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Home My WebLink About1989-1270.Donnelly.90-04-27 ONTARIO EMPLO Y~-$ DE LA COURONNE CROWN EMP£ 0 YEE$ DE L 'ON ~'ARtO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARtO. M5G 1Z8- SUITE 2100 TELEPHONE/T~'L~PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) M5G tZ8- BUREAU 2t00 (416) 598.0688 1270/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Donnelly) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer - and - BEFORE: G.C, Simmons Vice-Chairperson F. Taylor Member D. Clark Member FOR THE M. Bevan GRIEVOR: Grievance Officer Ontario Public Service Employees Union FOR THE S. Wilson EMPLOYER: Counsel Mathews, Dinsdale & Clark Barristers & Solicitors HEARING: February 20, 1990 APR I~ '98 i~:04 FROM ELITETYPI~G ~ PAGE,083 The grievance ~ate~ July 13, 1989, states, "I grieve sepal ~arassment by manag~ent." ~d the set=lemen~ de~ired is ~nag~ent cease ~d desist, and an or~e~ be ~ade that ~e n~ed individuals not be allowed direct contact with sai~ ~ployee acoomp~ied .by another manag~ent person or Union S~ewa~ [sic] ." At ~e co~enc~ent of ~e he~ing, co~sel for the raised two prelimina~ object~ons. The first objection wa~ in rela=~on ~o the fac~ ~hat ~he allege~ harasser had not be~ given advice ~at he should seek independen~ legal co~el. ~e allege~ harasser in~icat~ to ~e ~ard ~ha~ ~til ~e mo~ing of the hearing he was of ~e opinion ~ha= the co~sel for ~e Mi~ist~ would be likewise a~i~g on his behalf. However, co~el for Minist~ info,ed ~e ~ard ~at the interests o~ the Minist~ those of ~e alleged harasser might diverge during ~e course of ~ese proce~ings. ~e all~e~ harasser, ~erefore, indica~ ~0 the ~a~ ~hat he ought to be given an oppo~unity to consult wi~ his la,er in o~er to seek a~vioe. A second prelimina~ objection by ~he ~ployer was ~at Stage ~o meeting had been held and ~erefore, ~e ~ard was wi~out jurisdiction to p~ceed wi~ this mat~er. ~e~ore, ~loyer a~ ~at as a conse~ence the par=iem had been ~le to attempt to resolve their differences. Acco~ingly, ~e ~ployer adopts ~e ~osition ~at =he Board is wi~out Jurisdiction to pr~eed to ~e merits of ~is case because of ~e failure to hold a S~ge ~o meeting. APR lS '90 16:04 FROM ~L[T~TY~[NG ~AGE.004 The B~ardhear~ further representations from both counsel and was informed that ~he grievance was dated July 13, 1989, and tha~ the parties met on September 18 for a S~ageTwo meeting. While all relevant pax~cies were present for thim meeting, we were informed that no meaningful discussions took place and therefore the meeting was unsu¢~es~ul. We were further informe~ that the alleged harasser ha~ 1@gal counsel attending the meeting and once thl~ became known to the ~nion representatives it was their position that they too ought to be allowed an opportunity to have legal counsel preeent. Conseq~lently, the meeting adjour~edwithcut the issue being discussed on the merits of ~he matter in dispute. Unfortunately, the parties were unable to reconvene a further meeting and the matter o~me forward f~r arbitration, Consequently, consider the merits o~ the matter in dispute, the Board is without jurisdiction to proceed. Union counsel a~van¢~d the proposition that the Board ought not to ~elve into wha~ transpires at various stages in the grievance procedure. The 8card fia~ adopted a practice of refusing to delve into such matters because, to do so, would tr~hibiC free and frank discussions during the grievance pro=ess. One further comment on what transpired on or about September 18, 1989, ~s, we believe, relevant. The Deputy Minister's Designee who~haired the meeting of September 18 issued his written decision dated September 20 wherein he stated, inter alia, that~he grievance was without merit. Counsel fort he APR lB '90 1G:05 FROM ELITETYPi~G PAGE.005 · Employer argued that this decision was based on ~e result of an earlier investi~ation by the Designee and had not/~ing to do with what transpired on September 18. The Board caucused and considered the representations made by the pa=ties in connection with the preliminary objections raised above. In connection with ~he r~quest for an adjournment, it was the Board's ccncluslon that when it heard the alleged harasser state that he was under the impression that counsel for the Min£st=y would be iikewise representing his interests but u~on learning, during the course of this hearing from counsel for the Ministry that the interests o~ the Ministry might diverge ~rom his interests and upon hearing the alleged harasser's comment that he would now therefore wish to contact his lawyer, the Board concluded, ~eeplng in mind the requirem~nts of natural Justice, that it had no alternative but to grant an adjournment to enable ~ alleged ~ar~seer an opportunity to obtain independent legal advice. In relation to the second preliminary objection that the Board was without jurisdiction to proceed because there was no Stage Two meeting, ~e Board ruled that while it is true that the parties met on September 18 but were unsuccessful in having a meaningful discussion, the Board was also cognizant of the £act that two days later theDesignee oft he Deputy Minister issue~ a writtsn decision ~tating that the grievance was without merit. ~ve~ if ~e Board accepts theEmployer~s statement thatthe decision was based on,he results of an earlier ~nvestigation by the Designee, the Board was uncle to dmte~tne wha~ k~nd of a sisal such a decision would have on ~e Union and the gri~or. ~at is to ~ay, such a d~c~ion ffollowing two days affter the meeting would be reason~[e for one to inte~ret the decision as being a natural flow from that meeting. However, we hasten to add, ~at we s~ply do not ~ow what ~e answer is to such a ~est~on and therefore we reiterate ~at ~e ~ard is ~le, as we believe was the situation for the Union and the ~ievor, to dete~ine what ~e decision of Sept~er 20 was to convey. ~e Boa~ ac~owledges that it has followed a practice of not hearing evidence as to what trans~ires at a Stage ~o meeting ~d we are in agreemen~ wi&h that pra~ice. In ~e instant situation, the ~ployer says that a Stage ~o meeting did not take place whereas the Union advances the proposition ~at such a meeting place but that it was unf~itful. Having regard to ~e fact that both pa~ies ac~owledge that all relevant pa~ies were att~dance at ~e Septet 18, 1989 meeting ~e~ it is ~e ~ard~s opinion, by majority) ~a~ ~e pa~ies fulfilled the remitments of the Collective Agre~ent and of the ~o~~loy~es Colle~ive ~rga~n.~n~ Ac_t. ~e objec=ions were and are therefore dismissed ~d, p~uant to ~e ~ard's ~ling respecting ~e adjou~en~, was a~eed tha~ all pa~ies would be avail~le to attend a reconven~ hearing on April 27, 1990. APR 1~ '~0 ~0~ FROM EL!TETYPlNG PAGE~807 Datmd a~ l~ngston this ~ day of , F~e~l Taylo~W"[' Member Don M. Clar}c, Member