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HomeMy WebLinkAbout1988-0157.MacMillan.88-10-24. · .,...: : ONTARIO EMPLOY~-S OE (...A COUF{ONNE ~ CROWN EMPI.. 0 YEES DE L 'ON TA.RtO GRIEVANCE C,OMMISSION DE · SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO. M5G IZ8- SUITE2100 TELEPHONE/T~L~.PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z8 - BUREAU 2100 (416) 598-0688 157/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Brian MacMillan) Crievor and The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: G.J. Brandt Vice Chairperson F. Collom Member D. Walkinshaw Member For the Grievor: L. Rothstein Counsel Gowling & Henderson Barristers and Solicitors For the Employer: E. Hipfner Staff Relations Officer Staff Relations Section Management Board of Cabinet Hearing: August 9, 1988 DECISION This is a grievance of Brian MacMillan claiming that he has been denied his "vacation entitlement for 1987 due to my workers compensation injury." The relief requested is that the grievor be credited his vacation time for 1987. Prior to the hearing the Employer sought consent of the Union to an adjournment of the hearing pending the issuance of an award of another panel of the Board constituted to hear a grievance raising an issue which is, to all intents and purposes, identical to that before this panel.(Du~uis ~ Ministry of CorrectiQnal Service~ 1335/86 (Knopf). As the Union would not consent the Employer sought an order adjourning the proceedings. The issue on the merits is whether an employee who is'absent from work due to a compensable injury can be regarded as on a leave of absence with pay such that he or she continues to accumulate vacation credits within the meaning of Article 47.3 of the collective agreement. This identical issue has been before the Board in two other cases. One is Dupuis.(supra). The other is Sears (1!29/8~, M. Picher) where the Board, on May 24, 1988, decided the issue in favour of the grievor and declared that the grievor was entitled to the continued accrual of vacation credits and ordered the Employer to adjust the grievor's vacation credits accordingly. The Employer regards that decision to be wrong and has' refused to implement it. We were advised by counsel to the 3 Employer that It is considering but has not yet determined whether or not to seek judicial review of the Se~z~ award. In the meantime the issue reached the Board in Dupuis. Both the Dupuis and Sear% grievances were filed at approximately the same time. However the S~ur~ grievance was heard on December 3, - 1987 and the Du~q~ grievance was adjourned until May 11, 1988 as a result of surgery which the grievor required. When the DUDUiS grievance came before the Board the Employer sought to persuade the Board that the Sear~ case was wrongly decided and that it should not be followed. The Board, chaired by Ms. Knopf, -agreed to hear submissions as to why Sea~ was wrongly decided and the issue was. fully argued. However, a separate issue relatSng to pensions was not argued on May 11, 1988 and the Board adjourned until mid-November for the purposes of completing the case without issuing an award on the issue · which had been disposed of in the ~ears case. On May 20, 1988 (4 days prior to the release of the decision in Sears) the grievance before this panel was filed. The Employer, again taking the position that ~s was wrongly decided, denied the grievance. We were advised that a number of Ministries have refused to .follow Sears and that a number of grievances have been filed. In so far as the decision in DuD~is may have some bearing on the resolution of that issue, counsel for ~uD~is, on July 22, 1988, wrote Ms. Knopf to request her to issue her interim award on the vacation credits issue prior to reconvening the' Board to hear the 4 separate issue. Counsel for the Employer advised us that it concurs with this request and that it Will undertake to advise Ms. Knopf of its position in this regard. Counsel for the Employer, in speaking to the request for an adjournment in the instant matter, argued that, in the circumstances, it. would be better to adjourn this case pending the outcome of the pupg~ case. while she reserved the right to seek judicial review of that award, in the event that it confirmed Sears, counsel indicated to the Board that, in the event that the Employer chose not to seek jUdicial review of Dupuis, it would grant the relief claimed by the grievor before US. What is at issue is the application of the ruling of the Chairman of the Board in ~ake (1276/87 et al, Shime) where ,a panel of the Board was faced with an issue that had already been determined by a different panel. (Fra.ncis 1528/86, Brandt). In the following passage the Chairman addressed the question as to the circumstances in which the Board should hear issues which have already been determined. But more important is that the decision in the Fra~ci~ case is the decision of the Grievance Settlement Board.' In the private sector ad hoc boards of arbitration have a separate and d~stinct capacity to decide each case on its o~n merits. Recognizing that individual, but different, decisions on the same point or issue may create confusion, arbitrators have balanced the interests of individual decision making with predictability by generally adopting a policy that they will not depart from earlier decisions unless such decisions are manifestly in error. But the Grievance Settlement Board is one entity - it is not a series of separately constituted boards of arbitration. Under section 20(1) of The Crown ~ml~loyees Collective Bar~ainiDq Act there is "a Grievance Settlement Board" - that is, one Board. Under section 20(4) the Grievance Settlement Board may sit in two panels and under section 20(6) a decision of the majority of a panel is "the decision" of the Grievance Settlement Board. Thus each decision by a panel becomes a decision of the Board and in our opinion the standard of manifest error which is appropriate for the private sector is not appropriate for the Grievance Settlement Board. The Act does not give one panel the right to overrule another panel or to sit on appeal on the decisions of an earlier panel. Also, given the volume of cases that are currently administered by this Board, the continuous attempts to persuade one panel that another panel was in error only encourages a multiplicity of 'proceedings and arbitrator shopping which in turn creates undue administrative difficulties in handling the case load. We are mindful, however, that there is no provision for appeal and there are limits to Judicial review. While it is our view that the "manifest.error" theory is.too lax a standard, we recognize that there may be exceptional circumstances where an earlier decision of this board might be reviewed. At this point we are not prepared to delineate what constitutes exceptional circumstances and the fleshing out of that standard will be determined on a case by case basis. The onus will be on the party seeking review to establish exceptional circumstances." Counsel for the Employer argued that the position which it took in Dupuis did not encourage a "multiplicity of proceedings". Rather it was submitted that the issue, which had not 'yet been litigated, unlike Sears, has been before only one panel and the Employer has, in Dunged, merely sought an opportunity to have that decision reviewed by the Board itself, rather than by an application to the Divisional Court. It was argued that, if the Union is successful in P~uis, the grievor will suffer no prejudice since he will be credited with the vacation days that he has lost and will be entitled to use them. Counsel for the Union submitted that the Employer, by refusing to implement ~ears, and by seeking a reversal of that award in pupuis, is, in effect, engaging in a practice of forum shopping that was criticized by the Chairman in Blake. It was submitted that this panel should discourage that practice by proceeding with the instant grievance on the merits and ordering the relief ordered in Sears. Contrary to the submissions of counsel for the Employer it was argued that the grievor was prejudiced in so far as he was unable to take his vacation when he was entitled to it. It is our conclusion that this is an appropriate case for an adjournment. Very little is to be gained by proceeding to hear the case on its merits. In the event that Dupuis confirms Sears the matter will be resolved and the grievor will have his relief. In the event that Dupuis reaches a conclusion at variance with that in Sears, a decision of this panel one way or the other will not contribute anything to the resolution of the problem. Only the "score" will have changed - hard!y-a satisfactory outcome. The conflict in the decisions of the Board would have to be resolved by some other means, through judicial review, or negotiation. We do not regard our granting of an adjournment to be inconsistent with the reasoning .in ~lake. If we were to enter upon a consideration of the case on its merits there is the risk 7 that we would reach a conclusion at variance with either Pupuis or Sears, particularly if Dupuis does not confirm Sears. This is the very "horror story" which Blake seeks to avoid. To some extent the Board, in pupuis, has already started down that road. We see no reason why we should take that same journey while their remains the prospect that Sears will be confirmed by pupu~s. However, having ruled that the matter will adjourned we are persuaded that our order should be on the basis of certain terms and conditions. These terms are as follows: First, in the event that the Board, in puDui~, confirms g~3%~, the Employer, after DuDuis has been finally adjudicated and all avenues of appeal or review have been exhausted, implement the DuDuis/Sears awards in relation to the grievor herein and make the appropriate adjustment to his vacation credits. Counsel for the Employer indicated that, in this event, it would so act. This term merely incorporates that undertaking as a condition of granting the adjournment. Secondly, and having regard to the reasoning in Blake, we think it reasonable to require the Employer to compensate the grievor for the loss which he has suffered by reason of the delay occasioned by the Employer's decision'to challenge the result in Sears. Had the Employer followed Sears, as Blake suggests it should have, the grievor would have enjoyed his vacation entitlement. We believe that the reasoning in Blake supports the view that the parties should be discouraged from re- litigating an issue already decided. One way of doing that is to 8 attach some added cost to a party which chooses so to act and is again unsuccessful. Consequently, we direct that, as a condition of granting the adjournment, the Employer pay pre-judgment interest to the grievor in the event that Sears is confirmed. We acknowledg~ that this is unusual relief in the context of a claim concerning vacation credits. Accordingly we do not order the Employer to increase the grievor's vacation credits by an amount which would reflect that "interest" payment. Rather we direct that "interest" in the.form of a money payment be made to the grievor, such payment to be calculated on the basis of the monetary value of the vacation credits to which he would be entitled as a result of Sears/D~uis. We further direct that the period of time over which that "interest" by paid be that time from the date of this award to the date that the grievor's vacation credits are ultimately restored to him. We have not addressed the situation which would arise in the event that ~u~uis did not confirm Sears. Obviously in that event the entitlement of the grievor to the relief claimed would be in issue and no order could be made by us without hearing the case on its merits should it be brought back before us. The Board remains seised of jurisdiction in the matter of determining any issues which might arise between the parties respecting the implementation of the terms imposed in this award. 9 Dated at LONDON, Ont. this 24th day of October , G. J. Brandt, Vice Chairperso~ F. Collom, Member D: Walkinshaw,~ Member