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HomeMy WebLinkAbout1989-0755.Fabro.91-05-23 ONTARIO EMPL OYES OE LA COURONNE CROWN EMPLOYEES DE L 'ONTA RIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 1BO DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTAR.~. MSG 1Z$ TELEF~HONE/TEL~OHO,~E.. (4 ~5,~ 2,25- 1388 180. RUE DUNOAS OUEST, BUREAU 2100, TORONTO (,~NTAI::UO.L MSG 1Z8 FAC$1f'.4iLE/T~-L~COPlE .' ('~5) .)26-~396 0755/89,0757/89 1374/90 IN THE MATTER OF AN;~RBITRATION Under THE CROWN EMPLOYEE8 COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BO~%RD BETWEE~ OPSEU (G. Fabro) Grievor - and - The Crown in Right of Ontario (Ministry of Industry, Trade & Technology) Employer BEFORE: R.J. Roberts Vice-Chairperson E. Seymour Member G. Milley Member FOR TH~ A. Ryder GRIEVOE Counsel '' Ryder, Whitaker, Wright & Chapman Barristers'& Solicitors FOR THE .P.M. Rusak EMPLOYER Counsel Mathews, Dinsdale & Clark Barristers & Solicitors HEARING: May 13, 1991 Interim Award At the outset of the hearing on the evening of May 13, 1991, counsel for the Employer made a motion to adjourn. The reason was that a key witness for the Ministry, Mr. John Quigley, had on that morning sent a letter to the Board in which he declined to attend and testify upon cross-examination because he felt the stress would put his health at risk. A Doctor's letter admitted into evidence on May 8, the previous day of hearing, confirmed that Mr. Quigley suffers from serious cardiovascular disease and has been scheduled for open-heart surgery on June 2, 1991. The letter stated, in pertinent part: As Mr. Quigley's symptoms are potentially secondary to serious cardiac disease, I have advised, him to limit his exertion and exposure to stress and strain until the etiology of his symptoms are determined by the cardiac investigations. He is capable of judging when he has reached the limit of his endurance and must stop.to rest when he has done so. - 2 - It was submitted by Counsel for the Employer that Mr. Quigley was entitled to rely upon the advice in this letter to justify declining to attend for cross-examination on May 13. Counsel for the Union objected to granting the adjournment. He questioned the bona fides of Mr. Quigley's absence and, pointing out that Mr. Quigley went to work on May 13, suggested that his absence was for purposes of delay and not due to his medical condition. It was further stressed by counsel for the Union that because it now seemed that Mr. Quigley would not be available for cross-examination until August at the earliest, hearing days already scheduled for May' 14 and June 7, 19 and .28 would all become, as a practical matter, redundant. Not only was Mr. Quigley the key witness for the Employer, counsel submitted, but the Union also regarded his cross-examination as key to its own case. In this state of affairs, it was submitted, it would be highly prejudicial to the Union to be forced to put on its case out of order pending Mr.~ Quigley's return. - 3 - Most importantly, counsel for the Union submitted, a further delay of several months was extremely prejudicial to the grievor, both in terms of his financial stability and mental health. Counsel stressed that because this is a discharge case, the grievor has been without income since his discharge on August 10, 1990. To force the grievor to endure a further several months of delay because of the unavailability of a key Ministry witness, it was submitted, would be financially devastating to him. As to the impact of delay upon the grievor's mental health, counsel for the Union directed the Board to a letter which was already in evidence. This was a letter dated April 10, 1991 from Dr. C. V. Murray, the grievor's psychiatrist. It read as follows: Dear Mr. Ryder: Re: Greg FABRO I am writing further to our recent telephone conversation about the above-named, when you requested that I send an up-to-date report. - 4 - I have seen Mr. Fabro three times within the past three months, on January 4th, 1991, January 22nd, 1991, and March 1st, 1991 respectively. He has lost a considerable amount of weight, giving the appearance of having aged appreciably. He presents a picture of exhaustion, his concentration on any topic under discussion is very poor, and I have had considerable difficulty in getting him to focus on his situation in regard to the hearings of last year. In conclusion, I am very seriously concerned that Mr. Fabro's condition is steadily and visibly deteriorating. His mood is depressed to the point of despair and he needs help urgently to resolve this appalling situation. I beg you to do everything in your power to deal with this matter before Mr. Fabro's" health breaks down, perhaps irrevocably. Yours very truly, (Signed) C. V. Murray, M.D., F.R.C.P.(C) - 5 - The letter indicated that delay in resolving the grievor's situation could contribute to a serious -- perhaps irrevocable, to use the Doctor's words --impairment of the grievor's mental health. It was submitted by counsel for the Union that in the circumstances, the only adequate remedy was not an adjournment but an order allowing the grievance and placing the grievor back into his job.. It was submitted in the alternative that if the Board were disposed to grant the adjournment, it should be on terms adapted to give the grievor some compensation to relieve his financial distress during the period of the delay.* * ~here also was a submission re a refusal on ~he part of the Ministry to permit counsel for the Union to retrieve for purposes of the cross-examination on May 13 certain files which we had ordared to be produced. In an oral award on May 13 we directed the Ministry to compensate counsel and for his firm for any costs arising out of this futile attempt to retrieve the files. - 6 - Counsel for the Ministry replied that it would be inappropriate to reinstate the grievor as requested, and cited to the Board the quashing by the Divisional Court of an award of Professor Samuels in Re' Taffender, GSB No. 296/83. In that case, the Board made such a reinstatement and the Divisional Court rejected it, stating essentially that to reinstate a grievor due to delay in the Employer's case constituted a denial of the right of the latter to a full and fair hearing. As to the request for terms, counsel for the Employer indicated that she wished to make submissions upon this issue if the matter were to be seriously considered by the Board. Counsel indicated that because the question of adjournment had only arisen that day, she had not yet had the opportunity to prepare submissions upon the issue. Thereafter, the Board considered the submissions of the parties. We declined~to reinstate the grievor and reserved on the matter of terms. We granted an adjournment for May 13'. The granting of an adjournment for May 14 was made conditional upon receipt of confirmation from Mr. Quigley's cardiologist that his - 7 - medical condition made it inadvisable for him even to appear at the hearing. This confirmation was received by the Vice-Chair on the afternoon of May 14 and the adjournment was accordingly granted. The Board expressly declined to issue any order relating to the hearings currently scheduled for June 7, 19 & 28. We indicated that we would consider this issue and address it in this Interim Award. Having now considered the matter, it is the direction of the Board that the hearing for June 7 will take place as scheduled. ~We will hear any evidence that can practicably be heard out of order, if this is not practicable in the submissions of counsel, we will entertain a motion to adjourn until Mr. Quigley is declared by his Cardiologist to be fit to ~estify and hear submissions as to what terms, if any, should condition the adjournment. - 8 - Dated at Toronto, Ontario this 23rd day of May, 1991 oberts .air Ed Seymour Un ion 'Member George Mil ~ployer Member