HomeMy WebLinkAboutMcCabe 95-09-2094F007 ST LAWRENCE VS MCCABE
IN THE MATTER OF AN ARBITRATION
BETWEEN:
ONTARIO COUNCIL OF REGENTS FOR COLLEGES OF APPLIED ARTS AND
TECHNOLOGY IN THE FORM OF ST. LAWRENCE COLLEGE
(hereinafter called the "College")
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(FOR ACADEMIC EMPLOYEES)
(hereinafter called the "Union")
GRIEVANCE OF M. McCABE
(hereinafter called the "Grievor")
BOARD OF ARBITRATION: Richard H. McLaren, C.Arb.
Brian Switzman, Union Nominee
R.J. Gallivan, College Nominee
COUNSEL FOR THE COLLEGE: Christopher G. Riggs, Q.C.
COUNSEL FOR THE UNION: David Jewitt
HEARINGS IN RELATION TO THIS MATTER TO DATE WERE HELD AT KINGSTON, ONTARIO, ON
NOVEMBER 14, 1994, APRIL 27, 1995 AND APRIL 28, 1995.
INTERIM RULING
At the conclusion of the Grievor's testimony at the close of the last day of proceedings in this matter on April 28,
1995 Union counsel sought to amend its course designations previously made under request of the Board. It was
indicated that the course of cross-examination of the Grievor suggested that an error in course selection by way of
being under a misapprehension may have been made unwittingly. A request was made to amend the designated
courses to included the EN 010-207 courses listed under the heading CORNWALL CAMPUS " CORE COURSES".
The Board in view of the oral commitments made by its chair person in the course of the discussions leading up to
the initial designations by the Union counsel is inclined to grant the request of the Union to amend the group of
designated courses to the extent defined in this ruling. It is therefore, order that the Union's election of designated
courses made on April 27, 1995 before the Board is to be expanded to include the EN 010-207 course. The Board
does so in order to ensure procedural fairness pursuant to its powers to define its own procedures and to ensure that
the obligations of natural justice are met.
At the outset of the proceedings for the hearing scheduled for September 21, 1995 counsel for the College will be
given the opportunity to undertake further cross-examination of the Grievor on her capabilities and qualifications to
teach the EN 010-207 course. There would follow a right of re-examination by counsel for the Grievor. Thereafter,
the Union will indicate whether it is calling further evidence in this matter or closing its case. From there on this
matter will proceed in the usual course of such arbitration proceedings.
DATED AT LONDON, ONTARIO THIS 20TH DAY OF SEPTEMBER, 1995
Richard H. McLaren, C.Arb.
I concur Brian Switzman,
Union Nominee
I dissent R.J. Gallivan,
Dissent Attached Employer Nominee
DISSENT OF R.J. GALLIVAN
I disagree. The Chair's ruling endorses a blatant abuse of process by the union. Article 27.08B of the collective
agreement could hardly be clearer - the positions against which the grievor's competence, skill and experience are
to be tested must be identified by the grievor at the beginning of the arbitration process and not, as the Chair
permits near, near its end.
The reasons for that requirement are self-evident to allow proper notice to be given to individual incumbents who
might be subjected to bumping should the grievor's claim succeed, and to allow the employer adequate opportunity
to explain and defend its decision.
The Chair's award meets neither of the tests he considers
appropriate - procedural fairness and natural justice - because those must apply to both parties to the collective
agreement) not
just to one.
R. J. Gallivan
September 20, 1995