HomeMy WebLinkAboutHannikainen 95-05-20IN THE MATTER OF AN ARBITRATION
B E T W E E N:
THE ONTARIO COUNCIL OF REGENTS FOR THE
COLLEGES OF APPLIED ARTS & TECHNOLOGY
(NORTHERN COLLEGE)
Employer
- AND -
THE ONTARIO PUBLIC SERVICE EMPLOYEES
(FOR ACADEMIC EMPLOYEES) UNION,
LOCAL 653
Union
AND IN THE MATTER OF A GRIEVANCE OF
MR. AARNE HANNIKAINEN
Grievor
BEFORE:
Prof. C. Gordon Simmons, Chairperson
Mr. David Cameletti, Employer Nominee
Mr. John McManus, Union Nominee
APPEARANCES FOR THE EMPLOYER:
Mr. Guy Giorno, Counsel
Mr. Ray Guindon, Executive Dean of Programs
APPEARANCES FOR THE UNION:
Mr. Nick Coleman, Counsel
Mr. Aarne Hannikainen, Grievor (first 20 minutes of the hearing)
Mr. John Camp, Chief Steward (first 20 minutes of the hearing)
A hearing into this matter was held in Toronto, Ontario on September 29, 1992.
The grievance dated September 12, 1991 is fairly detailed and reads as follows:
GRIEVANCE STEP I
DURING THE PAST ACADEMIC YEAR, I HAD
REQUESTED THAT THE HUMAN RESOURCES
DEPARTMENT REVIEW MY TEACHING CERTIFICATES
AS I BELIEVED THAT THEY WERE COMPARABLE TO
THE CONFEDERATION COLLEGE IN-SERVICE
TEACHER TRAINING PROGRAM, AND WOULD THUS
CORRECTLY PLACE ME IN STEP 16. THE COLLEGE
REFUSED TO DO SO AND TOLD ME TO REFER THE
MATTER TO THE JOINT EDUCATIONAL
QUALIFICATIONS SUBCOMMITTEE. THIS I DID.
HOWEVER, I RECEIVED NOTICE FROM THE COLLEGE
THAT THEY REQUIRED VERIFICATION THAT I WAS
ENROLLED IN MODULE TWO OF THE
CONFEDERATION COLLEGE PROGRAM, OR THAT MY
SALARY WOULD BE REDUCED. AS JEQS HAD NOT
MET, AND TO AVOID LOSING ENTITLED SALARY I
ENROLLED IN MODULE TWO.
JEQS HAS NOT HEARD MY CASE, AND IT IS MY
UNDERSTANDING THAT THE MANAGEMENT SIDE
REFUSES TO MEET TO RESOLVE THE CASES BEFORE IT.
AS I UNDERSTAND, I AM ENTITLED TO DISPUTE
RESOLUTION UNDER THE COLLEGES COLLECTIVE
BARGAINING ACT, AND THEREFORE WISH TO PURSUE
RESOLUTION UNDER THE GRIEVANCE PROCEDURES
(ARTICLE 11).
I GRIEVE THAT THE COLLEGE IS IN VIOLATION
OF ARTICLE 3, AND APPENDIX 1-SALARY SCHEDULES,
BUT NOT EXCLUDING OTHER PROVISIONS OF THE
COLLECTIVE AGREEMENT OR COLLEGE POLICY
WHICH MAY HAVE BEEN VIOLATED.
AS RESOLUTION OF THE GRIEVANCE, I WOULD
ACCEPT, ALTHOUGH NOT EXCLUDING OTHER
SETTLEMENT OFFERS;
1) THAT THE COLLEGE PROPERLY RECOGNIZE
MY TEACHING CERTIFICATES AS BEING COMPARABLE
TO THE IN-SERVICE TEACHER TRAINING PROGRAM
AND PLACE ME IN THE STEP 16 SALARY MAXIMA
SCHEDULE.
2) THAT THE COLLEGE REIMBURSE ME FOR THE
TUITION FEES THAT I HAVE PAID TO
CONFEDERATION COLLEGE, INTEREST ADDED.
3) THAT IF THE COLLEGE HAS TREATED ME
DIFFERENTLY WITH RESPECT TO THE ATTAINMENT
OF SALARY MAXIMUMS BASED UPON HOLDING
TEACHING CERTIFICATION OR OTHER CRITERIA
THAT I BE PAID ALL MONIES OWING ME FROM THE
TIME I MAY HAVE BECOME DISADVANTAGED BY
SUCH UNEQUAL TREATMENT. THIS RETROACTIVE
PAYMENT IS TO INCLUDE PAYMENT OF INTEREST
THAT COULD HAVE BEEN EARNED ON THE MONIES
OWING ME.
IN SCHEDULING THE STEP 1 MEETING, I
REQUEST THAT THE MEETING BE HELD IN
HAILEYBURY, AND CONSIDERATION BE GIVEN TO
THE AVAILABILITY OF BOTH MYSELF AND JOHN
CAMP, CHIEF STEWARD LOCAL 653.
AS YOU ARE AWARE, MY DUTIES ON THE
NEGOTIATING TEAM REQUIRE THAT I BE IN
TORONTO MOST WEEKS ON A SCHEDULED BASIS. TO
FACILITATE ARRANGEMENT OF A DATE FOR THE
MEETING WOULD YOU KINDLY CALL ME AT THE
DELTA CHELSEA 416 595 1975, OR AT MY HOME 705 672
5611.
On November 26, 1991 the grievor filed a complaint against the Employer before the
Ontario Labour Relations Board (O.L.R.B.) claiming,, a violation of a
inter alia
Memorandum of Settlement dated November 28, 1985 wherein the grievor would have
first opportunity to supervise any extra-curricular athletic activities at the Haileybury
campus on a voluntary basis. The Employer denied any violation of the Memorandum
of Settlement and the matter was scheduled to be heard on June 3, 1992 before the
O.L.R.B. The complainant, Mr. Hannikainen, and his representative sought an
adjournment of the June 3 hearing which was opposed by the Employer. However, at
the June 3 hearing an adjournment was granted with the parties being required to
provide additional hearing dates on or before June 15, 1992 when they would next be
available to attend a continued hearing in this matter. On June 12, 1992 the Employer
informed the O.L.R.B. that September 11, 29, 30; and October 6 and 8 were available for
the parties to continue with this matter. (One must assume the Employer and the
Union had agreed on such dates because the Employer's correspondence with the Board
indicated such dates were available for both parties.) Accordingly, by letter dated
JuneÊ16 from the Registrar of the O.L.R.B., the parties were informed that September
11, 29, and 30 were the dates on which the matter would continue commencing at 9:30
a.m. on those dates.
Meanwhile, Mr. Hannikainen's instant grievance was proceeding along its path
to arbitration. On February 13, 1992 the Employer tentatively confirmed with the Union
that both parties were available to attend a hearing on June 15, 1992. On February 24,
1992 the grievor advised that June 15, 1992 was not suitable for him to attend the
grievance arbitration hearing. In May the Union and the Employer agreed to
reschedule the grievance hearing for September 29, 1992 and on May 21 the Employer
advised its witnesses that the arbitration would be held on that date.
As stated earlier, the parties appe ared before the O.L.R.B. on June 3, 1992 (file
number 2866-91-U) whereupon the parties agreed to advise the Registrar of future dates
on which they would be available. On JuneÊ12 the O.L.R.B. was advised of the dates
when the parties would be available for continuation of that hearing and on June 16 the
O.L.R.B. confirmed three dates including September 29 for the hearing. In addition to
notifying the parties of the September 29 hearing, the O.L.R.B. also listed the grievor as
an addressee who was sent a copy of that notice. It will be seen later in this decision
that such notice to the grievor becomes important to the determination of the instant
grievance.
The Chair of the instant Arbitration Board, in late 1991, had given a number of
dates to the parties when he would be available to attend arbitration hearings involving
the parties in 1992. September 29 was one such date. On June 23, 1992 the Chair was
requested to chair the Arbitration Board in the instant matter and was advised that the
date of September 29, 1992 had been selected by the parties when this matter was
scheduled to be heard. On June 24 the chair confirmed that the arbitration hearing
would be held on September 29, 1992.
Nothing further transpired until September 9, 1992 when Counsel for the Union
wrote to the Director of Human Resources for the Employer to request an adjournment
of the arbitration hearing scheduled for September 29. Mr. Coleman's letter, Counsel
for the Union, reads as follows:
Re: OPSEU, Local 653 (Hannikainen) and Northern
College of Applied Arts & Technology
OPSEU File No. 91E294
Date of Hearing: September 29, 1992
We act for the Union and Mr. Hannikainen in this matter.
I am writing to request an adjournment of the hearing
scheduled for September 29, 1992. Mr. Hannikainen is
required to attend at the Ontario Labour Relations Board on
that date and will not be available for the hearing of his
grievance. In the circumstances, I propose that the
arbitration hearing be adjourned on consent, to be
rescheduled at a mutually available time.
Please advise me of the College's position with respect to
adjournment at your earliest convenience.
Mr. Giorno, Counsel for the Employer, responded by letter via facsimile dated
SeptemberÊ14 to Mr.ÊColeman wherein he states:
Re: Northern College ats O.P.S.E.U. Local 653
(Hannikainen Step 16 Grievance)
O.P.S.E.U. File No. 91E924
We are solicitors for the College, and have been asked
to respond to your September 9, 1992, letter addressed to Mr.
Westerman. You should be advised that the current
Executive Director of Human Resources is Peter MacLean,
not Mr. Westerman.
The College has asked me to inform you that,
unfortunately, it cannot accede to your request for an
adjournment. Witnesses, some from outside Timmins, and
counsel have arranged their schedules to accommodate the
scheduled arbitration date, and have been holding it for
some time. An adjournment not only would inconvenience
a number of people, but also trigger additional costs for both
the College and O.P.S.E.U.
I look forward to seeing you on September 29.
Counsel for the parties held a telephone conversation on the morning of
September 17, 1992 wherein Counsel for the Employer reaffirmed the Employer's
position that it would not agree to an adjournment and concluded, via facsimile
communication shortly after the telephone conversation, with the following three
paragraphs:
It is clear that both the College and the Union knew
about, and had agreed to, the scheduling of the
both
grievance arbitration hearing and the O.L.R.B. proceeding
for September 29, 1992. The College has always been
prepared to go ahead with both proceedings. Apparently
the union was prepared to proceed with both hearings, too,
until it changed its position at the eleventh hour.
O.P.S.E.U. Local 653 must appreciate that labour
relations proceedings are serious, expensive undertakings
which the College views as extremely important. They
cannot be commenced and then adjourned from date to date
without regard for the consequences. In June, July, August
and early September, parties were prepared to proceed
both
with scheduled hearings on September 29, 1992. The
both
College is not now prepared to consent to an adjournment.
If the union is not prepared to proceed with the
arbitration hearing on September 29, 1992, the College will
ask that the grievance be dismissed. If O.P.S.E.U. Local 653
does not intend to proceed on that date, it might wish to
consider withdrawing the grievance in order to avoid the
unnecessary expense of travelling to Timmins.
To finally round out the written correspondence in this matter, Counsel for the
Union contacted the Chair by letter via facsimile on September 22 setting out the
Union's position with respect to having Mr. Hannikainen attend the O.L.R.B. hearing
and informing the Chair that the grievor would be unable to attend the hearing
scheduled for September 29 in Timmins. Mr. Coleman's letter reads:
Re: OPSEU, Local 653 (Hannikainen) and Northern
College -- OPSEU File No. 91E294
Date of Hearing: September 29, 1992
We have been retained by the Union to represent
Mr.ÊHannikainen in this matter.
I am writing to advise you that the Union is seeking an
adjournment of the hearing scheduled for September 29,
1992 in Timmins. Unfortunately, Mr. Hannikainen is also
scheduled to appear as a witness and the Union advisor in a
proceeding between the Union and the College at the
Ontario Labour Relations Board (OLRB No. 2866-91-U) on
SeptemberÊ29, 1992. In the circumstances, we are seeking
an adjournment of the grievance hearing to a date mutually
convenient to the parties and the members of the board of
arbitration.
The background to the scheduling problems for
Mr.ÊHannikainen are as follows. The proposed hearing date
of September 29, 1992 with respect to Mr.ÊHannikainen's
grievance was agreed to by the Union and the College in or
about May, 1992. The proceeding at the Labour Relations
Board commenced on June 3, 1992 and the parties agreed to
provide available dates for the continuation of that
proceeding. Counsel for the Union in that matter advised
the Board about available dates, including September 29,
1992 without consulting with Mr.ÊHannikainen. On or
about June 16, 1992 the Board confirmed continuation dates
of September 11, 29 and 30, 1992.
Mr. Hannikainen is required to attend the Board
proceedings as a witness and as the Union advisor to
counsel. Mr. Hannikainen is required to give evidence on
September 29 and 30, 1992 and a summons has been issued
to compel his attendance. A copy of the summons is
enclosed for your information.
The notice of hearing with respect to Mr. Hannikainen's
grievance was issued on or about June 24, 1992 and received
by the Union on or about June 29, 1992. At that time, the
continuation dates, including September 29, 1992 had
already been confirmed by the Labour Relations Board. The
file was referred to this firm in late August, 1992.
We advised the College by letter dated September 9, 1992
that we would be seeking an adjournment of the hearing
scheduled for September 29, 1992 because Mr.ÊHannikainen
was required to attend at the Ontario Labour Relations
Board. Counsel to the College, Mr. Guy Giorno, responded
by letter dated September 14, 1992 refusing to consent to the
adjournment. Following a telephone conversation between
counsel, Mr. Giorno confirmed by correspondence dated
September 17, 1992 that the College would not consent to
adjourning the hearing of Mr.ÊHannikainen's grievance.
If necessary, we will pursue the request for an adjournment
at the commencement of the hearing in Timmins on
September 29, 1992. We intend to rely on the decisions in
Shoppers Meat Markets Ltd. (1984), 16 L.A.C. (3d) 184 and
Levy's Bread (1976), 13 L.A.C. (2d) 243 in support of our
request for the adjournment. We will also take the position
that there should be no order of costs against the Union with
respect to the adjournment in view of the circumstances
giving rise to the request and our early notice to the College
of the request. See, Shoppers Meat Markets Ltd., pp. 187 -
189. However, if we are required to attend to argue for the
adjournment in Timmins, we will take the position that the
College should pay costs for refusing to consent to the
Union's reasonable request.
I look forward to Mr. Giorno's response to these submissions
to determine if the question of adjournment can be resolved
prior to September 29, 1992.
It will be seen in the third main paragraph of Mr. Coleman's letter that a summons was
issued by the O.L.R.B. to ensure Mr. Hannikainen's attendance at the O.L.R.B. hearings
scheduled for September 29 and 30. A copy of the Summons to Witness was attached to
the facsimile sent to the Chair and is dated September 17, 1992.
Fortunately, the three Board members scheduled for the September 29 hearing in
the instant matter were also in attendance at another arbitration hearing in Sudbury on
September 22. Mr.ÊColeman's letter and copy of the Summons were faxed to the Chair
in Sudbury who, upon learning of this development, contacted Messrs. Coleman and
Giorno to gain their acceptance that the hearing in this matter be convened in Toronto
rather than in Timmins. Naturally, the grievor was expected to be in Toronto on
September 29 and both counsels are located in Toronto. Further, without the consent of
both parties agreeing to an adjournment, this Board had no alternative but to convene a
hearing to hear submissions concerning the request for adjournment as well as
submissions why no adjournment should be granted. The Employer consented to
relocation to Toronto from Timmins because of the unusual circumstances surrounding
this hearing but pointed out that in doing so it was to be understood that it was without
prejudice to its position that all Local 653 grievances should be heard where the college
is located. The Union likewise consented to have the hearing in Toronto. It was further
agreed that the hearing in Toronto would convene at 9 a.m. in order for the parties to
make submissions concerning the request for adjournment prior to the time scheduled
for commencement of the O.L.R.B. hearing. It will be noted on the face of the cover of
this decision that the grievor and Mr. Camp, Chief Steward, were in attendance for
approximately twenty minutes when they had to leave the hearing to attend the
proceedings at the O.L.R.B.
The Union submitted at the September 29 hearing that it seeks to have the matter
adjourned until a convenient mutually acceptable time is available for all parties. The
grievor is scheduled to be an advisor at the O.L.R.B. hearing and is required to appear
as a witness both on September 29 and 30. Counsel for the Union submitted that the
grievor is entitled to a fair hearing and if he is not granted such hearing he is denied his
rights to present his case. Further, there is no prejudice to the Employer because it is
not a dismissal situation. Further, the Union gave the Employer advance notice and
any expenses incurred by the Employer could have been avoided by consent to an
adjournment.
The Employer submitted that it vigorously opposes any adjournment in this case.
Furthermore, counsel argues there is prejudice to the Employer because the grievance
seeks salary and interest payments and the longer this matter is delayed the greater the
financial exposure becomes to the Employer. Further, the grievor claims that he
enrolled in a program under protest and he seeks reimbursement for the cost of that
program. That is to say, the grievor seeks reimbursement plus interest and retroactive
pay which are all cost items to the Employer.
At the conclusion of the hearing the Board ruled that it would reserve on
rendering its decision. The issue is whether or not this Board ought to grant an
adjournment to the proceedings to await a mutually acceptable hearing date. As can be
seen from the comments and correspondence that has been reproduced above, the
Employer takes the position that the Board ought not adjourn the matter but to dismiss
the grievance; whereas, the Union takes the position that to deny the adjournment and
dismiss the grievance would be a denial of the grievor's rights to a hearing into his
grievance.
Counsel referred the Board to a number of prior decisions. They are:
Re Schere - G.C. Ltd. and Canadian Food and Allied Workers'
(1976), 11 L.A.C. (2d) 379 (O'Shea).
Union, Local 175
Re Levy's Bread and Bakery & Confectionary Workers'
(1976), 13 L.A.C. (2d) 243
International Union, Local 181
(Weatherill).
Re Canada Post Corporation and Letter Carriers Union of Canada
(1987), 32 L.A.C. (3d) 86 (P.C. Picher).
Re Flamboro Downs Holdings Ltd. and Teamsters Local 879
(1979), 24 O.R. (2d) 400 (Ont. Div. Ct.), Robins J.
Re Cambrian College and Ontario Public Service Employees
(May 25, 1989), unreported arbitration award of
Union
D.H.ÊKates.
Re Shoppers Meat Markets Ltd. (Metro Provisions) and United
Food and Commercial Workers International Union, Local 633
(1984), 16 L.A.C. (3d) 184 (Solomatenko).
Re Hawker Siddeley Canada Inc., Orenda Division and
(1989), 7
International Association of Machinists, Lodge 1922
L.A.C. (4th) 172 (Gorsky).
Re Northern College and Ontario Public Service Employees Union
(August 31, 1987), unreported arbitration award of K.M.
Burkett (Hannikainen grievance).
Re Northern College and Ontario Public Service Employees Union
(January 17, 1991), unreported arbitration award of M.G.
Mitchnick (Hannikainen grievance).
Re Northern College and Ontario Public Service Employees Union
(June 6, 1991), unreported arbitration award of K.M. Burkett
(Hannikainen grievance).
Re Northern College and Ontario Public Service Employees Union
(June 26, 1991), unreported arbitration award of
M.ÊTeplitksy (Hannikainen grievance).
Re Northern College and Ontario Public Service Employees Union
(August 27, 1991), unreported arbitration award of M.
Teplitsky (Hannikainen grievance).
Re Northern College and Ontario Public Service Employees Union
(March 11, 1992), unreported arbitration award of M.
Teplitsky (no grievor's name in award but Counsel informed
the Board that it is a grievance of Mr.ÊHannikainen).
Re Northern College and Ontario Public Service Employees Union
(April 7, 1992), unreported arbitration award of
M.ÊTeplitsky (Hannikainen grievance).
The Employer alleges that the grievor is trying to be the maste r of these
proceedings. He knew by mid-June when the O.L.R.B. sent out its notices, including a
copy of the notice to him, that the hearing for that body was September 29 and he
likewise knew that this arbitration hearing was to proceed on that same day. However,
nothing was done until September 9 when Counsel for the Union wrote the Employer
seeking an adjournment. The Employer points out that there had been no request for
an adjournment before the O.L.R.B. but that instead the only request for an
adjournment came before this Board of Arbitration. Accordingly, the Employer
maintains that the grievor planned to orchestrate these proceedings together with that
of the O.L.R.B. to his convenience. Counsel referred us to an earlier decision where
Arbitrator Teplitsky commented on this point in his unreported decision dated April 7,
1992 wherein he stated:
Mr. Hannikainen's view is that he is the master of the
procedure which is to be utilized in any grievance in which
he is a party. For him this means an oral hearing in Timmins
or in Toronto. He holds this view regardless of the nature of
the issues in dispute and regardless of the cost.
He continued to write:
In the past I have attended along with the other
members of the Board and counsel in Timmins to adjudicate
grievances involving Mr. Hannikainen. In my experience
these grievances rarely raise any issue of controverted fact.
An oral hearing is essential whenever the facts are in
dispute. Credibility can only be determined after an
opportunity to cross-examine and re-examine witnesses is
afforded the parties.
Where no issue of controverted fact exists, an oral
hearing is not essential. Arguments of law can be made in
writing or by telephone conference. Much business of the
courts today is conducted without the requirement of
counsel and the parties attending before the Court.
Arbitrator Teplitsky was of the view that he along with the rest of the Board and
counsel ought not be compelled to travel to Timmins unless there were controverted
facts in issue. To that extent, he sought to have counsel receive instructions with respect
to the facts surrounding the matter. However, the grievor failed to advise his counsel
and therefore the arbitrator was unable to determine whether there were controverted
facts in issue. As a consequence, the arbitrator adjourned the hearing and
sine die
directed the grievor to advise his counsel within fifteen days failing which the Board
would consider whether or not the grievance was to be dismissed.
The Employer referred the Board to several other arbitration cases involving the
grievor for the purpose of demonstrating that the grievor is very familiar with and
knowledgeable of the grievance arbitration process. Arbitrator Teplitsky was again
chairing an arbitration board involving the grievor, decision dated 27 August 1991,
wherein the parties consented to proceeding by way of a telephone conference call. The
facts in that case were the Employer had posted a seniority list which was defaced by an
unknown person or persons by writing beside the grievor's name a comment that the
Board decided not to repeat. When the grievor learned of this occurrence he promptly
advised the Employer and the defaced list was removed and inserted in a file.
Subsequently, a professor returning from a leave asked for a copy of the seniority list
and through some inadvertence of an office person a copy of the defaced list was given
out which came to the attention of the grievor. The grievor claimed that he was being
harassed, intimidated, embarrassed, or otherwise being compelled to undergo
discomfort because of this. As a consequence, to avoid further problems, the Employer
retains originals in a secure file and only posts a copy. If the copy is defaced it is
discarded and new copies are made from the originals. While the office person was
found to be negligent there was not any lack of in the Employer and the Board
bona fides
concluded that a declaration of a contractual breach of the Collective Agreement was
not warranted and the grievance was dismissed.
In yet another arbitration in which Mr. Teplitsky acted as chairman, dated
26ÊJune 1991, the Board gave oral reasons at the hearing and dismissed the grievance.
It would appear that the matter in dispute involved a missing nameplate. Apparently, a
Dr. Toor was unable to obtain an office nameplate whereupon the Dean asked the
grievor if he had the nameplate whereupon the grievor denied having same. Later, in
the main reception area Dr. Toor was asking about his nameplate whereupon once
again the grievor overheard the Dean say that he thought the grievor had his
nameplate. Because this time the statement was made in front of others the grievor
concluded that the Dean deliberately intended that the grievor was somehow involved
in mischief which the grievor alleged intended to denigrate and harass him and
therefore he filed his grievance against the Dean. As stated above, the grievance was
dismissed by oral reasons at the hearing.
In another grievance involving the grievor chaired by Mr. Burkett dated June 6,
1991, the grievor filed a grievance claiming that the Employer had made a deduction of
$102.82 from his salary cheque. The Board in that case dismissed the grievance based
on application of the .
De Minimus Rule
In yet another arbitration chaired by Mr. Mitchnick, dated January 17, 1991, the
grievor claimed loss of income when the Employer switched from paying salaries twice
monthly to bi-weekly. The grievor alleged that this change resulted in the grievor's
annual salary being reduced by $803.88. The grievor received the money but there was
a delay of eight days in receiving that $803.88 which formed the basis of the grievance.
The Mitchnick Board dismissed the grievance claiming that such a delay was within a
reasonable period.
There is yet another arbitration involving the grievor, again Arbitrator Burkett
chairing the hearing which is dated December 31, 1987. The Board confirmed its oral
ruling dismissing the grievance by giving written reasons in an eight-page award.
We agree with Counsel for the Employer that Mr. Hannikainen has experience in
filing grievances and proceeding to arbitration. As stated earlier, some arbitrators have
commented with respect to the grievor attempting to be master of the
grievance/arbitration process. That, however, with respect, does not lessen in any way
the grievor's right to have his grievances arbitrated before a board of arbitration.
However, the submissions of the Employer to the effect that the grievor has a definite
plan with respect to controlling the arbitration process assumes much force. If indeed,
the grievor has set out on some plan or design to control the arbitration process, at the
expense of the parties and others involved, one must take these circumstances into
consideration.
Requests for adjournments have gone both ways. In the case ()
Levy's Bread supra
the Employer sought an adjournment when its counsel, through inadvertence,
committed himself to attendance before the provincial court on a matter which had
been marked preemptory. The Board in that case granted the adjournment over the
vigorous objection of the Union. The Board went on in that case to note that there was
no suggestion that an adjournment would prejudice the parties because the matter to be
resolved was one of interpretation. While the Union was seeking general damages as
well as interest, those matters, according to the Board, could be dealt with when the
matter was heard on its merits. Similarly, in the case () the
Shoppers Meat Market supra
hearing was scheduled for Wednesday, September 12, 1984 at which the Union
attended and was prepared to proceed. However, the son of the president of the
company appeared who was not an employee of the company to inform the Board that
his father had been hospitalized on Saturday and was in intensive care on the day of the
hearing. In considering whether or not to grant an adjournment the Board canvassed
the issue of natural justice which is always an important issue in these proceedings.
The Board in stated at p. 186:
Shoppers
The crucial question is whether or not, in accordance with
basic principles of natural justice, each party has been
granted the full opportunity to present its case and
participate in a hearing. The importance of that principle
has been highlighted in a recent unreported decision of the
Divisional Court of Ontario,
Re Her Majesty the Queen in right
of Ontario and Ontario Public Service Employees' Union et al.
) (April 13,
(Ministry of Correctional Services and Taffinder
1984). In that case, counsel for the employer had
inadvertently made an error as to the date of the hearing.
The Grievance Settlement Board's refusal to grant an
adjournment therein was overturned by the Divisional Court
which, although acknowledging that the board was master
of its own procedure, expressed concern 'with the general
principle that an opportunity to be heard must be given to
the party to any proceeding' and this principle was
incorporated in the
Crown Employees Collective Bargaining
, R.S.O. 1980, c. 108. The import of that principle for the
Act
case now before me is not in any manner lessened by the fact
that it is not expressly incorporated into either the collective
agreement or the
Labour Relations Act.
In the result the hearing was adjourned to a later date.
As stated earlier, there have been situations where adjournments have not been
granted. In () the issue before the Board involved a discharge
Canada Post supra
grievance. The hearing was to continue on June 18, 1987 but the Employer, by way of
telegram, informed the Board that all of its counsel and potential witnesses were
involved in dealing with strike activity that was then under way. Therefore, the
Employer informed the arbitrator that it would be unable to attend. In citing the
Divisional Court in case () it was noted that the court had
Flamboro Downs Holding supra
upheld the Ontario Labour Relations Board decision to refuse to grant an adjournment
of a scheduled hearing to a date convenient to the newly-retained counsel for the
Employer. As a consequence, there was no adjournment and the arbitrator went on to
order the reinstatement of the grievor with full compensation.
In the case () the application for judicial review
Flamboro Downs Holdings supra
was a claim of refusal or denial of natural justice when the Board refused to grant an
adjournment. Mr. Justice Robins speaking for the court stated at pages 404 and 405 as
follows:
Clearly, an administrative tribunal such as the Labour
Relations Board is entitled to determine its own practices
and procedures. Whether in a given case an adjournment
should or should not be granted is a matter to be determined
by the Board charged as it is with the responsibility of
administering a comprehensive statute regulating labour
relations. In the administration of that statute the Board is
required to make many determinations of both fact and of
law and to exercise its discretion in a variety of situations. In
the case of a request for adjournment, it is manifestly in the
best position to decide whether, having regard to the nature
of the substantive application before it, the adjournment
should be granted or whether the interests of the employer,
the employees or the union who, as the case may be, oppose
the adjournment should prevail over the party seeking it. As
a matter of jurisdiction, it is for the Board to decide whether
it should adjourn proceedings before it and in what
circumstances.
This is not to say that there cannot be situations in
which a refusal to grant an adjournment might amount to a
denial of natural justice. There are circumstances in which
that might be so: see, for example,
R. v. Ontario Labour
[1970] 3 O.R.
Relations Board, Ex p. Nick Masney Hotels Ltd.,
461, 13 D.L.R. (3d) 289 (C.A.);
Re Gill Lumber Chipman (1973)
Ltd. and United Brotherhood of Carpenters & Joiners of America,
(1973), 42 D.L.R. (3d) 271, 7 N.B.R. (2d) 41.
Local Union 2142
It is necessary to examine the facts of each case to determine
if the tribunal acted, as it must, in a fair and reasonable way.
It must, of course, comply with the provisions of the
, 1971 (Ont.), c. 47, and afford
Statutory Powers Procedure Act
the parties the opportunity to be present and be represented,
if they wish, by counsel. But a party who has adequate
notice of the hearing does not have a right to an
adjournment and is not entitled to insist on one for his
convenience or the convenience of his representative. It is
for the Board to determine whether to adjourn on the basis
of the obvious desirability of speedy and expeditious
proceedings in labour relations matters, the background of
the particular case, the issues involved, the reason for the
request and other like factors.
We are all agreed that it cannot be said in the
circumstances of this case that the Board conducted itself in
any arbitrary fashion or denied natural justice. The Board,
as its decision makes plain, considered the submissions for
adjournment and decided, for reasons already referred to,
not to accede to the request. ...
In light of all of the foregoing, the Board is torn between two competing interests. The
Employer urges the Board not to grant the adjournment whereas the opposite view is
taken by the Union. Given all of the circumstances surrounding this issue, there are
certain factors which jump out for consideration by this Board. We acknowledge that
the grievor is well versed in labour relations matters and in the processing of
grievances. He has filed a number of grievances within the past couple of years, some
of which, according to the tenor of the arbitration decisions, are of questionable merit.
Further, the grievor was informed in June that the instant proceedings were to take
place on September 29, 1992. However, he elected, for whatever reason, to forego
notifying the Union of this conflict until shortly before Union Counsel wrote to the
Employer on September 9 requesting an adjournment. Exchanges between counsel
were quite vigorous until September 17, 1992 when the Employer absolutely refused to
any adjournment taking place. Furthermore, as Employer Counsel pointed out, it had
been the intention of the parties to proceed with both matters on the same day. While it
is true that Union Counsel who appeared at the hearing received the file late in August,
we do not doubt the veracity of the Employer's Counsel in this regard.
What is perhaps most complexing is that following the conversation between
both counsel on the morning of September 17, 1992 there was a summons issued by the
O.L.R.B. for the attendance by the grievor at the O.L.R.B. hearing scheduled for
September 29 and 30, 1992. This is somewhat complexing because it will be
remembered that the O.L.R.B. hearing also took place on September 11, 1992 but there
was no summons issued concerning the grievor's attendance on that date. Having
regard to this matter in and of itself, the Employer's assertion that the grievor wants to
be master of this Board's proceedings takes on considerable force. It becomes extremely
suspicious when the grievor is summonsed to the O.L.R.B. hearing for the 29 and 30
th th
on the same day that the Employer had flatly refused to adjourn this arbitration hearing
and this is especially so when the grievor's experience in these matters is weighed.
Added to this complexity regarding the issuance of the summons by the O.L.R.B.
we are reminded of Mr. Justice Robins comments in () wherein he states
Flamboro supra
that a party or his representative is not entitled to adjournment for his convenience or
the convenience of his representative. If the grievor had acted more expeditiously in
requesting the adjournment, as indeed he had regarding the June 15 hearing date,
th
other considerations would apply. However, given all of the circumstances
surrounding this matter we are driven to the inescapable conclusion that the grievor
sought to be master of this proceeding for his convenience. When it appeared that his
efforts to have this proceeding adjourned on September 29 were not succeeding, a
summons to attend the O.L.R.B. hearing was conveniently issued to compel his
attendance there. However, as stated earlier, no such summons was issued to require
his attendance at the O.L.R.B. hearing on September 11. The only reasonable conclusion
that one can arrive at is that the grievor orchestrated the issuance of the summons to
attend the O.L.R.B. hearing on September 29 (and 30) in order to circumvent having
th th
to attend the instant hearing on the 29. We must conclude therefore that the grievor
th
sought an adjournment of the instant proceeding for his convenience.
Furthermore, we were informed that an earlier hearing in the instant situation
had been agreed to by the parties when this dispute could have been heard. The Board
was informed that the Union and the Employer had confirmed by way of memorandum
from the Employer dated February 13, 1992 that the parties were available to attend an
arbitration hearing on June 15. However, on February 24 the grievor sent a fax to the
President and Chief Steward of the Union stating that JuneÊ15 was not suitable to
attend a hearing in this matter. No reasons were given in the fax why June 15 was not
suitable nor were reasons given at the hearing on September 29.
After carefully considering the submissions of the parties the Board concludes
that the Employer's position that the grievance not be adjourned ought to be accepted.
We are convinced that the grievor knew exactly what he was doing when he sought an
adjournment of this hearing for September 29, 1992. It was simply not convenient for
him to attend. When it became apparent that his request for adjournment was not
going to succeed a summons for his attendance before the O.L.R.B. was issued. Further,
the grievor's experience in processing grievances was not denied. His communication
to the Union President and Chief Steward on February 24 that June 15 was not
th th
suitable to attend a hearing confirms that he was fully apprised of unfolding events
relating to the progress of his grievance. Further, we were provided with a copy of the
notice of the September 11, 29, and 30 O.L.R.B. hearings issued by the Registrar, Ms.
T.A. Inniss in June, 1992 which copied the grievor as one of the persons to whom the
notice was addressed. Both the instant hearing and the O.L.R.B. hearing for September
29 were established in June, 1992 yet a request for adjournment of the instant hearing
only came with Mr. Coleman's letter dated September 9. We repeat, the grievor decided
it would not be convenient to attend the instant hearing on September 29 and pursued a
course to effect that end. In these circumstances this Board adopts the Employer's
position that an adjournment ought not be granted.
Having denied the request for adjournment the Board has not been unmindful of
the rights that belong to any party for a reasonable and fair hearing. Indeed, such rights
have been foremost in our minds. However, we must conclude that in the
circumstances of this case such rights must be assessed in light of all the circumstances.
The adjournment request is denied and the grievance is dismissed.
Dated at Kingston, Ontario, this 20th day of May, 1993.
[--- Unable To Translate Box ---]
C. Gordon Simmons
Chairperson
"David Cameletti"
I concur/dissent[--- Unable To Translate Box ---]
David Cameletti
Employer Nominee
SEE ATTACHED
I concur/dissent[--- Unable To Translate Box ---]
John McManus
Union Nominee