Ontario Public Service Employees Union (Simmons et al) v. The Crown in Right of Ontario (Ministry of Children, Community and Social Services), 2025 CanLII 65283

GSB# 2024-00822

UNION# 2024-0222-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Simmons et al)

Union

• and -

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

Employer

BEFORE

Tatiana Wacyk

Arbitrator

FOR THE UNION

Luka Ryder-Bunting Koskie Minsky LLP Counsel

FOR THE EMPLOYER

Christopher New Treasury Board Secretariat Legal Services Branch Counsel

HEARING

June 4 & June 23, 2025

Decision

1This is a group grievance brought by 48 employees working as full-time caseworkers in the Hamilton office of the Ontario Disability Support Program (“ODSP”).

2The grievance was brought pursuant to Article 22.16 and alleges the employer has violated Articles 2, 3.3 and UN 8.2.1 of the Collective Agreement specifically, but not exclusively, by not distributing overtime fairly.

3Mediation was unsuccessful, and in order to expedite the resolution of this grievance, the parties submitted the following Agreed Statement of Facts (“ASF”)

4By agreement of the parties, this decision is issued in accordance with Article 22.16 of the collective agreement, and is without prejudice or precedent.

5The ASF has been reproduced without the referenced documents.

AGREED STATEMENT OF FACTS

1. The Parties have agreed that this grievance will proceed under Article 22.16 of the Collective Agreement.

2. The Parties agree to the following facts for the purpose of the adjudication of this matter. Either party may supplement the agreed facts with evidence on the topics agreed between the Parties.

3. The Parties have further agreed that the documents attached herein are entered into evidence and either party can make representations about the effects of their contents.

Background

4. The Ministry of Children, Community and Social Services runs a number of offices for the Ontario Disability Support Program.

5. The Ontario Disability Support Program Hamilton Office (“Hamilton Office”) is located at 119 King Street West in Hamilton. All of the group grievors are full-time caseworkers at the Hamilton Office.

6. Due to the nature of the distribution of work by the Employer, the Hamilton Office rarely has locally created overtime opportunities, that is, overtime opportunities elected for and distributed to Hamilton employees by Hamilton Management due to work in the Hamilton Office.

7. When overtime is made available, it is generally offered pursuant to a need for overtime work to address ‘ad-hoc’ or scope specific work available due to various operational needs, including but not limited to work that arises from other units or offices from time to time.

The First Overtime Opportunity

8. It would be the Employer's evidence that in late 2023, the Intake and Benefits Administration Unit (“IBAU”) experienced a high influx of Social Assistance Digital Applications (“SADA”) for Ontario Works (“OW”) financial assistance across the province. The IBAU identified that these applications were not being processed at the desired speed to meet the needs of the vulnerable applicants.

9. The IBAU notified the Director of the Social Assistance Service Delivery Branch (“SASDB”) of the issues and discussed possible solutions. As part of the SASDB corporate response, on December 20, 2023, the SASDB sought assistance from ODSP staff to assist with the backlog. The response identified that those who volunteered to assist with the OW backlog would be eligible for possible overtime opportunities.

10. Further, the response identified that volunteers would be required to complete training to provide the necessary functions in the Pending Application Queue (“PAQ” tasks) and in triaging Risk-Based Eligibility cases (“RBED” tasks) (together, the "First Overtime Opportunity"). The SASDB director requested that local managers discuss with their teams and put forward names of volunteers by January 3, 2024.

See attached at Tab 1.

11. On December 22, 2023, Erin McCloskey, ODSP manager, sent out a notice to employees at the Hamilton Office advising them of the opportunity to be considered to perform overtime work with the IBAU. Ms. McCloskey requested a response from employees who volunteered for overtime work by January 2, 2024. Management at the Hamilton Office indicated that they were collecting names for consideration only.

See attached at Tab 2.

12. Between December 22, 2023, and January 3, 2024, the Hamilton Office passed along the names of those Hamilton ODSP staff who volunteered to be trained and assist with the IBAU request. All employees who volunteered by the deadline were given the opportunity to train for the overtime opportunity. Each week the BAU would issue a call out to trained employees offering them overtime work.

See attached at Tab 3.

13. By January 5, 2024, over 450 ODSP staff members across Ontario had volunteered to assist with the OW applications and the Ministry began planning to ensure that the training was available to be completed by those volunteers. The learning session would ensure that all volunteers were trained in the PAQ and RBED tasks.

See attached at Tab 4.

14. On January 8, 2024, the Employer advised those who had volunteered for the opportunity to do overtime work that they would be trained for said work beginning in mid-January, 2024.

15. Between January and March of 2024, training sessions were completed with the ODSP staff from across the province. The training was a mandatory four hours and two optional hours.

16. All employees at the Hamilton Office who volunteered for the First Overtime Opportunity overtime were given the opportunity to perform overtime work. As a result, all interested and trained employees were given an equal opportunity to access the overtime available. Through the First Overtime Process, employees who were trained were able to work up to five overtime hours on every Saturday where the SAMs program was available. A list of Saturdays where SAMs is available is attached.

See attached at Tab 14.

The Second Overtime Opportunity

17. In March, 2024, IBAU decided that it required additional caseworkers to perform work related to the SADA application processing, and that these employees would require three additional days of training. The IBAU elected to require 50-60 caseworkers for this task (the "Second Overtime Process" or the "Disputed Process"). The legitimacy of the decisions to limit employees and the process of choosing the employees is in dispute between the Parties. The Employer intends to call a witness to speak to the operational requirements related to these decisions and the Union intends to dispute the decisions.

See attached at Tab 6.

18. No advertisement of an overtime opportunity was made to caseworkers at the Hamilton Office.

19. On March 22, 2024, Ira Matthews provided a list to Hamilton Management of caseworkers from the First Overtime Opportunity for consideration for a further overtime opportunity.

20. On March 22, 2024, management at the Hamilton Office received notice of the details of the further overtime opportunity for those caseworkers who had completed the PAQ and RBED training. The Hamilton Office was told that to complete the SADA training the caseworkers would be required to take three days of training that would occur during their normal work hours. Management at the Hamilton Office was given the opportunity to amend the list of caseworkers and declined to do so, with the exception of two caseworkers who were unavailable due to leaves at the time of the decision, and one administrative support clerk, who was not eligible for the opportunity.

See attached at Tabs 7 & 8.

21. On April 4, 2024, Ira Matthews took the list of employees that was provided by the local offices and used a computer program to randomly assign a number to each of the caseworkers from the 230 eligible candidates. The candidates were ordered based on the randomly assigned numbers to determine which caseworkers would be offered training for the Second Overtime Opportunity.

See attached at Tab 9.

22. On April 8, 2024, management at the Hamilton Office was again given the opportunity to amend the final list of randomly selected caseworkers from the Hamilton Office. Management at the Hamilton Office approved all of those that were selected by the OIU and did not alter the list.

See attached at Tab 10.

23. The OIU requested that local management approach each of the randomly selected caseworkers, including those from the Hamilton Office, and offered the opportunity for further SADA training and requested a commitment of at least 20 hours per month to the overtime opportunity. One Hamilton caseworker declined the opportunity. All five others accepted it.

See attached at Tab 11.

24. The Second Overtime Opportunity included up to approximately 21 hours of overtime per week when SAMS was open on Saturday (and ten hours per week if SAMS was not open on Saturday). After completing training, caseworkers who were selected for training to be able to work the Second Overtime Opportunity were able to work two hours of overtime before or after their scheduled shift and in addition were able to work overtime of up to 11 hours (from 7AM to 7PM with two thirty-minute breaks) on each Saturday where the SAMS platform was available.

25. Attached is a summary of overtime hours worked by caseworkers who participated in the First and/or Second Overtime Opportunities from April 1 to August 31. This does not include the employees who worked only the third opportunity.

See attached Tab 15.

26. Neither the Union nor caseworkers who were not selected were made aware that the selected caseworkers were to be offered this particular overtime opportunity.

27. On April 11, 2024, a concerned member working in the Hamilton Office wrote to various Employer representatives advising that it had come to her attention that a learning opportunity had become available for certain selected employees that was not offered to other employees, which she stated had undermined office morale and created feelings of rejection and hard feelings among members.

28. On April 12, 2024, a non-managerial, unionized worker responded to the member, and others on the email thread, that there had been two groups of Divisional Support Priority / IBAU work offers, and that the Disputed Process had resulted from a request to SASDB managers to identify a smaller group of staff to be trained for SADA application processing.

See attached Tab 16.

29. On April 16, 17, and 18 of 2024, the confirmed caseworkers from Hamilton were trained by the IBAU on the SADA processes along with caseworkers from across Ontario.

See attached at Tab 12.

30. After April 18, 2024, the five selected caseworkers were able to begin overtime work.

31. The employees who accepted the offer to participate in the Second Overtime Opportunity were able to work approximately 2 overtime hours per day before or after their scheduled shifts on each weekday between 7AM to 7PM and were able to work up to 11 hours (7AM to 7PM with two thirty-minute breaks) on every Saturday where SAMs was available.

32. Employees who were selected to train for the Second Overtime Opportunity were advised prior to accepting that they were to prioritize the Second Overtime Opportunity over other overtime opportunities.

33. The overtime opportunities provided for by the Disputed Process were available from April 20, 2024, until August 23, 2024.

34. Those caseworkers who were not identified to participate in the Second Overtime Opportunity continued to be eligible to participate in the other overtime streams if they were otherwise eligible.

The Third Overtime Opportunity

35. Another overtime opportunity was advertised to all employees in the Hamilton Office on May 7, 2024, for historical ODSP Applications and grants (the "Third Overtime Opportunity")

See attached Tab 17.

36. Similar to the First Overtime Opportunity, all employees were offered the opportunity to participate in this process, including receiving training and working the overtime itself.

37. Whether training was required depended on the experience of an individual caseworker. A number of the employees in this process were deemed adequately trained. 144 were formally invited to receive training. Training was completed in sessions beginning on May 13, 2024, and ending June 26, 2024. For employees who required it, there was the following training, and the following quantity of employees took the training:

a. SAMS Intake 1 (sessions May 15, May 28, and June 5): 7-hour course with 86 total participants

b. SAMS Intake 2 (sessions May 22, June 4, and June 11): 2.5-hour course with 81 total participants

c. Abbreviated Applications Program Policy for Intake Teams (sessions May 23 and June 26: 2.5-hour course with 145 participants

d. Abbreviated SAMS Intake course (session June 20) 5.5-hour course with 44 participants.

38. Employees began performing work through the Third Overtime Opportunity on May 18, 2024, though some required training before they could begin.

39. The Parties agree that between the First and Third Overtime Opportunities combined there were approximately 21 hours of overtime available to eligible employees per week when SAMS was available on Saturdays (and 10 hours where SAMS was not available).

40. For the purposes of the instant dispute, the Parties agree that essentially equal hours were available to employees participating in the Second Opportunity as there were for employees participating in the Third Overtime Opportunity (and for employees participating in both the First Overtime Opportunity and the Third Overtime Opportunity) as of the commencement of the Third Overtime Opportunity on May 18, 2024 (for employees who were adequately trained for the third opportunity as of that date, and for employees who were not, as of the date that they completed the required training).

See attached summary chart at Tab 18

41. All three overtime opportunities ended on August 23, 2024.

See attached at Tab 13

42. The Group Grievance is attached as Tab 19.

43. In addition to the documents above, the Parties agree to add in Tabs 20 and 21 into evidence.

Testimony of IRA Matthews

6Mr. Matthews is a senior manager with the Operational Improvement Unit, one of the corporate units in the Social Assistance Delivery Branch, providing support to 47 ODSP offices in the Social Assistance Delivery Branch. His testimony was as follows.

7The ODSP and the IBAU are sister branches responsible for direct service delivery, in terms of the Ontario Disability Support Program Benefits and Ontario Works.

8At the time at issue, Mr. Matthews was responsible for the training of ODSP staff, and the intake and benefits administration unit (IBAU) was trained by its own team of learning and development staff. Both teams are now merged and report to Mr. Matthews.

9“Ontario Works” was previously known as “Welfare” and is meant to be a short-term support program for people in financial need. It provides both financial assistance and employment skills supports. Applications are processed digitally, with the required information e.g. bank account, income, family status etc. uploaded and processed by to the IBAU unit staff within the case management system.

10Processing these applications involves several steps. Digital applications are received in a work queue within SAMS and are pulled from there by staff, who conducted a “Matching and Merging” function which includes; comparing the applicant information with information which may already be available; identifying and dealing with duplicate applications; and, imputing the application details into the “Application Management Reporting Tool”. The application is then processed through a risk-based eligibility system and “staff-based” triage process, which includes matching with other systems such as Canada Revenue, and credit checking, followed by actioning the application outcome within the Reporting Tool.

11In 2023, when the Ministry experienced more applications than the IBAU staff could handle, the turnaround time for processing applications exceeded the designated four-day limit, resulting in the potential for more negative consequences for the applicants.

12In response, the Ministry looked at both efficiencies in its internal processes and adding resources to its staffing complement. The latter included hiring and training new staff, as well as offering overtime opportunities to existing IBAU staff and other staff in the SASDB to stem the flow. This constituted the “First Overtime Opportunity” referenced in the ASF.

13The invitation to ODSP staff indicated that training would be required if they were to participate. Mr. Matthews testified that the focus of the work was on the earlier part of the application process, and, as described above, essentially involved comparing the information in an application with any that existed within the system to ensure the applicants weren’t already in receipt of benefits.

14However, by March 2024, while the speed with which applications had been moved into the system had improved, their processing time through the rest of the system had not.

15Efforts to address that aspect of the backlog resulted in the “Second Overtime Opportunity” referenced as such in the ASF. For that purpose, Mr. Matthews was approached by SASDB which requested an additional 50 to 60 ODSP caseworkers, to assist.

16Mr. Matthews indicated the opportunity was limited to those who were continuing with the First Overtime Opportunity, as they had already been trained on and continued to work on the initial part of the process. Mr. Matthews explained it was the view that familiarity with what had occurred up to that point would enable the participants to better perform the next step of the process.

17Consequently, all who had been trained and participated in the First Overtime Opportunity, which Mr. Matthews referred to as the “Match and Merge” function, were given the opportunity to participate in the next step of processing the applications i.e. the “Second Overtime Opportunity”.

18Mr. Matthews indicated this step in the process requires delegated authority to make recommendations and/or decisions, and required those participating to receive three days of training. This training would focus on entirely net new training, unique at that time to Ontario Works and foreign to ODSP staff.

19In that regard, he indicated the limit of 50-60 participants was consistent with adult learning considerations, and was also due to a licensing issue for the practice environment for the SAMS system, which limited to 50, the number of “dummy files” on which the requisite codes could be utilized and learned. Mr. Matthews further noted the IBAU was also onboarding numerous new staff, who were being trained at the same time as ODSP volunteers.

20In addition, Mr. Matthews testified consideration was given to the number of caseworkers who would be withdrawn from ODSP work for the training, without compromising ODSP service levels.

21In cross-examination, Mr. Matthews indicated the number of 50-60 participants, as well as the timing for the training, was determined by the IBAU, and conceded he did not know what considerations informed that number. (I note that in requesting volunteers, in an e-mail dated March 18, 2024 to Mr. Matthews, Helene Fredette, from IBAU, stated “We have the capacity to train 50/60 as a start”.)

22Mr. Matthews also conceded that if a second training session had been held, an additional 50-60 people could have been trained, and this would have solved the “classroom size issue” – but added that it would not address the concern regarding maintaining ODSP service levels.

23Similarly, when asked if the additional 4 hours training offered in the First Overtime Opportunity could not have been added to the three days of training offered in the Second Overtime Opportunity for any other staff who may have been interested, Mr. Matthews indicated that would have created operational difficulties, and he was not prepared to close offices for that purpose.

24When it was pointed out that the Third Overtime Opportunity involved significant training, Mr. Matthews indicated it had been “cohorted” so all could participate.

25In any event, Mr. Matthews then sent a list of those who had participated in the First Overtime Opportunity to the management of each of the offices, including the Hamilton office, with a request that the list be reviewed by the management team in order to identify “the best suited for the function”.

26However, in the Hamilton office, and as indicated in the ASF, only the names of those who had left the organization or withdrawn from performing the Match and Merge work, as well as that of one administrative support clerk who did not have the requisite authority, were removed. While Mr. Matthews conceded, in cross-examination, that no one was identified as “best suited for the function”, in re-direct he indicated the purpose of the list review was to ensure those on the list remained suited for the role and did not have personal circumstances that would have prevented them from participating.

27The 230 names from the 47 offices were entered into an excel randomizer, and the overtime opportunity was offered to those in descending order on the randomized list, starting with the first caseworker from the Peterborough office.

28In cross-examination, Mr. Matthews conceded that the existence of the backlog for both processing stages of the SADA applications was known in December 2023, but discussions regarding addressing the backlog in the second stage of the SADA processing did not occur until March 2024.

29Mr. Matthews conceded the two Overtime Opportunities were somewhat different, and that the Second OT Opportunity was available during the week, whereas the Match and Merge opportunity only existed on Saturdays when SAMS was available. However, when asked if it were possible that an individual who had been trained in the Match and Merge but discontinued their involvement for whatever reason might have been interested in the Second OT Opportunity, Mr. Matthews indicated the processes go through regular evolution, so their skills and experience may not have been up-to-date. Again, however, he agreed he could not be certain that was the case.

30While Mr. Matthews initially indicated that learning what was an entirely new process would only be of value to those who would be performing those processes, he also conceded that doing so could also create additional overtime opportunities in the future.

ARGUMENT:

Union

31The Union focused its argument on Article UN 8.2.1 of the Collective Agreement:

ARTICLE UN 8 – OVERTIME

UN 8.2.1 In the assignment of overtime, the Employer agrees to develop methods of distributing overtime at the local workplace that are fair and equitable after having ensured that all its operational requirements are met.

32The Union submitted the Article sets out both a procedural and substantive entitlement.

Procedural Entitlement

33The Union submitted that the Employer’s agreement to develop methods to distribute overtime that are “fair” and “equitable” is a distinct value to the Union, enabling it to assess and grieve the method chosen if appropriate.

34The Union also pointed out the existence of a “method’ benefits both parties, as it lessens the element of surprise. Employees and the Union knowing what to expect potentially reduces unnecessary grievances,

Substantive Element

35However, the Union pointed out the provision goes beyond simply requiring a method be developed for the distribution of overtime work. Rather, the Employer must turn its mind to ensuring the process is “fair” and “equitable”.

36Although the decision turned on other grounds, in support of that interpretation of the Article, the Union pointed to the following passage in Vice-Chair Waters decision in Ontario Public Service Employees Union (Union Grievance et al.) and The Crown in Right of Ontario (Ministry of Transportation) 2008 CanLII 4248 (ON GSB) at page 68:

I have also not been persuaded that the grievors had a contractual right to claim the overtime here in issue. The sole collective agreement provision suggesting such right might exist is article UN 8.2.1. Under the article, the Employer agrees “to develop methods of distributing overtime at the local workplace that are fair and equitable”. Counsel for the Employer in his argument stated that the article could not assist the Union in this case because no such methods have been developed for the Essex South Truck Inspection Station. I have some difficulty accepting this argument, as it would permit an Employer to distribute overtime on some basis that is not fair and equitable in the absence of a developed protocol. I am inclined to think that the wording of article UN 8.2.1. contemplates that overtime is to be distributed in a fair and equitable manner and that the obligation to “develop methods” is there to ensure that appropriate procedures or processes are in place to effect that contractual objective. It is unnecessary, however, to resolve this issue of interpretation, as I am satisfied that the Employer had valid operational reasons or requirements for implementing the TRU project as it did. [emphasis added]

37The Union also referred to the following definition of “Equitable” from the Encyclopedic Dictionary of Canadian Law

EQUITABLE

an adjective first used in English in 1598 from the French equitable = fair. 1. Fair and impartial. 2. A description of a right or obligation that is valid in equity as distinct from common law, as in “the beneficiaries of a trust have an equitable interest in the property.” 3. Dealing fairly and equally with all concerned: in accord with the principles of natural justice. Fair, and right. 4. Fair to all parties as dictated by reason and good conscience. 5. In relation to a remedy, one of a discretionary nature. In this sense, a remedy will be considered to have the character of an equitable even entirely statutory in nature.946 6. Equitable distribution: One in which everyone concerned receives a fair share of whatever is to be divided or allocated, based upon some rational criteria. [emphasis added]

38The Union submitted the Employer has three hurdles to overcome.

39In the first instance, the Employer had to demonstrate that it had an operational requirement to restrict the second overtime opportunity to a limited group of employees. However, the Union submitted the evidence doesn't demonstrate an operational requirement to limit the opportunity to 50-60 employees from the Hamilton office.

40Consequently, it was fairer and more equitable to make the opportunity available to the larger group.

Method

41However, even if the Employer was entitled to limit the opportunity to a small group, the Employer was still required to develop a process or method to ensure the distribution of overtime was fair and equitable – and which the parties could discuss. The Union submitted that at a minimum, all the employees ought to have been advised of the opportunity, given a chance to express interest in participating, and been given some consideration based on individual circumstances.

42In that regard, the Union submitted that some collective agreements address requirements of fairness and equity through rolling lists, or tie-breaking options – but maintained that in this instance there was no process at all.

43Specifically, there was no notice regarding the opportunity; there was no process to garner interest or determine who was available; and there was no assessment of those who had not had the prior overtime opportunity.

44Further, when management from the Hamilton office was given an opportunity to weigh in when presented with the draft list, they declined, because the only criterion for selection was training and involvement in the first overtime opportunity.

45The Union also took issue with Mr. Matthew's indication that the criterion utilized was not his decision. It pointed out the requirement for a fair and equitable method fell to the local workplace/office and there was no reason the decisions regarding how to distribute the second overtime opportunity was not made there, instead of using what the Union described as a collaborative process.

46In that regard, the Union submitted the Employer should not be allowed to avoid obligations where it is clear the local office is where the overtime will be distributed. The Employer remains the “Employer” and ought not be allowed to do indirectly what it can't do directly.

47Consequently, the Union submitted the “random” distribution, without considering other factors was arbitrary and not equitable and fair, and resulted in the second overtime opportunity being offered only to six employees within the Hamilton office.

48The Union submitted the overtime at issue constituted a very valuable opportunity i.e. 16 – 21 hours of overtime work, as well as three days of training. It pointed out that Mr. Matthews had acknowledged that the training and experience could also lead to future opportunities. The Union maintained the significant value of the opportunity ought to have been a factor in determining how the overtime would be distributed.

49In that regard, the Union pointed out the first and third overtime opportunities, were made available to the widest group possible, and that Mr. Matthews had conceded the second overtime opportunity could have been organized in a different way.

50Rather, the Union maintained the failure to develop a method or process for distributing the overtime in a fair and equitable way upset and confused the excluded employees.

Employer

“Local Workplace”

51The Employer pointed out that as set out in paragraph 5 of the ASF all of the grievors work in the ODSP Program at the Hamilton office. Accordingly, the “local workplace” for the purpose of UN 8.2.1 is the Hamilton Office.

52This is consistent with Arbitrator Dissanayake’s decision in Ontario Public Service Employees Union (Eckert) v Ontario (Ontario Clean Water Agency), 2021 CanLII 17430 (ON GSB) in which, at paragraph 6 he found the “local workplace” to be the physical location of the Peel South Transmission Systems facility.

53Similarly, Vice-Chair Stephens in Ontario Public Service Employees Union v Crown in Right of Ontario, 2013 CanLII 74169 (ON GSB), held at paragraphs 11 and 12, that for the purposes of Article UN 8.2.1 [then COR 8.2.1], “local workplace” is “unambiguous” and “clearly refers to a physical geographic location.”

54However, I note that in Ontario Public Service Employees Union (Santangelo et al) v Ontario (Transportation), 2015 CanLII 36171 (ON GSB), Vice-Chair Dissanayake, in paragraphs 13 & 15, pointed out that in the absence of a collective agreement definition, the employer in that instance had exercised its management right to treat each district as the “local workplace” for the purpose of UN 8.2.1 and that the union did not object to that as a general matter.

55While nothing turns on that distinction in the instant case, I simply point out that as there is no collective agreement definition, the definition of “local workplace” in UN 8.2.1 is not necessarily fixed, and in Santangelo et al, which relied on very different facts from those in this case, the local workplace was also different.

Method

56The Employer pointed out that Article UN 8.2.1 does not require that a method be in place for the distribution of overtime in all instances. Rather, methods can be developed to address needs as they arise.

57As stated by Arbitrator Dissanayake in his decision in Ontario Public Service Employees Union (Eckert) v Ontario (Ontario Clean Water Agency), 2021 CanLII 17430 (ON GSB) who stated the following at paragraph 5 regarding that Article UN 8.2.1:

The article does not require that the employer have one method for distribution of overtime, written or otherwise. It refers to “methods” in the plural. That in my view is a recognition that one method of distributing overtime that meets operational requirements in one situation may not meet operation requirements in another, for example where work required to be done is different. When a need for overtime arises the employer is entitled to assign it as it sees fit, subject only to the fair and equitable distribution requirement in article UN 8.2.1, having ensured that its operational requirements in the particular circumstances have been met. …

58As indicated by paragraphs 6 and 7 of the ASF, overtime opportunities available to the Hamilton Office often come in from various locations, are ad hoc, and address various operational needs. This is reflected in the difference between the methods for distribution in the three opportunities set out in the ASF.

Operational Requirements Have Primacy

59The Employer submitted that the requirement to distribute overtime work in a method that is fair and equitable arises only after the Employer’s operational requirements are met.

60The Employer pointed out that, as recognized by Arbitrator Dissanayake in his decision in Eckert, supra, the duty to ensure fair and equitable distribution is explicitly made conditional on “having ensured that all its operational needs are met”. [see paragraph 7]

61The Employer also referenced the decision in Ontario Public Service Employees Union v. Ontario (Transportation), 2008 CanLII 4248 (ON GSB), in which Vice-Chair Watters found that providing an overtime opportunity to a subset of employees did not violate UN 8.2.1 as it was done for sound operational reasons.

62The Employer submitted that was also the case in this instance.

63Specifically, the Employer submitted that the Second OT Opportunity was essentially a continuation of the First OT Opportunity, and as it was a smaller project, it would not have been appropriate to make the overtime opportunity available to all ODSP workers, as occurred in the First and Third opportunities.

64Further, the project required that those eligible to perform that more complicated next step in the process be familiar with what had previously occurred with the applications. In that regard, the Employer submitted the most important operational requirement in this instance was that the next step of the SADA processing be performed by employees trained to do work.

65This led to the narrower list of potential candidates, comprised of those who had been trained in, and performed the earlier steps of the application process, as well as those who had received the requisite three days of training in the next stage of the SADA process.

66The Employer maintained this differed from situations where the overtime opportunity does not require any additional training.

67In any event, the Employer submitted its operational requirement for the Second OT Opportunity was to utilize individuals who were trained in processing both the first and second steps in the SADA process.

68The Employer also maintained that determining who would be eligible for the training was a management right as per Article 2 of the Collective Agreement, and not subject to UN 8.2.1.

69The Employer also pointed out there was no suggestion that limiting the training opportunity to those who were trained in and had performed the first part of the processing of the applications was done for an improper purpose. Rather, the Employer maintained it was, in fact, done for sound operational reasons.

70Accordingly, the Employer submitted that the requirement to fairly and equitably distribute the overtime work did not arise until after the training decisions had been made.

71The Employer submitted the decision to make the opportunity available to all eligible employees who met the criteria was the first decision in the fair and equitable method utilized for distributing the work. However, it maintained this did not apply to the grievors, as none had the requisite training and experience required to perform the work.

72The Employer pointed out that the vetting of this list by Hamilton Management resulted in the removal only of two employees on leave from the Hamilton Office and one administrative supply clerk who lacked the requisite authority to perform the work. All other employees who met the eligibility criteria were given an opportunity to participate.

73The Employer pointed out that following the computer program randomly ordering the remaining candidates, management in the Hamilton Office was again given an opportunity to narrow the list further, but again chose to support all the employees on the list being given the opportunity to participate. The Employer characterized this as its second fair and equitable decision.

74The Employer pointed out that in both instances it did not attempt to preclude any eligible employees from taking advantage of the Second OT Opportunity.

75Consequently, it maintained the selection process was fair and equitable.

76In the alternative, the Employer submitted that If assignment of training for the Second OT Opportunity was not a management right, but rather was subject to UN 8.2.1, considerations which governed that decision ought to be taken into account.

77Specifically, the Employer listed these considerations as follows, and maintained they all ought to be considered “operational requirements”:

a. the need to reduce the original number of 110 employees who had initially volunteered;

b. the training limit of 50-60;

c. the need to minimize the interruption in services in the ODSP offices; and

d. a need for a selection process that enabled the SADA applications to be addressed in timely manner.

78Finally, the Employer submitted that even if the overtime opportunity could have been assigned in a different way, that alone is not grounds for intervention.

Reply

79In Reply, the Union challenged the Employer’s attempt to characterize the decision regarding who would receive the three-day training as distinct from the decision regarding who would be given the opportunity to perform the work. It pointed out that, in fact, the reverse was true, in that the decision regarding who would have access to the overtime opportunity determined who would receive the three days of training.

80The Union also reiterated its position that the reasons put forward by Mr. Matthews for limiting access to the Second OT Opportunity were not sufficient as he was not part of the decision-making process.

ANALYSIS:

Primacy of Operational Requirements

81There is no dispute that the language of UN 8.2.1 gives primacy to “all” the operational requirements at issue, and it is only once the Employer has determined how to meet those operational requirements that the duty arises to develop a method to distribute any resulting overtime fairly and equitably.

82In this instance, I find the Employer’s primary operational requirement was to find additional employees with sufficient training and experience to assist in addressing the pressing backlog in the SADA process, and to do so in a timely manner.

83The Employer was failing to meet the four-day timeline by which the applications needed to be processed, resulting in the potential for greater negative consequences for that vulnerable applicant group.

Method for Distribution

84There was no issue regarding the overtime arising from the first step of this process, which was available to any interested employees in the ODSP offices, and generated the "First Overtime Opportunity".

85Rather, this group grievance arises from the limitation of the overtime arising from the second stage of the SADA process i.e. the Second OT Opportunity.

86Mr. Matthews testified regarding his understanding as to the considerations which informed the decision-making regarding the method by which the Second Overtime Opportunity would be distributed. Specifically, he noted the limitations of the training facility, which could only accommodate 60 trainees at a time, the benefit of building on the knowledge of those who had been training in and participated in the first stage of the SADA process, as well as the need to ensure service delivery at the ODSP offices was not compromised.

87While the Union challenged Mr. Matthews’ evidence as speculative, it did not lead any evidence to contradict his.

88While I agree with the Union that direct evidence is always preferable, I am mindful this matter is being heard and determined pursuant to Article 22.16, and the parties have agreed to truncate the evidence to expedite the resolution of this grievance.

89Accordingly, in this instance, in the absence of evidence to the contrary, I find Mr. Matthews’ evidence to be the best evidence regarding the considerations that informed the selection of the distribution method. His senior management position, and inclusion in the communications regarding the planning of the initiative to address the SADA backlog positioned him well to draw informed conclusions.

90As a result, I find that the capacity of the training facility limited the numbers of individuals who could be trained at one time to 50-60. I also note this is consistent with Ms. Fredette’s e-mail to Mr. Matthews requesting volunteers, but indicating the capacity to train was limited to 50/60.

91While Mr. Matthews conceded that running another employee group of 60 for three days of training would address the limitation of the training facilities, he was clear it would not address the negative impact on services to ODSP clients that would result from taking that many caseworkers away for three days each.

92Nor was there any evidence to contradict the validity of Mr. Matthews concern in that regard. While it was clear that components of the Third OT Opportunity required significant training for some employees, it was not apparent from the detail provided that this was a valid comparator.

93Accordingly, I find that retaining enough workers so as to not compromise service delivery for ODSP clients was another operational requirement the Employer was entitled to meet before it had to turn its mind to developing a method for distributing the resulting overtime.

94I find therefore, for the reasons set out above, that the Employer was entitled to limit the second overtime opportunity to 50-60 ODSP caseworkers.

Requirement for Fair and Equitable Distribution

95This then gives rise to the issue of the method for the selection of those 50-60 ODSP employees. While the Union suggested that the initial 4 hours of training could be added to the requisite three-day training for the next stage of the SADA process for those who had not initially volunteered, this does not compensate for the lack of experience actually performing the work in the initial stage of the process.

96While experience processing the applications at the first stage may not have been critical to the ability to process the applications at the next stage, I am not of the view it should attract no weight. Rather, I find there is some merit in the Employer’s characterization of this Second OT Opportunity as, in effect, a continuation of the first.

97In any event, as pointed out by the Employer, there is no suggestion the decision to rely on those already familiar with the prior steps in the process to create a smaller pool from which to draw was made for an improper purpose or in bad faith.

98Rather, I find that on its face, having familiarity with the first step in the SADA process is a rational and fair consideration in determining how the candidate pool would be created.

99However, I am not persuaded the decision regarding who would receive the three days of training is a stand-alone decision which falls under the Management Rights clause, rather than UN 8.2.1. In this instance, unlike the facts in Santangelo et al, supra, the decision regarding who to train is so integral to the distribution of the overtime, that I have difficulty finding that aspect of the decision-making can be distinguished in a meaningful way.

100In any event, given the pressing operational need to get the backlog of applications processed more quickly, I am not persuaded the Employer ought to have, in effect, started over again with a large pool. This not only had the potential to result in a more protracted process, but could also result in two separate training tracks to accommodate those who did not volunteer for the initial training but chose to do so at that later point. Nor, once again, would it compensate for the lack of experience from actually performing the work.

101Further, while the Union submitted that making eligibility for the Second Overtime Opportunity available to all ODSP caseworkers would have been fairer and more equitable, I am not persuaded that UN 8.2.1. requires the Employer to use the method that is most fair and equitable from the employees’ perspective. This is particularly the case when the most fair and equitable method creates logistical hurdles which potentially undermine the Employer’s ability to meet its operational needs in a timely manner. Rather UN 8.2.1 simply requires the method selected to be fair and equitable, and is clear the method of distribution must first allow for the Employer’s operational needs to be met.

102Finally, in this instance, having identified the pool of employees eligible to proceed through the requisite training to perform the next stage of the SADA process, I find the method of random selection to identify those who would actually have the opportunity to perform the overtime work addressed the need to distribute the work fairly and equitably.

103Accordingly, having carefully considered the evidence and submission of the parties, I am not persuaded the Employer violated UN 8.2.1.

104In closing, I wish to thank both Counsel for their collaborative efforts in expediting this process.

DETERMINATION:

105The Grievance is dismissed.