HomeMy WebLinkAbout1988-1051.Hislop.89-11-06 ONTARIO EMPLOYES DE LA C'OUflONNE
~ .-., ~ CROWN EMPL 0¥£ES DE L'ON TAFIIO
~' GRIEVANCE C,OMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST. TORONTO, ON~ARIO. M5G IZ8- SUtTE £1~2~ ' TE£EPHONE.,'T£L~PHONE
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. 1051/88
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
OPSEU (Hislop)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Community & Social Services)
Employer
Before:. A. Barrett Vice-Chairperson
P. Klym Member
D. Walkinshaw Member
For the Grievor: H. Law~
Senior Grievance Officer
Ontario Public Service
Employees Union
For the Employer: S. Patterson Counsel
Legal Services Branch
Ministry of Community &
Social Services
Hearing: March 1, 1989
DECISION
This is another ±s a cluster of cases brought before
this Board in which we are being asked to decide which of two
conflicting decisions of the Board is correct. The decisions
are BeresfordlG.S.B. 1429/86 and Hicks G.S.B. 2653/87. At our'
hearing on March 1, 1989, the employer requested an adjournment
sine die to await the decision of Courts which were reviewing
both decisions. In Beresford, leave was being Sought to the
Court of Appeal from a decision of the Divisional Court
upholding the Board's decision. In Hicks, a judicial review
Proceeding had been launched in the'Divisional Court. l The
application had just been perfected and itlappeared it would be
many months at least until a decision was rendered, and even
longer, if appealed.
The instant grievance concerns a job competition in
which the grilevor claims he was not given the benefit of having
his seniority considered because he was considered unclassified
staff when, on' the basis of Beresford, he should properly have
been considered classified staff.· The u~ion says there would
be substantial prejudice to the grievor if this grievance is
adjourned into the distant future, leaving the grievor's job
status in limbo.
The employer argued that in view of the G.S.B. decision
in Blake 1276/87 which held that it is not appropriate for one
panel of this Board to overrule the decision of another panel
of the Board except in exceptional circumstances, we should not
take it upon ourselves to "choose sides" before the reviewing
Courts clarify the matter once and for all.
To further add to the confusion, the issue of whether
or not to adjourn to await the Courts' decisions in.Beresford
and Micks is also the subject of conflicting decisions of this
Board.
'In McKinna 439/88 and ~l-Karazati 775/88 the Board
granted the employer request for an adjournment to await the
outcome of Hicks and Beresford. In MacMillan 157/88 the Board
granted an adjournment to await the outcome of a pending Board
decision which might or might not be in conflict with an
earlier Board decision.
In Mathieu 987/88 the Board declined to grant an
adjournment to await the outcome of Beresford and'Xicks,
promising written reasons to follow. In McClella~ 865/85 the
Board declined to grant an adjournment for the same purpose,
without written reasons.
We were also advised at the hearing that another
similar application for adjournment had been reserved in
Tsiotsikas 905/88 and that reasons could be expected shortly.
As well, a panel of the Board, chaired by'the same vice-
chairperson (Wilson) , was proceeding to delve into the
merits of the'conflict between Beresford and Hicks in Br~ssette
1682/87,'.where no adjournment had been requested.
In result, we reserved our decision on the ~pplication
for adjournment until receipt of. the Tsiotsikas decision.
Tsiotsikas has now been released and so have' the
written reasons promised in Mathieu and the decision on the
substantive issue in Bressette. Also, on June 26, 1989, the
Court of Appeal refused leave to appeal in Beresford.
In Tsiotsikas the Board stated that it had an
obligation to clarify its own jurisprudence where there was
conflict, and further that the reviewing Courts might find it
helpful to know whether we have taken a definitive decision
subsequent to the conflict having arisen. That panel denied
the request for an adjournment and is now proceeding to deal
with the merits. As mentioned earlier, the same vice-
chairperson (Wilson) was seized with the merits in Bressette
where no adjournment was requested.
We now have the benefit of the Bresset~e decision which
clearly and succinctly finds Beresford manifestly correct and
Hicks manifestly wrong. Just three days after the release of
Bressette the Court of Appeal upheld the Divisional Court
decision that Beresford was correctly decided.
In view of all that has transpired since our hearing,
we are of the opinion that an adjournment in this case to await
the decision in Hicks should not be granted. We are also of
the view that Bressette should be followed by us on the basis
of its cogent and compelling reasoning and on the basis of
Blake..
We are aware that this decision was reserved only on
the issue of the adjournment and not on the merits of the
classified-unclassified issue which was not argued before us.
We understood that if the adjournment was not granted the
parties wanted us to reconvene to determine that preliminary
issue; then proceed on the merits of the job competition
grievance only if we found on the preliminary issue that the
grievor was a member of the classified staff at the time the
grievance arose. In the interests of fairness and expediency,
we do not think it appropriate to reconvene to hear the
preliminary issue alone. In Beresford, once the Board had
determined that the grievor was improperly appointed to the
unclassified service, the Board remitted the matter to the
parties to attempt to fashion a remedy and remained seized in
the event the matter could not be resolved between the parties~
The Bressette Board opted for the same.approach, and we feel
that is the most appropriate manner of proceeding in this cas~
as well. However, if either of the parties thinks we have gcze
too far in disposing of this case without'full argument on the
merits of the preliminary issue or remedy, we are prepared to
reconvene. We direct the registrar to schedule a date for a
hearing upon the request of either party.
DATED at Toronto, this ~th' day of ~.~~~ ..... 1989.
A. B~ETT, Vice-Chairpe[~on