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Home My WebLink About1990-0008.Miller.92-12-12 ~, , EMPLOYÉSDE LA COURONNE ONTARIO - " CROWN EMPLOYEES DEL 'ONTARIO 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS T80 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG lZ8 TEf.EPHONEITELEPHONF (415) J26-1J88 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO), MSG lZ8 FACS/M/LEITÉLÉCOPIE: (415) 326-1396 . 0008/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Miller) Grievor - and - The Crown in Right of Ontario (Ministry of correctional services) Employer BEFORE: R. Verity Vice-Chairperson T. Browes-Bugden Member - A. G. Stapleton Member FOR THE D. Eady GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & SOlicitors FOR THE L. McIntosh EMPLOYER Law Officer Crown Law Office civil Ministry of the Attorney General HEARING: November 7, 1990 I - 2 - DEe I 5 ION , In a grievance dated March 9, 1990, Gerald Miller alleges dismissal . without just cause. The dismissal on December 10, 1989 was based solely on the grievor's conviction for sexual assault and the impact of the conviction on his employment status with the Ministry. The only issue before this panel is the Employer's request for an adjournment pending the disposition of a new criminal trial on the same charge of sexual assault scheduled to be heard in Court on January 28, 1991. The matter proceeded by way of an Agreed Statement of Facts and brief submissions by Counsel. The facts read: 1. The Grievor was employed as a Correctional Officer at the Whi tby Jail. 2. On November 27, 1987, the Grievor was charged with sexual assault. 3. In a letter dated February 24, 1988, the Grievor was advised that he was dismissed effective February 26, 1988, by reason of the criminal charge. On October 7, 1988, the Ministry rescinded the dismissal and advised the Grievor that the intervening period would be considered a suspension without pay. £¡.. The Grievor grieved the suspension and the matter was heard by the Grievance Settlement Board, which issued two awards, one dated November 7, 1988 and one dated February 14, 1989, holding that the Grievor had been improperly suspended except for a short period in 1988. 5. The Grievor was returned to work at the Whitby Jail in the position of Maintenance Mechanic pending the disposition of the criminal charge. - - 3 - 6. On November 21, 1989, following a five day trial in the District Court at Whitby, the Grievor was convicted of sexual assault. He was remanded in custody pending sentencing, to the Quinte Detention Centre in Napanee. There was a ban.on publication of this 5 day trial. 7. Following a meeting on December 15, 1989 at the Quinte Detention Centre, the Grievor was advised in a letter dated Oecember 20, 1989, that he was dismissed from his employment effective that date. At meeting on December 15, 1989, ,the Grievor told his superintendent that he intended to appeal his conviction and had made application to Legal Aid. 8. On December 21, 1989, the Grievor was sentenced to 34 months in jail, with a prohibition on possession of firearms for a period of 5 years. 9. A Notice of Appeal was filed on behalf of the Grievor on March 1, 1990 and he was granted bail pending the appeal on March 7th. 10. The Grievor filed a grievance had he had "been dismissed without just cause" on March 9, 1990. 11. The appeal was heard by the Court of Appeal on July 26 and 27, 1990 . The matter was reserved and bail was again granted, pending the release of the decision. 12. On August 20, 1990, the Court of Appeal released its decision, allowing the appeal, quashing the conviction and ordering a new trial. Bail was extended to September 10, 1990, when the Grievor was ordered to appear in District Court in Whitby to set a date for a new trial. 13. The new trial is scheduled to proceed on January 28, 1991. 14. There are also new charges of breach of undertaking and threatening death outstanding aginst the Grievor. There is a preliminary hearing scheduled for December 6 with respect to the new charges. The Employer contended that its case depended entirely upon the outcome of the criminal proceedings for sexual assault and that in the event of an acquittal, the grievor would be reinstated subject to two caveats: - 4 - (1) Without prejudice to the Employer's position on the new charges; and , (2) The appropriateness of reinstatement to the Whitby Jail. In sum, the decision to dismiss was based on the conviction for sexual assault. Ms. McIntosh reviewed the principles for granting adjournments and submitted that the relatively short delay until the criminal trial in January, 1991 (some 2-1/2 months) would not unduly prejudice the grievor. In opposing the adjournment motion, the Union cited the economic prejudice to the grievor in any further delay. In addition, the Union argued that since the judgment of the Court of Appeal quashing the conviction there was no longer a factual basis for the dismissal. Mr. Eady submitted that regardless of the eventual outcome of the criminal proceedings, there was, at least, the legal issue of entitlement to reinstatement pending the trial. Under 5.20(8) of the Crown Employees Collective Bargaining Act, the Grievance Settlement Board has the statutory authority to determine Íts own practice and procedure subject to the right of the parties of IIfull opportunity" to present evidence. However, there appears to be some reluctance on the part of arbitrators to grant adjournments pending the disposition of a criminal trial on the basis that one proceeding is not determinative of the other and the need for expeditious disposition of a dismissal case. See generally, Re University of Western Ontario and CUP£~ Local 2361 (1988), 35 L.A.C. (3d) 39 (Dissanayake); and Re Boeing of Canada Ltd. and C~nadian Automobile Workers, Local 2169 (1990), 10 L.A.C. (4th) 441 (Chapman). - - - 5 - In balancing the parties competing interests, the panel is satisfied that, in these particular circumstances, the matter should be adjourned pending the criminal proceedings. Although there is some prejudice to the grievor in granting the motion, the greater prejudice, we think, would be to the Employer in refusing to do so. As stated by Arbitrator Chapman in the Boeing case at p. 447. "A common thread of the jurisprudence relating to adjournments is. the question of delay.o" In that case, it was found that a four month delay in awaiting trial would not constitute an untoward delay. Similar ly, the panel is satisfied that a 2-1/2 month delay in the case before US is not an inordinate delay. On the basis of the agreed facts, although tDe conviction against the grievor for common assault was quashed, a new trial was ordered. As a result, it cannot be said that there is no factual basis for the dismissal. Unlike the usual case, it may well be that the disposition of the criminal proceedings in this matter will decide the outcome of the employment relationship. However, we hasten to add that this panel is not called upon to deal with the merits of the case. For the above reasons, this grievance shall be adjourned pending the disposition of the criminal trial scheduled for January 28, 1991 subject to the following conditions: (1) In the event that the grievor is acquitted of the criminal charge of sexual assault he shall be reinstated, subject of course, to the two caveats raised by Counsel for the Employer. ~ · - 6 - (2 ) In the event that the grievor is reinstated, he shall be entitled to compensation for all lost wages as of November 8, 1990. 0) Following the disposition of the criminal proceedings against the grievor, or in the event the matter does not proceed, either party may request the Grievance Settlement Board Registrar to convene a hearing on the merits or on any other issue in dispute and such hearing shall take place in February and March, 1991. DATED at Brantford, Ontario, this 12th day of December 19SQ.. ' ~-- ~: ' l.::~ ~- " '¿-. - . ¿:. . 7 ~- -~.......tt......."".....",..",,,,,,*.1o..~. R. L. VERITY, Q.C. - VICE-CHAIRPERSON oJ!;. /} ~ ·1¡rrVlR&l,.L:........ ,. BROWES-BUGDEN -' ,dER ." .. .¡f~:. :J4~4Ä:':-.-... .., ~. STAPLETON - MEM R , ~