HomeMy WebLinkAboutMerricks 04-01-10
IN THE MATTER OF AN ARBITRATION UNDER SECTION
48 OF THE LABOUR RELATIONS ACT, 1995 (as amended)
BETWEEN
Ontario Public Service Employees Union ("the union")
AND
Teranet ("the employer")
And in the matter of the grievance of Chis top her Merricks, ("the
grievor") who challenges the manner in which his employment
was terminated.
BEFORE: R.O. MacDowell (Sole Arbitrator)
APPEARAN CE S:
For the Union: Mary Anne Kuntz (Counsel)
F or the Employer: Julie 0 'Donnell (Counsel)
This interim award is based upon representations received, by
"conference call", on January 7,2004.
INTERIM AWARD
Background
This arbitration proceeding arises from the grievance of Christopher Merricks
("the grievor") who challenges the terminatio n of his employment. The parties are agreed
that I have been properly appointed under the terms of the collective agreement, and that
I have jurisdiction to hear and determine the matters in dispute between them. This
decision records the interim ruling made following a "conference call" on January 7,
2004.
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As I understand it, the grievor was employed by Teranet, in 2003, on a
"temporary" basis. He was expected to work for a number of weeks or months, at which
point his employment would come to an end. He was not hired as a "regular" or
"permanent" employee. Nor, as I understand it, was there any undertaking to provide him
with continuing, long term employment.
The grievor asserts tInt his temporary employment with Teranet was terminated
before it should have been, and that there was no proper basis for such termination. The
grievor asserts that as a result of this untimely termination, he is entitled to monetary
compensation, which, I am told, could conceivably amount to as much as $3000. I say
"conceivably" because, of course, it may turn out that the grievor is entitled to some
lesser amount, or (as the employer claims) to nothing at all.
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The employer replies that there is no iòundation for the grievor's complaint. In
the employer's submission, the company was entitled to reassess its needs from time to
time, and to dispense with superfluous temporary workers. Moreover, a temporary
employee like the grievor, has only a limited rights under the relevant collective
agreement. As the employer sees it, the grievor's rights are not much different than they
would be at common law: he can be terminated with notice, or pay in lieu of notice.
In the employer's submission, there was no guarantee of continuing employmen,
and the company was entitled to terminate a "temporary" employee" prior to the
originally anticipated expiry date of his engagement. The employer was not required to
keep on temporary workers who were no longer needed or wanted.
The employer asserts, in particular, that it is not obliged to establish that it had
"just cause"to terminate the grievor's employment - as it might have to do for a
permanent employees covered by the collective agreement. On the contrary, all that the
employer was required to do in the grievor's case, was give the grievor the appropriate
notice (or pay in lieu of notice), as prescribed under the Employment Standards Act.
Which the employer says it has done.
In summary then, the employer asserts that it has satisfied any legal obligatioŒ
that it owed to the grievor, and it is not obliged to show that it had "just cause" for his
termination. However, in the alternative, the employer asserts that there was in fact 'just
cause" for termination - especially bearing in mind the contingent nature of the grievor's
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employment. So the employer submits that, however one looks at the situation, the
grievance is without merit and should be dismissed.
Mr. Merrick's grievaoce was filed in July 2003, and was subsequently submitted
to arbitration. There followed a process of consultation between the parties, to choose an
arbitrator and establish a mutually satisfactory hearing date. As a result of those
discussions, I was selected to adjudicate the dispute, and a hearing date was fixed, (on the
agreement of the parties), for Januarv 16. 2004.
On September 16,2003, the parties were provided with a formal :notice of
hearing", confirming the agreed- upon hearing date, and finalizing the hearing
arrangements (location, start time etc.). A copy of that notice was sent to the parties, and,
I am told, the grievor was also advised of the hearing arrangements. There does not seem
to be any dispute that the grievor knew the date on which his complaint was to be heard,
and he also knew that his presence at the hearing would be necessary, in order for the
union to successfully advance his claim.
In early December 2003, the grievor contacted the union, by email, to advise that
he was in England. The grievor requested that the union pay whatever transportation
costs were associated with his return to Toronto, so that he could be present for the
hearing of his case. The union replied that it ~s neither required nor inclined to absorb
the grievor's travel costs; and that if he was interested in pursuing his claim against
Teranet, it was his responsibility to make his way back to Ontario for that purpose.
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The fact that tœ grievor was in England came as a surprise to both the union and
employer, because the grievor had not notified them of his departure from the
jurisdiction. Nor was there any discussion about what effect that departure might have on
his outstanding complaint - which, as I have already indicated, was scheduled for hearing
on January 16,2004.
The bargaining parties do not know when the grievor left Ontario, or why. Nor do
they know whether he has permanently relocated to England, or is merely there on a visit.
And it is not entirely clear when the grievor will be returning to Ontario - although there
is some indication that he may be back in March 2004.
Be that as it may, in a further e-mail dated December 29,2004, the grievor
advised counsel for the union that he would not be attending the hearing on January 16,
2004, and that the earliest that he could possibly attend a hearing was in March.
However, since this email was sent during the Christmas holiday period, it was not
actually received by counsel for the union, until January 5,2004 - the week before the
scheduled hearing. Nevertheless, in light of this communication, the union requests that
the January 16th hearing be adjourned to another date, to be fixed in consultation with
counsel, and at a time when it would be more convenient for the grievor to attend.
The union acknowledges that it is seeking an adjournment on short notice, and
that it is unable to say that there are compelling reasons for derailing the hearing - apart
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from the grievor's personal convenience. The union is unable to say, for example, that the
grievor is enmeshed in circumstances beyond his control, which prevent his attending the
hearing. The only issues that the grievor has raised, are his own cost and convenience.
However, the union indicates that is prepared to pick up the costs of the cancelled
arbitration date, and will cooperate with employer counsel to find a mutually satisfactory
alternative. The union has also sought to contact the grievor to seek confirmation that, if
an alternative hearing date is set, the grievor will attend on that new date. However, as of
the date of the conference call, there had been no further communication from the grievor
about his availability.
The employer opposes the request to adjourn the scheduled hearing date - a date
which, the employer notes, was agreed upon by the parties, and has been fixed and
known to the grievor for several months.
The employer points out that both parties have engaged counsel and have
prepared for the case, on the assumption that the matter would proceed on January 16,
2004. The employer also points out that the grievor was well aware ofthe scheduled
hearing date; yet he left the jurisdiction without any notice to the union or the employer.
Nor did the grievor provide eitœr of the parties with timely notice that he would not be
attending the January 16th hearing. And as a result of his conduct, both parties have
incurred a variety of costs in respect of the hearing that the grievor now seeks to abort.
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In the employer's submission, the institutional parties are not obliged to shift the
hearing date merely to suit the grievor's convenience; and, in any event, he has shown no
bona fide reason for doing so - or for not notifying the parties earlier, so as to minimize
the cost and inconvenience. Or to put the matter another way: while the grievor has
launched litigation and made various allegations (which the employer says are spurious),
he has shown little interest in actually pursuing those claims. Rather, he seems to expect
that the process will be driven exclusively by his own concerns and convenience.
On the other hand, the employer concedes that if the union absorbs the arbitration
and hearing room cancellation charges (which the union is prepared to do), there is no
real prejudice to the employer if the matter is put over until a later date. The grievor's
claim is crystallized, there is no continuing liability, and, while it is in the parties'
"institutional interest" to resolve outstanding grievances in a timely way, (which is why
there are typically time limits in the collective agreement), the delay associated with an
adjournment will not prejudice either of them in the preparation or presentation of their
case.
Ruling
As I have indicated above: this arbitration proceeding is being conducted under
the terms of the collective agreerrent and section 48 of the Labour Relations Act. Section
48(12) of the Act reads, reads, in part, as follows:
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An arbitrator or the chair of a board of arbitration, as the case may be,
has power...
(c) to fix dates for the commencement and continuation of
hearings;
(i) to make interim orders concerning procedural matters.
As will be seen, an arbitrator has the power to control the way in which litigation
unfolds before him. He has the authority to fix hearing dates, and he may grant
adjournments where he considers it appropriate to do so. And, in my view, it is also open
to the arbitrator to grant an adjournment, "on terms" - which is to say, make the granting
of an adjournment contingent upon compliance with reasonable conditions, framed to
facilitate the expeditious and economical resolution of the dispute.
Having considered the representations of the parties, I am not prepared to
conclude that the grievor has abandoned his claim. Clearly he has not. Nor is it
appropriate to dismiss the grievance, at this stage. Rather, it seems to me that the
appropriate balance of interests is to grant the adjournment, on the terms set out below.
No doubt it would have been more prudent (and more courteous) for the grievor
to have advised the parties of his plans. It would also have been advisable for him to have
given a more timely notice of his unwillingness (I am unable, on the information before
me, to say "inability") to attend on the scheduled hearing date. And it is not difficult to
understand the parties irritation when that scheduled hearing is unexpectedly de-railed.
After all, the date has been fixed for months; and while the union has carriage of the case,
the complaint is very much rooted in Mr. Merricks' personal concerns. No one suggests
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that there are broad collective bargaining principles involved. So one might have
expected the grievor to have paid more attention to his outstanding claim (assuming that
he is still serious about pursuing it).
I also agree with counsel for the employer that the parties are not obliged to
schedule the case to suit the grievor's convenience. Because quite apart from the
grievor's modest monetary demand, there are also institutional interests at stake here -
including the costs of the litigation process, the parties' continuing collective bargaining
relationship, and the ir shared need to clear up issues between them in an expeditious and
economical way. (In this regard see the Preamble to the Labour Relations Act, which
reiterates that one of the purposes of the statute under which this proceeding arises, is to
"promote the expeditious resolution of work place disputes"). The parties are not obliged
to hold a complaint in "suspended animation" until the grievor chooses to pursue it.
Nevertheless, where as here, the union is prepared to absorb the "costs thrown
away", and no one is really prejudiced by a few more months delay, I see no reason why
the adjournment should not be granted. Accordingly, I make the following ruling:
1. The hearing currently scheduled for January 16, 2004, is hereby
adjourned to a new date to be fixed in consultation with counsel.
2. The costs of the adjournment (including the costs of this ruling) will
be born by the union.
3. The parties are directed to make all reasonable efforts to schedule a
new hearing date, before June 30, 2004 (or such later date as they may agree
upon).
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4. The new hearing date will be "peremptory" - which is to say, it will
not be adjourned again without the parties agreement or sufficient cause, and
if the grievor fails to attend the scheduled hearing, his grievance will be
dismissed.
5. The employer will be saved harmless from any liability arising from
the additional delay caused by the adjournment (which matter can be
addressed in the event that the union is able to establish some liability on the
employer's part).
6. The grievor is directed to provide to the union and the employer
with the address and telephone number where he may be reached fir the
purpose of communicating in respect of this proceeding.
7. When the new hearing date is set, the grievor must be provided with
a copy of the new notice of hearing. It shall be sufficient service upon the
grievor if the notice is sent to the address that he provides under item 6
above.
8. Following receipt of the hearing notice, the grievor is directed to
undertake to the union and to the employer, in writing, that he will appear at
the hearing; and if such undertaking is not received at least 35 days prior to
the scheduled date, the hearing date will be caocelled and the grievance may
be deemed to have been abandoned.
In accordance with the agreement of the parties, I will remain seized in the event
that there is any difficulty in implementing the above-noted ruling. That said, if it would
facilitate the efficient and expeditious resolution of the case, the parties are, of course,
free to agree to have the merits of the matter put before another arbitrator.
DATED AT TORONTO THIS 10TH DAY OF JANUARY 2004
" R.O. MacDowell //
RO. MacDowell (Sole Arbitrator)
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