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HomeMy WebLinkAbout1989-0737.McNulty.92-11-25i~ ONTARIO EMPLOY~-S DE LA COUFIONNE CROWN EMPLOYEES DE L"ONTARIO GRIEVANCE CQMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100. TORONTO, ONTARIO. 1'~5G 1Z$ TELEPHONE~TELePHONE: (4 t$'l 326? ;388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). MSG :~Z8 FACSIMILE/T~L~COPIE : (4 ~5] 326- ;396 737/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAININ~ ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (McNulty) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) .Employer BEFORE: N. Dissanayake Vice-Chairperson E. Seymour Member C. Linton Member FOR THE C. Flood GRIEVOR Counsel ~: Koskie & Minsky Barristers & Solicitors FOR THE A. Burke EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart, Storie Barristers & Solicitors HEARIN~ November 12, 1991 2 DECISION By grievance dated June 23, 1989 the grievor Mr. Denis McNulty, grieved under section 18(2)(c) of the Crown Employees Collective Barqainin~ Act, alleging that he had been dismissed from his employment without just cause. The "settlement desired" was "To be made whole in all respects". When the hearing commenced on November 22, 1989, in accordance with the usual practice in discharge cases, the employer proceeded with its evidence first. Its evidence continued on March 20, 21 and 22, 1990, calling a total of six witnesses. At the time the employer closed its case, employer counsel informed the Board that the parties had "discussed the issue of compensation" and that she was requesting that the Board remain seized with regard to compensation in the event the grievance is upheld. Union counsel immediately stated that he agreed to that request. The Board formally declared that as agreed upon, it will remain seized. When the hearing resumed on June 7, 1990, the Board invited the union to present its evidence. Counsel informed the Board that the union was moving for non-suit. The Board put the union to its election and counsel informed that it will not be calling any evidence. Employer counsel recognized 3 that it was the union's right to move for non-suit, but took the position that she had not anticipated having to argue a motion for nonhsuit that day. Following a brief discussion between counsel, they jointly requested that the hearing be adjourned, and advised the Board that both parties would be content to argue the non-suit motion on July 17, 1990. The Board consented to this joint request. On July 17th, union counsel made comprehensive submissions in support of his position that the employer had failed to establish a prima facie case to justify any discipline. In the alternative, it was argued that, if there was culpable conduct, discharge was an excessive penalty~ At the very end of his presentation, union counsel made the observation that if the Board decides to reinstate the grievor, "we will be requesting that he be credited for hours worked by casuals in the store who had the same seniority, to make him whole". Employer coUnsel in turn made detailed submissions in response to the motion for non-suit. In essence,, the submission was that the employer had established a prima facie case for discipline and that in the circumstances the Board should not substitute a lesser penalty. At the end of her submissions, counsel took the position that having moved for non-suit and elected not to call evidence, the trade union was 4 not now entitled to request the Board to remain seized of the issue of compensation because, the union was no longer in a position to call any further evidence. The Board ruled that the issue of the union's entitlement to call evidence on compensation will be dealt with later if it becomes necessary. Following a recess, the Board unanimously ruled orally that a prima facie case for discharge had not been made out and directed that the grievor be immediately reinstated. The Board reserved its decision on whether the grievor was guilty of any culpable conduct so as to justify the imposition of any discipline. In a written decision dated April 16, 1991, the Board confirmed its earlier oral ruling and went on to substitute a penalty of a 20 day suspension without pay. The decision concluded as follows: "Subject to this period of suspension, the grievor is to be reinstated with compensation and without loss of seniority. The Board shall remain seized in the event the parties cannot agree upon the implementation of the remedy directed". Subsequently, at the union's request the Board reconvened on November 12, 1991. We~were advised that while the employer had reinstated the grievor in compliance with the Board's order, the employer was taking the position that he was not entitled to any compensation at all. At the hearing, employer' counsel submitted that the employer's position was correct, because there was no evidence of any monetary loss before the Board, and since-the union had elected not to call any evidence, it was no longer open for the Board to entertain any evidence relating to loss. Counsel repeatedly emphasized that at ~he time union counsel made his election not to call any evidence, he did not qualify ~his election by reserving a right to call evidence, on remedial issues. Thus, it was submitted that in the circumstances the union was foreclosed from calling any evidence whatsoever. Employer. counsel heavily relied on the Ontario Divisional Court decision in Re Her Maiestv the Oueen in Right of Ontario and OPSEU and Barry Cahoon, (26 April 1990, unreported) where the decision of the Grievance Settlement Board was quashed on several grounds. Counsel referred us in particular to the following passages from the court decision. At pp. 26-27, Reid J. states: I do not think that one can grant a non-suit and then go on and decide other issues arising in the case as if it had not been granted. The non-. suit brought, or should have brought, the proceedings to a halt. It undoubtedly changed the course of the proceedings by foreclosing the introduction of other evidence. In my respectful opinion, once a non-suit is granted there is nothing more to consider. 6 At pp. 30-31 the learned judge states: Does a non-suit disentitle a grievor from damaqes? The Board held that the Grievor was entitled to claim damages notwithstanding the non-suit. This was obvious error. As already observed, no matter of fact was open to be determined on the motion Nadler v. Chorni~ (su__up_~). Moreover, in going on to determine damages the Board had to depend on evidence they had previously disregarded. They had held that the employer had failed to establish adequate cause for dismissal. They then proceeded to calculate compensation. They held, in effect, cahoon's loss could be established without any proof from Cahoon or any witness on his behalf that he had in fact suffered any loss at all and without any evidence of mitigation. The damages were "readily discernable" and needed no "special proof". This process of reasoning again demonstrates fundamental misunderstandings of both the law and the role they were called upon to play in applying it. In our respectful view, the court's observations do not assis~ the employer in the particular circumstances of this case. There are two fundamental distinctions in this case. Firstly, the court in Re Cahoon, does not address a situation where the parties had agreed to bifurcate the liability and remedy aspects of the grievance. The court decision does not contain any reference to any bifurcation of issues by way of an agreement or otherwise. Employer counsel has conceded that, she requested, the union agreed and consequently the Board ruled that, it will remain seized of the issue of compensation. Thus there was an explicit agreement, and a decision by the Board, to bifurcate the two aspects of the grievance. The result was that the remedy aspect of the grievance was set aside for later consideration, if it became necessary. When seen in this context, when Reid J. says that a non-suitbrought the proceeding to a halt and that there was nothing more to consider, in this Case the proceeding that came to a halt was the only aspect of the grievance that was ever commenced, namely, the proceeding wi~h regard to liability. Surely, one cannot say here that there was "nothing more to consider", when the parties had expressly agreed and the Board had decided that issues of remedy will be dealt with after the issue of liability was determined. It follows from the foregoing that the second passage from Re Cahoon, has. absolutely no relevance to this case. There the court was faulting the Board for making conclusions as to'the grievor's losses in. the absence of any evidence "that he had in fact suffered any loss at all and without any evidence of 'mitigation". Thus at p. 34 the court concluded: The result was serious. It left the employer ham-strung on a vital issue, and led the Board to. set damages without proof, for the evidence led by the employer did not prove Cahoon's loss. Here the union does not request that the Board make a determination as to Mr. McNulty's losses without evidence as to actual losses and mitigation. It is seeking an opportunity to present that evidence in accordance with the agreement reached between the parties. In light of that agreement the £ 8 Board's decision was deliberately left incomplete for purposes of receiving that evidence, if it became necessary. It was for that precise reason that the Board remained seized as to remedy as agreed to by the parties. Employer counsel points out that union counsel did not state that his election not to call evidence only related to issues of liability, and submits that had he done that the employer would have revoked its agreement to bifurcate the proceeding. As we have described earlier, the grievance claimed by way of r~dress that the grievor "be made whole in all respects". Thus there could have been no doubt that a "make whole" remedy would include compensation for losses. Then the parties expressly agreed to set aside the remedy aspect of the grievance by bifurcating the proceeding. In light of these events, we are satisfied that the employer could not, and would not, have been under any illusion that by moving for non-suit the grievor was waiving his rights to any remedy for the alleged breach. In the private sector, arbitrators appear to be divided on whether a board of arbitration may bifurcate the liability and remedy aspects of a grievance without the agreement of the parties. In cases such as Re Consolidated Aviation Fueling of Toronto Ltd., (1972), 1 L.A.C. (2d) 377 (Shime) and Re Motor Transmort Industrial Relations Bureau of Ontario (1973) 9 4 L.A.C. (2d) 154 (Brown), the arbitrators took the view that agreement of the parties was essential~ However, in a more recent decision Prof. H.W. Arthurs disagreed. See R_ge Metropolitan Toronto Board of Commissioners, (1977) 14 L.A.C. (2d) 1 (Arthurs). At p. 9 he set out the rationale behind the practice of bifurcation as follows: However, I reject the board's contention and hold that the parties are both still free to present~ evidence and argument relating to compensation. I do so because I take notice of the fact that it is virtually universal practice in labour arbitration to divide the hearing on the merits from any determination of compensation. It is normal, if not inevitable, for the parties to conclude their evidence on the merits without tendering any evidence as to the mitigation or other aspects of the compensation question. Sometimes at the close of the grie¥or~s evidence, sometimes during argument (but some-times not at all) the arbitrator will be asked to remain seized of the grievance pending a decision on the merits so that compensation can be ~fterwards calculated, if necessary. Whether asked or not, arbitrators will normally conclude an award ordering cOmpensation by inviting the parties to confer and agree upon quantum but retaining jurisdiction to hear and determine the matter if necessary. There are, no doubt, good reasons for the development of this practi~e. It makes the original hearing shorter, less costly, less acrimonious. It postpones & controversy which need not be confronted if the grievance is dismissed, and which can usually be amicably resolved if the grievance~ is sustained. It recognizes the fact that the calculation of damages (especially in discharge cases) is essentially a mechanical, rather than a judgmental, task. But whatever the.reason, the practice is now so well-understood and taken for granted that experienced counsel often "take as read" the arrangement for dividing the merits from the issue of compensation. 10 The learned arbitrator went on to hold as follows at pp. 12-13: Finally, at the level of principle, there is, in my view, an egregious flaw in both the Motor Transport and General Foods cases. Both cases seem to assume that the right of an arbitrator to postpone the question of compensation until after a decision has been made on the merits is dependant upon the consent of the parties. I am unable to agree. In my view, the arbitrator has the right and the obligation to organize the hearing as he sees fit, consistent with the requirements of natural justice, and in the absence of express, bilateral instructions from the parties. Long experience has shown that separation of the issues of liability and compensation is both an efficient and fair arrangement; the arbitrator needs no specific mandate from the parties to pursue this procedure. Many arbitrators have exercised the right to give effective relief consequent upon their decision on the merits, in the absence of consent by the parties: see e.g. Re Consumers' Gas Co. and Int'l Chemical Workers, Local 161 (1974) 6 L.A.C. (2d) 61 (Weatherill); Re Beach Foundry Ltd. and U.A.W. (1974), 7 L.A.C. (2d 61 (Abbott); Yardley of London (Canada) Ltd., supra. Although each of these cases turns upon a point different from the issue at hand, they all share a common perception of the arbitrators role: his remedial powers are implicit in his office, and not dependant upon the express agreement of the parties at any particular stage in the proceedings. I therefore conclude that I am not obliged to deal with the question of compensation in the absence of further evidence, and that I have the right to hold a further hearing, if necessary,- rdealing with that issue. We find arbitrator Arthurs' reasoning to be compelling. Thus even if employer counsel had purported to withdraw her agreement to bifurcate at the time the motion for non-suit was 11 made~ we would likely have done so without her agreement, unless of course we were persuaded that there was some convincing reasons to depart from what Prof. Arthurs correctly. describes as the. "virtually universal practice in labour arbitration to divide the hearing on the merits from any determination of compensation". The Board is a statutorily created tribunal. The creating statute, the'Crown Employees collective Baraaininq Act provides (in part) in section 20(8) that "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 ...". That provides the Board with the power to control its procedure, subject only to the partie~ right to be heard, we are satisfied that by bifurcating the procedure the parties' opportunity to present evidence and make submissions is preserved. In 'Re Metropolitan Toronto Board of Commissioners of Police (suDra) at p.9, the Board referred to the absence of any prejudice and reliance on hyper-technicalities: To allow one party to take advantage of the~ other's acquiescence in, or reliance upon, normal practice would be inequitable and unfair. It would invite the parties to turn the arbitration hearing into a cat-and-mouse game in which the participants advance their positions by asserting hyper- technicalities. And to what end? There was no prejudice here. The employer knew compensation was being sought, and must be taken to have known that, in accordance with established practice, it would be determined subsequently. When the point was raised in argument% and in subsequent 12 correspondence, counsel for the grievor offered to re-open the hearing, or to tender evidence at a subsequent hearing convened especially to deal with compensation. How is the employer's position prejudiced except by the loss of a technical position which, in any event, it did not according to established practice enjoy? But if the employer has lost nothing, the grievor has lost all - and this disparity of prejudice does not serve well the purposes of an institution whose function is to dispense industrial justice, in order to preserve industrial peace. Those remarks are equally applicable here. The employer knew throughout that the grievor was seeking to be made whole. When it requested and the union agreed, to differ the issue of remedy, the employer knew that if liability was established the issue of compensation will be determined later. So there was no prejudice to the employer. Rather, it was relying on a hyper technicality which would deprive the grievor a remedy for any loss he may have suffered as a result of its violation. For the foregoing reasons we find that the union is not precluded from calling evidence and making submissions on the issue of compensation. In view of this finding, the parties may be able to resolve the issue of compensation on their own. However, if that is not possible, the Registrar shall convene a further hearing at the request of either party to deal with that issue. 13 Dated this ~25th day of November1992 at Hamilton, Ontario. N.Y. Dissanayake Vice-Chairperson E. Seymour Member "I Dissent" (dissent to follow) C. Linton Member RE: GSB ~737/89 - OLBEU - McNulty DISSENT I have read the draft award in the subject matter and, with respect, must dissent from the majority decision for the reasons outlined below. 1. At the hearing on March 22, 1990, the Union insisted that the employer, very late in the day, either call their next witness or close their case in chief and that the Board not entertain a request for adjournment to address issues that the Union raised in cross-examination. The majority of the Board denied the request for'an adjournment and, it was at.this point in time that the employer counsel requested, on behalf of both counsel, that the Board reserve on damages. It is important to note that the employer had no choice but to close its case and that, at that point in time, was not aware that the Union would be moving for non-suit. 2. On June 7, 1990, the Union moved for non-suit and elected not to call any evidence. On that date, employer counsel recognized the Union's right to move for non-suit and the parties agreed to come back on July 17, 1990 and argue non- suit. At the end of the proceedings on that day, employer's counsel stated she would _dO so, "as long as the Union is electing not to'call evidence". 3. On July 17, 1990, during her submissions, the employer's counsel argued that the Union elected not to call any evidence and therefore were not entitled to call any evidence of any kind. At the point in time that the employer's counsel agreed to bifurcate, she was not aware that a motion for non-suit was forthcoming. Once the employer was advised of the Union's request for non-suit, its position was that the Union had to elect to call no further evidence; thereby withdrawing its agreement on bifurcation. Conditions subsequent to the agreement on March 22, 1990 should, in my opinion, negate the prior agreement on bifurcation. Even if agreement had been reached prior to the motion for non-suit to bifurcate, as stated by Justice Reid in Re Her Majesty the Oueen in Right of Ontario and OPSEU and Barry Cahoon (26 April 1990, unreported), on page "There is no reason to think that a motion of non-suit before an administrative tribunal should not conform with the law that governs the court" and on page 26: "I do not think that one can grant a non-suit and then go on and decide other issues arising in the case as if it had not been granted. The non-suit brought, or should have brought, the proceedings to a 'halt ..... In my respectful opinion, once a non-suit is granted, there is nothing more to consider". One can distinguish Re Metropolitan Toronto Board of Commissioners, (1977) 14 LAC (2d) i Arthurs, as the grievor had already testified and the issue was not one of non-suit. This award is disc6ssed in Cahoon supra, and the majority preferred the decision in Re Motor Transport Industrial Relations Bureau of Ontario and General Truck Drivers' Union. 4 LAC (2d) 154 where the .Union requested the opportunity to submit evidence on damages and the Board, by a majority, stated at page 159: "Once the election is made that the evidence which has been called by one party is the entire evidence before the tribunal, then it must be complete for all of the issues which 'without agreement, cannot later be separated after the decision on the evidence has been made." On page 14 of the subject Award, the majority state that the employer "was relying on a hyper technicality which would deprive the grievor a remedy for any loss he may have suffered as a result of its violation". I would comment that the Union's motion for a non-suit, with the proposition of being afforded the opportunity to call evidence with respect to damages, could be categorized as reliance on a hyper technicality to preclude the employer's counsel from cross-examining the grievor on the merits of the case. I would agree that when an election to call no evidence is made, it is made with respect to all the evidence in the proceedings; therefore the Union is precluded from calling evidence and making submissions on any issues. The case should be, in effect, closed. Respectfully submitted, Carole Linton, Employer Nominee..