GSB# 2013-1446; 2013-1574; 2013-1696
UNION# 2013-0999-0049; 2013-0999-0063; 2013-0999-0069
Appendix A attached
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 - Blydorp et al)
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
June 25, 2024 (final submission of documents on December 18, 2024)
Decision
1These grievances are part of a series regarding the operation of the Transition Exit Initiative, (“TEI”), under Appendix 46 of the Collective Agreement. The parties agreed that the current matters should be determined in accordance with Article 22.16 of the Collective Agreement with brief reasons for decision.
2The parties provided a Book of Documents with the grievances, Will Say Statements, where provided, and accompanying documents that set out the circumstances that relate to each grievor. Supplementary material was also provided by email. Generally, these grievances were filed by grievors1 who applied for but were not approved to receive enhanced benefits under the TEI.
Appendix 46
3The relevant provisions of Appendix 46 are set out below. I have included the initial provision and noted where it was subsequently amended:
All regular, regular part-time and flexible part-time employees will be eligible to apply to a Transition Exit Initiative (TEI).
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
4I 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.
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 for the elimination of 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 Employer properly exercised their discretion: 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.
5I have applied the principles established in earlier cases to the facts that pertain to the grievances before me and determined that the Employer properly exercised its discretion when it considered the grievors’ requests to exit under the TEI.
6I appreciate that the memo issued by the Secretary of Cabinet in 2018 renewed expectations that TEI would be granted more liberally, and that the grievors genuinely believe their applications could and should have been approved. TEI is clearly a significant benefit for retiring employees. Regrettably, as I have already determined, TEI is not a general retirement allowance provided to everyone who requests it.
7All the grievances before me are dismissed.
Dated at Toronto, Ontario, this 17th day of January 2025.
Appendix A – June 25, 2024
Union’s Book of Documents Wave II
Tab#
GSB#
Name
Ministry
Position Title
Location
51
2019-0879
Frayne, Mark
MCCSS
Youth Services Officer
Simcoe 660 Ireland Rd
55
2021-2859
Concannon, Dianne
MCCSS
Community Behavioural Consultant
London 600 Sanitorium Rd
56
2021-2994
Paton, April
MCCSS
Community Behavioural Consultant
London 600 Sanitorium Rd
93
2021-1545
Desserud, Sharon
MCCSS
Physiotherapist
London 600 Sanitorium Rd
94
2021-2791
Jones, Michael
MCCSS
Housekeeping Cleaner
London 600 Sanitorium Rd
53
2019-0848
Rehou, Touria
MCCSS
Income Support Specialist
MGS - Area Office
95
2021-2792
McIntosh, Rhona
MCCSS
Resident Support Assistant
London 600 Sanitorium Rd
97
2021-2794
Poag, Rolanda
MCCSS
Resident Support Assistant
London 600 Sanitorium Rd
98
2021-2857
Cluff, Lynne
MCCSS
Community Behavioural Consultant
London 600 Sanitorium Rd
107
2019-1779
Gothard, Steven
MCCSS
Caseworker
Thunder Bay 435 James St S
54
2019-0804
McDonald, Kathy
MCCSS
Caseworker
Barrie 34 Simcoe St
108
2020-0304
Lemon, Valerie
MCCSS
Office Administration Clerk
London 600 Sanitorium Rd
109
2020-0305
Blydorp, Antonia
MCCSS
Speech Therapist
London 600 Sanitorium Rd
112
2019-2079
Ciokan, Marie
MCCSS
Caseworker
Woodstock 480 Peel Street
58
2022-7486
England, Bruce
MCCSS
Youth Services Officer
Brampton 8500 McLaughlin Road
87
2021-0521
Walsh, Sharon
MPBSD
Customer Care Rep
Toronto 393 University Ave
96
2021-2793
Villeneuve, Cynthia
MCCSS
Registered Practical Nurse
London 600 Sanitorium Rd
101
2021-0946
Louks, Joanna
MTO
Transport Enforcement Officer
Burlington 4145 North Service Rd
116
2023-03001
Shearer, Philip
MCCSS
Community Behavioural Consultant
London 600 Sanitorium Rd
57
2021-3042
Doornekamp, Cindy
MCCSS
Parent Infant Therapist
London 600 Sanitorium Rd
104
2019-0394
Taylor, Lise
MTO
Corridor Management Officer
Sudbury 3767 Hwy 69 South