0930

UNION# 2013-0999-0049; 2013-0999-0063; 2013-0999-0069; 2019-0706-0003

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 - Falkowski)

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

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. The Employer provided supplementary documents.

3On February 4, 2019, the Grievor requested a 12 month Leave of Absence (“LOA”). He had successfully applied for a position with the Thunder Bay Police Service, with a start date of March 18, 2019. This was a significant career change, and the Grievor was uncertain whether he would remain in the police force or want to return to his position in the Ontario Public Service (“OPS”). The Employer granted his request for leave.

4Shortly after his leave was approved, the Grievor applied to exit the OPS under the TEI. His request was not granted, however, the request of a more junior employee in his office, in the same position, was granted in March of 2019.

5The Union maintained that the Grievor was the most senior employee and should have been approved for TEI. The Employer stated that it did not consider Mr. Falkowski’s request because it determined he was no longer eligible to exit the OPS as he was on an approved LOA that guaranteed him a position should he wish to return to the OPS.

Appendix 46

6The relevant provisions of Appendix 46 are set out below. I have included the initial provision and noted where it was subsequently amended:

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 now issued a succession 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.

8The Union submits that Mr. Falkowski was still an employee of the OPS when TEI was granted to a junior colleague in the same position and same office. That violates the express provisions in Appendix 46, at paragraph 2 iv. that where “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”.

9The Employer argued that while Mr. Falkowski was eligible to apply for TEI, he was no longer eligible to exit under TEI because his LOA was predicated on an assurance that his position would remain available should he wish to return. The Employer further submitted that even if there was a breach of the collective agreement, it was a technical breach and it would be unfair to grant TEI to an employee who had already taken employment elsewhere.

10Appendix 46 is clear that seniority governs which employee will receive TEI when there is more than one eligible employee. The Employer is free to determine whether granting TEI to an employee in a given position would assist with transformation of the OPS. But, like all other employees, the Grievor was entitled to decide whether he was prepared to depart from the OPS if TEI was granted.

11I appreciate that the Employer accepted the Grievor’s explanation at face value when it granted his request for a leave of absence. Nonetheless, the Grievor applied to exit the OPS after his leave was approved, indicating his intention and willingness to relinquish his position under the right circumstances.

12In my view, the Grievor’s request for TEI demonstrated his agreement that he would forego his rights under the LOA if his request for TEI was approved. He was still an employee, with a home position that could have been eliminated, and the Employer was obligated to consider his request. By awarding TEI to a more junior employee, the Employer violated the terms of Appendix 46.

13Having found that the Employer violated Appendix 46, the grievance is allowed. In accordance with the request of the parties, I have determined that it is not necessary to remit the matter back to them to consider the appropriate remedy. I have concluded that the Grievor is entitled to receive the full benefit owed to him under TEI. I will remain seized in the event that an issue arises regarding the interpretation or application of my decision.