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HomeMy WebLinkAboutUnion 92-04-07 BETWEEN: ONTARIO COUNCIL OF REGENTS FOR THE COLLEGES OF APPLIED ARTS AND TECHNOLOGY , (NORTHERN COLLEGE) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR ACADEMIC EMPLOYEES) - Grievance No. 91C883 BOARD MARTIN TEPLITSKY, Q.C. Chairman JON McMANUS Union Nominee DAVID CAMELETTI College Nominee On behalf of the College: Ann Burke, Counsel On behalf of the Union: Susan Philpott, Counsel REASONS FOR ADJOURNMENT OF HEARING SCHEDULED FOR APRIL 8, 1992 An arbitrator is required to observe the rules of natural justice. However, the particular procedures which are adopted to resolve grievances, so long as these meet the requirements of natural justice and the terms of the Collective Agreement, are entirely within the arbitrator's discretion -- a discretion which should only be exercised after hearing the submissions of the parties. 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. 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. 3 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. At my last attendance in Timmins some weeks ago for a grievance involving Mr. Hannikainen I advised counsel that I would require a preheating by telephone conference to ensure that there was a factual issue which required a full evidentiary hearing. I have, as yet, been unable to determine this point because Mr. Hannikainen has failed to instruct his counsel with respect to the facts surrounding his grievance. Until the facts he relies upon are known, it is impossible for the employer to advise whether it accepts these facts. Accordingly, it is not reasonable to attend in Timmins on Wednesday, April 8th to learn whether or not such attendance is really necessary. The hearing is adjourned sine die. Within 15 days counsel for Mr. Hannikainen shall advise counsel for the employer of the facts relied upon. A pre-hearing will then be scheduled and submissions received on the nature of the hearing required. Should Mr. Hannikainen continue to refuse to make this information 4 available, the Board will consider, after giving counsel an opportunity to make submissions, whether or not this grievance should be dismissed. DATED the 7th day of April, 1992. DISSENT ATTACHED JON MCMANUS Union Nominee DAVID CAMELETTI College Nominee IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO COUNCIL OF aEGENTS FOR THE COLLEGES OF APPLIED ARTS AND TECHNOLOGY (NORTHERN COLLEGE ) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION ( ACADEMIC EMPLOYEES ) FILE. 91C883 DISSENT: I have read %he majority award and find that with respect I must dissent from part of the findings of the rest of the board. There is much that the majority have stated in the award that is paramount importance to all those involved in the processing of such matters. The attempt to expedite the proceedings which would result in a considerable saving of costs is a very real concern to both parties and should begiven careful consideration. I part company from my colleagues at this point. My concern is ~hat had the parties agreed to this form of preheating prior to, and had in effect established such a procedure between themselves, ~he~'~ ~i%e grievor would know what to expect. The fact that there is no such agreement between the parties, nor can I find any past practice of such a procedure, gives me cause for concern. The board may say that it has the discretion to initiate and direct these proceedings, but what about the grievor. The legal issues raised by :he majority might 9ery well be correct but :o someone who has grieved and 'is now waiting their "day in court" to be suddenly informed that their case has been dismissed without an appearance or input, then they might well no: be impressed by the system a~ter waiting an undetermined length of :ime for the grievance to be processed. In many cases the grievors just want their day in court so to speak. If justice is after all to be done and seen to be done then surly the grievor has the right to attend at the grievance and have a say in what direction it is proceeding. Board Member John McManus.