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HomeMy WebLinkAbout1989-0755.Fabro.90-03-07' ONTARIO EMPLOYES DE ~ COURONN£ · CROWN EMPLOYEES DE L'ON~RIO " GRIEVANCE CpMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WES~ TORONTO, ON.RIO. M5G 1Z8-SUITE21~ ~LEPHONE/T~L~PHONE ;80, RUE DUNDAS OUES~ TORONTO. (ON~RI~ MSG lZ8 * BUR~U 21~ (41~ 5~-0~$ 755/89, 757/89 IN THE MATTER OF AN ARBITRATION Under- THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (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 THE A. Ryder GRIEVOR: Counsel Ryder, whitaker, Wright and Chapman Barristers & SoliCitors FOR THE P. Rusak EMPLOYER: Counsel Winkler, Filion and Wakley Barristers & Solicitors HEARING: December 13, 1989 INTERIM AWARD At the outset of the hearing in this matter, the Board was advised that the grievor had filed some .29 grievances .with the Grievance Settlement' Board, all relating to incidents which he clained demonstrated a pattern of harassment and intimidation directed toward him. This panel was assigned to hear 10 of those grievances, 9 of which were given G.S.B. No.755/89. The remaining grievance assigned to us was given G.S.B. No.757/89. It was the subnission of the Union that because all 29 grievances related to the same pattern of harassment as the 10 which were assigned to us, this panel should take jurisdiction of all 29 an~ consolidate them for hearing. The Ministry resisted this contention. It took the position that the panel lacked the Dower to take jurisdiction over any cases .:... which had not been assigned to it by the Chairman of the Board. As to consolidating together the cases which had already been assigned, it was submitted that this would deny the 'MiniStry its fundamenta'l right to have each and every case decided upon its facts and disenti=le the Ministry from knowing what case it had to meet. It was suggested that for these reasons, each case should be scheduled separately,, thereby maintaining their separate identities. We will deal first with the question whether we have the power to assert jurisdiction over all 29 grievances. 2 In Re Neamtz and Ministry of the Environment (1986), G.S.B. #516/84 (Gorsky), the question of the authority of a panel .of the Board to consolidate cases together was extensively examined. The Board said: The formal consolidation of two or more grievances would, in a technical sense, result in the melding of several grievances into one, for the purpose of being heard together. Cf. Williston and Rolls~ The Law of Civil Procedure, at p. 411, where two types of orders are compared, upon an application being made under the then Rules of Practice for an order consolidating actions. By analogy to Proceedings consolidated in the case of actions brought in the Supreme Court, where the consolidated actions would proceed as one action and there would be but one set of pleadings, one set of discoveries and one judgment, here there would be one grievance for the purpose of the collective agreement rather than nine ..... I interpret s. 20(4) of the Act as limiting a panel of ~he Board to dealing only with those grievances included in %he Notice of Hearing with respect to which a panel has been appointed. Artic'le 27.4 of the collective, agreement provides: if the grievor is not satisfied with the decision of the Deputy Minister or his designee or if he does not receive the decision within the .specified time the grievor may apply ,.~ Mr. Roland suggested that, in conjunction with s. 20(5) of the Act, it ought to be found ~hat a panel of the Board may summon before it any grievance for which an application has been made under Article 27.4. Section 20(5) is as follows: The chairman or a vice-chairman, one member representative of employee interest and one member representative of employer interest constitute a quorum and are sufficient for the exercise of all the jurisdiction and powers of the Grievance Settlement Board. When s. 20(5) and Article 27.4 are read along with ss. 20(4) and (9), it is seen that it is the Chairman who controls assignment of a panel and it is the Chairman who assigns powers to the Registrar. I cannot interpret s. 20(9) of the 3 Act as furnishing every Vice-Chairman and Member of the Board as having all of the jurisdiction Dowers of the Grievance Settlement Board. .I believe that section to be subject to certain limitations one of which would be that the panel's powers are restricted to cases and issues properly -placed before the members by the Registrar. .. Id. a: pp. 4-8. It was held'that an individual panel of the Board did not have the authority to call before it a grievance for which an application has been made under Article 27.4 of the Collective Agreement. It is the policy of this Board to follow its previous decisions except in cases where it is. evident that the previous decision was clearly wr~ng. We do not regard the decision in the Neamtz-case, above, to be clearly wrong and, accordingly, we will follow it in the present case. Our conclusion must be, then, that our jurisdiction is limited to dealing with the grievances which have been assigned to us by the Registrar. We do not have authority to call before us all 29 of the grievances filed by the grievor. We hasten to add that our conclusion here does not imply that we intend to be rest+rictive in dealing with the proof of matters constituting an essential part of the backgr'ound to the grievances before us. The "nub" of the grievor's claim is harassment. In R__e Taylor-Baptist and Ministry of Correctional Services (1988), G.S.B. #0163/87 (Kennedy), the Board acknowledged that.by its very nature, a claim of harassment is likely to involve a course of conduct, and, accordingly it may be necessary to examine that ongoing course of conduct in order properly to evaluate the merits of the ? grievor's claim in a particular grievance. See id. at pp. 5-6. · As in Taylor-Baptist, we will adopt a liberal approach to the admission of background evidence and will rule upon objections as to relevancy as they may arise. We do not interpret Re Maghsoudi and the Ministry of Transportation and Communications (1985), G.S.B. #392/82 (Brandt), which was cited to us by the Ministry, to be in conflict in any sense with Taylor-Baptist, supra. In Maghsoudi, the grievor attempted to raise allegations of discrimination by pursuing a grievance which essentially already has been settled. In that case, the grievor challenged two performance appraisals and in response, the Ministry withdrew them. This left no basis for proceeding to hear the matter of 'discrimination because, in the view of the Board, "the grievor's allegations of a discriminatory conspiracy...[went] essentially to the question of the good faith of those responsible for completing his performance appraisals. It...[was] in the context of his challenge to those appraisals that the allegations, of discrimination ...[may have been] relevant." Id___=. at p. 16. We now turn to consider the question whether the 10 grievances assigned to this panel ought to be consolidated for hearing. In Neamtz, supra, it was noted that there were two types of proceedings which were commonly.called "consolidation". The first 5 involved consolidating a number of actions together as one, with one set of pleadings, etc. The second involved retaining the separate identity of the actions but trying them together. We · understand that wha~ was suggested by counsel for the Union was the second type of consolidation. In Neamtz, supra, it was'pointed out that hearing several cases together helps to realize several beneficial purposes, including "the reduction of the chance of disDerate findings of fact, where the same incidents are involved; reduction in the number of times the same evidence will have to be heard and the chance of disperate decisions involving the same evidence, where the issues are the same." Id. at D. 5. It also was pointed out that in appropriate cases, a panel of the Grievance Settlement Board has jurisdiction "as a procedural matter, ... [to issue an order to hear several cases together]. Such an order is.not for consolidation, although two of the purposes o~ consolidation would be fulfilled -- the avoidance of repet'itive evidence and possibly inconsistent' decisions." Id___=. at pp. I3-14. Turning to the present case, it seems that if counsel for the Union intends to Drove all of. the facts relating to the 10 grievances before us, say with each preceding grievance serving as background against which to assess motivation, good faith, etc., in the next, it might be advisable to hear and determine them sequentially, starting wi=h the earliest. What we envision is 6 hearing the earliest grievance.using the procedure applicable to harassment claims per Taylor Baptist; making a determination; and then proceeding to the next grievance, using as background, inter a.!ia, the facts established in the preceding case. And so on until all grievances are determined. There may be one caveat to this: that where the incidents leading to two or more grievances occurred within a day or two'of each other, it might be advisable to hear the evidence and submissions relating to them at the same time. It seems to us that this procedure is the most attractive one for the present case. It ensures efficiency in fact finding and precludes the possibility of incoDsistency. It also alleviates the necessity for multiple proof of the same facts. Further, it takes into account the difficulties the parties might otherwise have in dealing with differing burdens of proof. In this regard, we note that of the 10 grievances before us, 9 involve allegations of discipline. One, however, involves an allegation that the grievor was appraised contrary to governing standards. 'This would be subject to a different standard of proof and even a different order of presentation of evidence than the others. 'At this time, we decline to issue an order requiring ~he parties to follow{.~ the foregoing procedure in the present case. We simply wish to lay this suggestion before them for their consideration. At the commencement of the next day of hearing, we will inquire of counsel whether they are in agreement to follow 7 this suggestion. If not, we will, after brief inguiry, order into effect this procedure or a modification thereof. DATED at London, Ontario, this 7th day of March, · 1990. R. J ~erts, Vice-Chairperson E. Seymour, Member G. Milley, Member