HomeMy WebLinkAboutBell 03-06-11
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IN THE MATTER OF AN ARBITRATION
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BETWEEN:
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1'HE CEill-DREN'S Arb SOCIETY OF THE
DISTRICTS OF SUDBURY AND MANITOULIN
(THE EMPLOYER)
AND:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
LOCAL 668
(THE UNION)
AND IN THE MATTER OF THE GRIEVANCE OF JOANNE BELL
ARBITRATOR: HOWARD D. BROWN
\ APPEARANCES FOR THE EMPLOYER:
LEAH CLARKE, COUNSEL
APPEARANCES FOR THE UNION:
JIM GILBERT, GRIEVANCE OFFICER
HEARINGS IN TIllS MATTER WERE HELD AT SUDBURY ON JANUARY 11,
SEPTE:MBER 18, 19,2002 AND FEBRUARY 20,2003.
INTERIM AWARD
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,~- The grievance dated January 29,2001 is a claim that the Grievor's employment
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was unjustly terminated with a request for reinstatement and full redress. The Grievor was
I hired as an Emergency Service Worker on August 11, 1999, Her employment was;
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terminated by letter dated January 19,2001 in the fòllowmg tefnis.
The Children's .. La Société d'aide
Aid SocietY / ~~ àl'enf=
of the Districts of e des districts de
Sudbury and ~lmitoulin ' À Snaòury et de Mmritoll1in -
3'19 bouleTar'J 1:;.:t.'I3l1e Boulevard. Unit 3Itmi1.: 3. Sadb1lI7, ON P3A 1 W7 &05) SQõ.J1l3
~yjd B. ~ S.s.w~ ~lS.W- R.S.W. ,F~~::¡;i~Ur - ~W" Ipr;n,,;pal (ïO~) 5::.737:
. - . '1\~cr!t¿On (ï()j) 51:.-;];1
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Duv;d R..RhRrd. S..s.s~ ~.s.. T.s~
Dir=...... ~~ér'¡¡
JanUëary 19, 2001
Ms. Joanne aên
71 Wort'1ington Street
Ut:!e Cur.ent, Ont~rjo ,-
POP 1KO
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Oe.c:r M~. SElf:
It is with r=gret 'mê.t! must ~d'lisê you that your employment with this Agency is being
t6rminat~d E,ffectÏve'~,~day. Yourpay and benefits will ce.=se immeoi;:te:\y. ,, "
Iii spite cF training and ~e:-s~(ìG.1 co2c.~ing during your prcbation2rf pp-r.cd '::'S2n
Ern:íge:ncy Serviœs WOr't<ë: (Duty Cai!) .::r.a an ::,-ten.sioíi of your prcoetian, we
ccrÜiíl'Je to have serious ccnc=rns about your performance.
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Shcdd yeu have any quastioíls c:::r.:::.:mingyoL:r rights 2S a Union memb<::r, pleese
contac: M~. Unda Aho or Mr. Denis Beyer. '
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Pleêse ensure that you tum over to YClli supervisor ;:11 property belonging to the
Agency including office keys, identif1c::tion card, -and any dòci¡memation pertaining to
: c!ients. At your earliest opportunity, please submit any outstanding expense claims'
(eg.; mileage) and we \vil! reimbur~ yell promptly. ., , ..". --
'ife sincerelY regr.-=t this action has bee;; neœSS2rj. 'Ne had r,oped for a niore
sL!cce:ï.sful resolution. NevertileJe.ss, '¡ve:,visn you .every success ¡n~ì'aur futtJr;§
endeavours.
S¡nc.er~lv- . ~ -
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Lynda CuHain .
;"-sst. O¡i2ctor or Seriices
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c:~. ù: Riv;a('.:! -
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There is an issue as to whether the Grievor completed the probationary period
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provided under Article 12.02 of the collective agreement in effect between the parties as
follows: .
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ItO2Probation 1
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(a) A full time permanent employee will be considered to be on probation for a period,
of six (6) months worked (910 hours worked for regular part time permanent
employees). The employee shall have an interim performance assessment by her
immediate supervisor during the probationary period, no later than four (4)
months worked for full time employees (for regular part time employees, 605 ,
hours worked) after its commencement, to provide the employee with an
opportunity to adjust perceived shortcomings prior to the conclusion of the
probationary period. The employee will be notified in writing at least ,fourteen
(14) calendar days prior to the expiration of the probationary period if her
employment is to be terminated or extended.
(b) For the purposes of probation only for an emergency services employee, hours of
assigned standby duty shall be considered as hours worked.
(c) An employee will have no seniority rights during her probationary period. Upon
successful completion of the probationary period, the employee shall reCeive C
- seniority credit to her date of last hire.
(d) The termination of a probationary employee for reasons based on performance . (
and ability to do the job, including skills, suitability and availability shall not be \
subject to the grievance or arbitration procedure unless the probationary employee
is terminated for:
i) reasons which are arbitrary, discriminatory, or in bad faith;
ii) exercising a right lliîder this Agreement.
A cIaimby a probationary employee that she has been terminated c;ntrary to this clause
shall be treated as a grievance provided a written statement of such grievance is lodged by
the employee with the Executive Director at Step No.2 within seven (7) days after the
date that termination is effected.
(e) Where a Contract or Temporary employee becomes a pennanent employee i
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through the job posting procedure, with no break in service, such employee:
i) for purposes of the probationàry period, will be credited with one-half of
the. time served as a tempo~ empl()yee i!TIII1ediately prior to the
permanent hiring, up to a maximum of three (3) months, and;
ii) upon successful completion of the probationary period, will be credited '
with seniority back to the employee's date ofIast hire.
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The initial hearings in this matter dealt with the Employer's evidence relevant to
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the reasons for the termination of the Grievor's employment. Prior to the submission of
. evidence for the Grievor, Mr. Gilbert indicated that a motion for dismissal would be made,
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based on the evidence then subnuitedby the Employer. Without an agreenient'ofCounsei
to proceed with written submissions following that hearing in September, the Union
brought a preliminary motion at the hearing in February when I received submissions of
both parties on this issue and reserved decision without dealing with the merits of the
grIevance.
The Union's position is that the Employer failed to establish a case for termination
of the Grievor who could not be released as a probationary employee. It was submitted in
I.., support of this submission, that there was no evidence that the Grievor was told that her
job was in jeopardy and no evidence of a decision to extend her probationary period.
! Alternatively, that probationary period would have expired by December 25th, yet the
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Grievor worked in January 2002 in her job and therefore her employment was not
terminated before the end of her probationary period. The appraisals required under
Article 12.02 were not completed by her immediate supervisor nor was she given notice at
least fourteen days prior to the expiration of her probationary period which would have
been at best by D'ecember 11 th which was not done. The Employer did not meet all of the
conditions for the application of probation for the Grievor. There was no evidence to
show that the Grievor was advised that any failure to improve her performance would lead
to her termination and no reasonable effort was lIlade to look for other employment.
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Alternatively, it was submitted that even if all the evidence of the Employer is accepted, it
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does not meet the standard required to support the discharge of the Grievor.
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It was further submitted that the Union was not required to make an election to
argue the case on the basis of the evidence submitted without the right, ifunsuccessful in
those submissions, to present its evidence on the merits. A denial of such a motion by an
arbitrator does not create unfairness nor advantage to either party. It is its submission that
if its motion is denied then the Union would have the right to proceed with a final
argument on all of the issues. Reference was made to the following: Re Emergency
Health Services Commission and Ambulance Paramedics of British Columbia., 100
LA.C.(4th)267 (Ready) which was submitted as being applicable to the issue of the
Union's claim that the Employer had not met the "essential elements to establish a prima L
facie case to discipline the Grievor for non-culpable reasons". Re: Edith Cavell Private
Hospital (1982), 6 LA.C.(3d)229. (
As to the matter of a non-suit motion, reference was made to several decisions of
the Grievance Settlement Board in OPSEU (Faler) and the Crown in Right of Ontario
(B.B. Fisher, February 27, 1990); Re Gibson-Paterson (Barrett, July 27, 1994); Re
Vassallo (S. Kaufimui, August 14, 1996); Re Gallagher (M. Watters, January 9, 1996); Re
Holmes (M. Saltman, October 16, 2000). These decisions were cited in support of its
submission that the usual practice at this point of a hearing is that an election is not needed
in a non-suit motion. Further referrals were made to - Re General Tire Canada Inc. and
U.R.W.. L 53624 LA.C.(4th)234 (Blair); Re Seagull Pewter and Silversmiths and
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U.S.W.A. 76 LA.C.(4th) (Kydd) as to the discretion of the Arbitrator to establish his
procedure and to permit the Union to make the non-suit motion without being put to its
election. The Union submits that if its motion is denied by the Arbitrator, it should have a ,
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right to final argument on all of these 'issues Inclüding a submission that there was
insufficient evidence given by the Employer to meet the minimum requirements as set out
in the Edith Cavell decision. It was further submitted that an issue of an expansion of
grounds for the termination is not an issue in this case so that the calculations as to the
probation period or ability of the Employer to extend the probationary period is not
established~
It is the submission for the Employer that the Grievor was found unable to perform
the requirements of the position on which evidence it acted to terminate her employment
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as set out in the notice of termination and the response to the Step 2 Grievance Meeting.
( The Union having heard the Employer's evidence, can make a claim that no further
evidence is required and proceed to final argument which is a non-suit motion, the
prevailing practice in which procedure is to require an election to proceed on the basis of
the evidence heard or to call its evidence. The Union must choose not to call evidence
and proceed to argument or make a non-suit motion facing an election to call or not
evidence in support of its case. It is the Employer's position that the 'union èannot -:.
provide further evidence if such an election is made and the Arbitrator will be required to
consider the Union's motion of non-suit on the basis of the evidence given. If the Union is
allowed to provide evidence after an unsuccessful motion for non-suit, it would become a
routine procedure and grievances would be failed to be resolved on their merits.
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Further it was submitted that if the dismissal of the Grievor was found to be
improper, there are remaining issues of remedy as to damages and that reinstatement', , --
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would not be the appropriate remedy as it was deÚ~miined by the Employer that the
Grievor could not perform the requirements of the job so that it would not be proper to
return her to that position. If the argument of the Union is allowed then there is no risk
of loss if it is permitted on a dismissal of its motion, to present further evidence which
would prolong the hearing. It is its position that in a non-suit motion, the Union must
elect not to call evidence prior to proceeding with its argument on the motion. ' Reference
was made in its list of cases to the following: Re Canadian Labour Arbitration (Gorsky,
1994); Re The Law of Evidence in Canada (Soprinka); Re Ontario v. OPSEU (1990) O.J.
No. 635; Re Canada Games Park andCUPE L. 333663 L.AC.(4th)423 (Oakley); Re City
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of York and L 8406 LAC.(4th)347 (H.D. Brown); Re Canadian Airlines International
and CUPE (38 LA.C.)4160 (Burkett); Re Beelle Co. and U.S.W.A L 645739
LAc.(4th)370 (Kennedy); Re CBC and CUP£. 24 LAc. (4th)250 (Thome); Re City of
Toronto and CUPE. L 79 17 LAC. (3d) 273 (Kates).
The essential issue at this point of the proceeding is whether the Union's
submission that there is insufficIent evidence to support the Employer's position must be
made by a non-suit motion and whether that requires an election by the Union 'to make its
submissions on the basis of the evidence presented by the Employer or to proceed with its
evidence on the merits followed by final arguments of the parties. The description of a
non-suit motion is clearly set out in Canadian Labour Arbitration in (Gorsky): (
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"a motion for non-suit means that the second party is in
effect saying there is nothing here for me to answer...". If
( the Arbitrator allows the non-suit motion, the case is
finished and the first party loses. , '
At p. 12-2, it is stated that:
The prevailing practice at least in Ontario, is to require the
party bringing the non-suit motion to elect whether it
intends to call any evidence.. . In practical terms, the party
moving for a non-suit must elect to call no evidence. Only
then will the Arbitrator rule in a non-suit motion. If the
motion is not granted, the case will be decided on the basis
of the evidence adduced to that point which means entirely
on the basis of the evidence presented by the first party."
In the Law of Evidence in Canada (Sopinka) with reference to a trial process, it is
, stated that when the plaintiff's case is completed, a motion for non-'suit on the ground that
there is no evidence to give rise to a reasonable inference in the plaintiff's favour may be
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"In Ontario, the trial judge then must put defense counsel to
his or her election as to whether the defendant wishes to call
evidence."
and atp. 40 it is stated at 5.9 -
"The Supreme Court of British Columbia reasoning :ITom
the criminal practice on motions for directed verdicts
distinguishes between a no evidence motion and an
insufficient evidence motion. The Court held that for a true
no evidence motion, no election is required, but if the
motion alleges insufficient evidence, the applicant should
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invariably be put to his or her election. This hybrid
procedure has been codified by the British Columbia (
Supreme Court rules which permits the defendant to apply
to have an action dismissed on the ground that there is no
, evidence t() support the plaintiff scas~ without being put to -
his or her election to call evidence. If the defendant's "no (
evidence motion" is unsuccessful and Counsel makeS a ' ,
motion for dismissal on the basis of insufficient evidence,
Counsel would normally be required to elect whether he or
she will call evidence".
A motion of no evidence was involved in the Emergency Health Services award
which dealt with the criteria in the Edith Cavell decision as to non-culpable deficiency in
job performance which the Union here submitted are the minimum mandatory
requirements to establish the justification for termination of the Grievor. In that case, the
"no evidence" motion was granted in that the Arbitrator found there was no evidence on
at least one vital point of the Employer's case with regard to the test contained in the
Cavell decision and the Employer's case was "clearly lacking". Reference was'made in C
this form of motion that a judge is "not asked to weigh but simply to observe and if there (
is disagreement with that position then the parties should be allowed to call its evidence to
meet the Employer's case". In the Fisher award of the Grievance Settlement Board, it was
decided that where the Board gave no oral or written reasons in the event a motion for
non-suit was dismissed, there would not then be a tactical advantage to either party and it
would be in the interest of expedition and fairness in the hearing without the requirement
of the other party having to elect whether or not to call evidence. That procedure was
followed in the other referenced four cases and as set out by Arbitrator Saltman, "in
accordance with the Board's usual practice, the Union was allowed to argue its motion
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without being put to its election as to whether or not to call evidence". The judgment of
the Divisional Court on Apri126, 1990 however, is its direction at p.14:
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"Over the years there has been some variation in the
practice on non-suits turning on the question whether the
mover must concurrently elect to call no evidence. That has
now been resolved. A motion will not be entertained
without an election to call no evidence: see Bank of
Montreal v. Heran et al. (1986)54 O.R.(2d)757. There is
no reason to think that a motion for a non-suit before an
Administrative Tribunal should not conform with the law
that governs the Courts."
Having regard to that direction, the Grievance Settlement Board's practice is at least
inconsistent with the Court' s judgment and I find does not support the Union's submission
on this issue in this case. The difference in the application of non-suit motion rules in
other provinces have been referred to by Arbitrator Oakley as well as the particular
reference of arbitral procedure dealt with by Arbitrator Burkett in the recording of his oral
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decision at the at hearing at p. 163 of the Canadian Airlines award (supra). See also
Arbitrator Thome's award in Re C.B. C. which referred to the discretion of a tribunal to
not require the party moving for a non-suit to make an election at p. 252: "In considering
the question, when they have ultimately decided to put the moving party to his election,
they have done so for reasons of both practicality and fairness".
It is necessary for the Arbitrator to consider all of the evidence of the parties in
order to make a final and binding decision on the issues raised in a termination of
employment case without prejudice to either party in the dispute in that it can be
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concluded by the Arbitrator that the whole case has been presented including matters of
relief which can be determined. In the Gilbarco case referred to by Arbitrator Thorne, it
was stated that:
"The import of this decisions and those referred to more
particularly in the above award lies with the concern that the
trier of fact should not be required to make a decision on
the facts until the evidence has been completed. That could
only be determined if the mover of the non-suit motion is
satisfied to argue the case on the basis of the evidence
produced by either party and so declares its intention not to
put in evidence on its behalf to the tribunal."
That expresses the generally accepted practice of tribunals in Ontario which follows the
direction of the Divisional Court set out above and is consistent with the long-standing
practice in the application of motions for non-suit whereby the accepted procedure has I
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been for a Tribunal to reserve its decision and to put the party making the motion to its
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election to close its case or to present its evidence on the merits. A distinction made by
the Union of a different practice of a hybrid nature for an insufficient evidence motion and
that of a non-suit motion is not generally supported in the practice of Administrative
Tribunals in this province as an exception to the requirement to put a party to an election
to either argue on the basis of all the evidence then present~d and close its case or to
proceed with the mover's evidence as in the usual course of a hearing on the merits.
Arbitrator Kates stated:
"One significant purpose that is served by putting a party to
its election on a motion is to insulate the arbitrator's
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neutrality as the trier offacts ITom voicing an opinion on the
evidence until the case has been completed."
( , I am not persuaded to deviate from, the general p~ocedure on this issue, or to
exercise my discretion to vary this practice particularly where in this case, there are issues
of credibility of the witnesses and of reinstatement of the Grievor to her former position
with or without compensation. ,To meet and determine those ,specific issues, I must be
satisfied that all of the evidence on which these issues are to be determined has been
presented and on which submissions for the parties have been made. It is only when the
Arbitrator is satisfied that there has been a completion of the process that a final and
binding decision can be made as required by the Labour Relations Act.
Having regard to the submissions for the parties and for the foregoing reasons, I
find that the Union must be put to its election whether to call evidence or to close its case
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on the basis of the evidence of the Employer which has been received and to argue its
position on that basis or to submit its evidence on the merits with final submissions to
follow.
The hearing will be continued to complete the presentation of the parties in
accordance with the above direction.
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The Union is directed to advise Counsel for the Employer and the Arbitrator
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within three weeks of the date of this award whether it will elect to call evidence or close \
its case and make final argument.,
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DATED AT OAKVILLE TIllS 11 rn DAY OF JUNE, 2003
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HOWARD JtIBROWN, ARBITRATOR
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