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HomeMy WebLinkAbout1988-0813.Kowal.90-08-17 "~ ONTARIO EMPL Q Y~'$ DE LA COUflONNE CROWN EMPLOYEES DE L'ONTA RIO GRIEVANCE COMMISSION DE SETTLEMENT R~GLEMENT ~.~-- BOARD DES GRIEFS 180 DUNOAS STREET WEST, TORONTO, ONTARIO, MSG 1Z8- SUtTE 2100 TELEPHONE/T~'I~_PHONE 180, RUE DUNDAS OUEST. TORONTO, (ONTARIO) M5G 1Z8 - BUREAU 2100 (416) 598-0688 813/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Kowal) Grievo~ - and.- _ The Crown in Right of Ontario (Ministry of Health) Employer - and - R, Verity Vice-Chairperson M. Lyons Member F. Collict Member FOR THE P. Lukasiewicz GRIEVOR Counsel Gowling, Strathy &'Henderson Barristers & Solicitors FOR THE D.W. Brown EMPLOYER Law Officer Crown Law Office Civil Ministry of the Attorney General HEARING: July 4t 1990 INTERIM DECISION When the hearing in this matter reconvened at Kingston on July 4, 1990, Counsel for the employer moved for an adjournment of the scheduled hearing dates for July 4 at Kingston and July 5 and July 6 at Toronto. A previously scheduled hearing date. for April-23, 1990 had been adjourned on consent. However, the U~ion vigorously opposed any further adjournment. The panel proceeded to hear full submissions on the motion. After due consideration, the panel rejected the employer's motion for an adjournment giving oral reasons with written reasons to follow. The e~oloyer advanced essentially two grounds in support of the motion' 1. that on July 3, 1990 an application for judicial review for an Order of Prohibition against the panel had been-issued on behalf of the employer to be returnable before the Divisional Court of the Supreme Court of Ontario on July 6, 1990. 2. that Counsel for the employer in this matter, Mary Quick, was unavailable due to serious illness. tn addition, Mr. Brown expressed concern that the matter would proceed as a psychiatrist retained by the employer was then unavailable. The thrust of his argument was that, in the unique circumstances of this case, an adjournment pending judicial review would be appropriate. Mr. Brown did recognize some prejudice to the grievor if the matter -3- did not proceed as scheduled. He proposed that the employer would "consider" paying the griever a per diem rate during the 'period of adjournment. In opposing the motion, Counsel for the u'nion submitted eleven Exhibits being primarily an exchange of correspondence between Counsel, Messrs. Lukasiewicz and Zarudny, during the period January 29, 1990 and June 29, 1990. Mr. Lukasiewicz indicated that he made it clear as early as January 30, 1990, that in the event the Ministry brought an application for prohibition the grievance hearings should proceed and that the union would "object 'to and resist any delay" in placing the matter before either the Court or the arbi. tration panel. The union referred the panel to the following authorities: Re Cedarvale Tree Services Ltd. and Labourers' International Union of North America, Local 183 (t971), 22 D.L.R. (3d) 40 (ONT. C.A.); Re Board..of Education for City of London and Federation of Women .Teachers' Associations of Ontario et al. (1984), 16 LoA.C. (3d) 366 (Burkett); Re Steinberg Inc. and Commercial Workers Union, Local 486 (1984), 16 L.A.C. (3d) 171 (Fraser); Re Niagara Television Ltd. and National Association of Broadcast Employees and Technicians (1973), 5 L.A.C. (2d) 75 (O'Shea); Re Canada Post Corp. and letter Carriers Union of Canada (I987), 32 L.A.C. (3d) (P.e. ?icher); Regina v. Ontario Labour Relations Board Ex parte Nick Masney Hotels Ltd. (1970), 30.R. 46t {ONT. By way of background, the following facts are relevant. The grievor, Donald Kowal, was suspended without pay from his emp. loyment as a staff pharmacist at Kingst.on Psychiatric Hospital on April 6, 1988, for serious professional misconduct involving a switch of medications in the pharmacy.' On July 26, 1988, following an 'investigation, his employment was terminated. Subsequently, on August 3, 1988, he filed a grievance alleging dismissal without just cause. Hearings were held on April 26 and 28, 1989, in Toronto and October 18 and ?9, 1989, in Kingston. By October 19, 1989, the employer had completed the introduction of its case in chief. However, hearing dates previously scheduled for October 23, 24, 25 and 26, 1989, were taken up by the employer's allegation of a reasonable apprehension of bias against all members of the panel. The employer's motion that the panel disqualify itself was dismissed in an interim decision dated December 21, 1989. On January 29, 1990, the employer a§reed to continuation dates on the merits; namely, April 23, 1990, and July 4, 5 and 6, 1990. However, the employer put the Grievance Settlement Board on notice that it anticipated commencing an application for prohibition arising from the interim decision. In May, 1990, as a result of letters from Messrs. Zaru.dny and Lukasiewicz to Grievance Settlement Board Registrars Joan Shirtow, it became .apparent that there were serious differences between the parties as to whether the hearings should proceed on the scheduled July dates. On its own initiative, the panel met with the parties in an attempt to resolve the impasse. The meeting with the parties was held at the Grievance-Settlement Board on May 29, 1990. At that time, the employers sole reason for suggesting that the July dates be adjourned was due to the unavailability of Counsel Mary Quick due to illness. After hearing submissions, the panel advised the parties by fa× "that the hearings would proceed as scheduled". However, shortly thereafter, Grievance Settlement Board Registrar Shirlow received letters from two separate Counsel with the Ministry of Attorney General questioning the propriety of the proceedings that took place on May 29, 1990. On June 25, 1990, Registrar Shirlow .advised the parties that the May 29, 1990 proceeding was an informal meeting rather than a hearing and that it was the right of counsel to re-argue the adjournment mot.~on, if deemed appropriate, when ~he hearing reconvened in Kingston on July 4~ 1990. The panel does not dispute the legitimacy of either ground of the employer's motion for adjournment. Obviously, the Board has the discretion to grant the adjournment on either ground. It is indeed unfortunate that' Mary Quick, the Employer's Counsel of Record, has experienced a serious illness. Although Mr. Brown did not stress Ms. Quick's unavailability (a matter which had been fully canvassed by Mr. Zarudny on May 29~ 1990), the issue was one of the grounds for adjournment advanced by Mr. Brown and it was considered lby the Board. Clearly, illness on the part of counsel is a legitimate reason for requesting an adjournment and in normal circumstances the Board would have had no hesitation in granting such a request. Unfortunately, Ms. Quick continues to undergo treatment for her illness and there is no certainty as to the date of her return to work. Counsel for the Union provided the Board with a list of three (3} Grievance Settlement Board cases in which Ms. Qui'ck had been replaced as counsel for the employer. In our opinion, the employer had ample notice and time to retain and instruct alternate counsel to allow the hearing in this matter to continue on July 4, 1990. ~n addition, Mr. Brown,' in reply to a question from the Chair, indicated to the Board that h'e was adequately prepared to proceed as counsel for the employer on the merits. Accordingly, the.Board declined to grant an adjournment on ground that counsel for the employer, Mary Quick, was unavailable due to serious illness. The main thrust of the employer's request for an adjournment was the pending application for judicial review. In Re Cedarvale Tree Services Ltd. and Labourers' International Union of North America, Local 183, supra, the Ontario Court of Appeal was required to consider, in the matter of an application for certification before the Ontario Labour Relations Board, whether an arbitration proceeding should be stopped where a Bo'ard is served with an application for j~dicial review. Speaking for a unanimous court, Mr. Justice Arnup states at p. 49: Zt is clear to me that under the Labour Relations' 'Act the Board is master of its own house not only as to all questions of fact and law falling within the ambit of the jurisdiction conferred upon it by the Act, but with respect to all 'questions of procedure when acting within that jurisdiction. In my view, the only rule which should be stated by the Court (if it be a rule at all) is that the Board should, where its jurisdiction is questioned, adopt such procedure as appears to it to be just and convenient in the particular circumstances of the case before i t .... -8- and at p 49-50 Justice Arnup states: "It is also clear law that such a tribunal is not required to bring its proceedings to a halt merely because it has been served with a notice of motion for an order of certiorari or prohibition. It is entitled, if it thinks fit, to carry its pending proceedings forward until such time as an order of the court has actually been made prohibiting its further activity or quashing some order already made by which it assumed jurisdiction .... " Like the Ontario Labour Relations Board, the Grievance Settlement 8oard is a Statutory tribunal. -Under s. 20 (8) of the Crown Employees collective Bargaining'Act, the G.S.B. is given broad powers to determine its prac~tice and procedure. S. 20 (8) re~ds: "The Grievance Settlement Board shall determine its own practice and procedure but shall give full opportunity to the parties to any proceedings to present their evidence and to make their submissions, and the Grievance Settlement Board may, subject to the approval of the Lieutenant Governor in Council, make regulations governing its practice and procedure and the exercise of its powers and prescribing such forms as are considered advisable. J' This is, of course, a discharge case. As indicated previ'ously -9- the grievor was suspended in April, 1988, for reasons of serious professional misconduct. That misconduct is not in dispute. However, the panel has concerns about the excessive delay in bringing this matter to a conclusion. Indeed the status of the grievor's employment relationship remains unresolved for a period now in excess of two years. Criminal charges against the grievor were disposed of on February 27, 1989. On May 10, 1990, a disciplinary hearing before the Discipline Committee of the Ontario College of Pharmacists 'imposed a one year licence' suspension against the grievor for professional misconduct, but suspended ~he penalty on the following terms and conditions: That Mr. Kowal continue to be treated by a psychiatrist until such time as the psychiatrist deems treatment unnecessary; 2. That Mr. Kowal ensure~that his treating psychiatrist' report to the Registrar of the Ontario College of ?harmacists, as the Registrar may request. The report is to include, but not be restricted to, Mr. ~<owal's attendance at therapy and his compliance with prescribed medication regimen; 3. In the event that Mr. Kowal doe~ not resume pharmacy practice by April 5, 1991, he must successfully pass the oral and written portions of the Pharmacy Practice Examine of the Ontario College of Pharmacists. Although technically free to practice pharmacy in Ontario, Mr. Kowal has been unsuccessful in obtaining employment. The grievor has exhausted all entitlement to U.t.C. benefits. We were advised that he will be required to make a decision on the vesting of pension benefits on attaining the age of 45 years, which will occur on November 5, 1990. tn our opinion, there would be no real prejudice to the employer if this matter were to procee~ as scheduled. Indeed, any possible prejudice to the employer is of a speculative nature when compared with the potential' prejudice to the union and to the grievor in particular in granting this motion. ~n these particular circumstances, on a balancing of interest between the parties, the employer's motion must be denied. DATED AT Bra6tford, Ontario, this '17t~ay of Augustl990. R.L. Verity, Q.C. Vice-Chairperson M..,;~o n s ~lembec? F. Co]~ct - ~ember