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HomeMy WebLinkAbout1991-0884.Kalimootoo&Bourne.92-05-22 ONTA RIO EMPL 0 Y~S DE LA COURONNE CROWN EMPL 0 YEES DE ~.'ON TARIO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ~80 DUNDAS STREET WEST, SUITE 2~00, TORONTO, O~.TAR~O. M5G ~Z8 TELEPHONE/TELEPHONE: 180, RUE DUNDAS OUEST, F~UREAU 2~00, TORONTO [ONTARIOL MSG IZ8 FACSII',qlLE,'TELECOPiE ; 884/91, 885/91, 942/91, 943/91, 1080/91, 1096/91, 1106/91, 1199/91, 1206/91, 1282/91, 1381/91, 1382/91, 1428/91, 1671/91, 2321/91, 2338/91, 2339/91, 2340/91, 2341/91, 2342/91, 2343/91, 2344/91, 2551/91 IN THE MATTER OF 3tN ARBITRATION Under THE CROWN EHPLOYEES COLLECTTVE B~a. RG~.TNING ~,CT Before THE GRIEtrANCE SETTLEKENT BOARD BETWE~.N OPSEU (Kalimootoo/Bourne et al) Grievor - and - The Crown in Right of Ontario (Ministry of Citizenship} Employer BEFORB: W. Low Vice-Chairperson J. Carruthers Member I. Cowan Member FOR THE D. Wright GRIRVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE D. Jarvis EMPLO.YER Counsel Winkler, Filion & Wakely Barristers & Solicitors HE~RING May 13, 1992 INTERIM DECISION Before us are a group of classification grievances brought by a number of hdman rights officers classified Human Rights officer II and employed in the Ministry of Citizenship by the Human Rights Commission. They seek re-classification to Executive officer II and will rely on a usage argument. These grievances have been consolidated upon agreement of the parties. The nature and extent of the agreement appears to have been that the group of grievances would stand or fall together and that one Grievor, Ms. Frances Serpell, would testify as a representative Human Rights Officer in order to avoid repetition of evidence. It does not appear to have been agreed that this Board would hear and determine one grievance with the result to be binding on the balance. What we therefore have is a large group of grievances all going forward for hearing together, and it is this circumstance which moved the employer to make the preliminary motion which is the subject matter of this interim award. Although the many grievances before us are substantially the same in that they raise the same complaint and seek the same redress, they were filed at varying times, the earliest of which was Mr. Cotton's grievance, filed May 24, 1991, and the latest of which was Ms. Cooper's grievance, filed January 6, 1992, some time after this group of grievances originally came on before this panel for hearing (which hearing was adjourned at the request of both parties without any evidence having been adduced). The employer, by way of preliminary motion, seeks an order of this Board disallowing the Union from adducing any evidence as to facts post-dating, the date of the earliest of the grievances, namely May 24, 1991. It is argued that to do Otherwise' would be a violation of the general r~le in classification cases that only those facts which are in existence at the date of the grievance are relevant and admissable. This motion is made as the Union has advised that it intends to adduce evidence of certain circumstances or events taking place after the date of the earliest of the grievances. 'The Union argues that the sole test of admissibility should be relevance, and that if there should be a cut-off date in respect of facts for which evidence may be adduced, it should be January, 1992, the date of the last grievance, or alternatively, July, 1991 when a large number of the grievances were filed. The parties have put the issue in jurisdictional terms, the employer arguing that we have no jurisdiction to consider facts and events post-dating the filing of the grievance, and the Union arguing that it is the proper exercise of our jurisdiction to receive all evidence which may be relevant, subject to weight. 3 We are of the view that the question is not one of jurisdiction but one of evidence, and a question that arises peculiarly in this context because of the failure of the parties to have fully considered the consequences of consolidation or alternatively to have fully fleshed out the terms of their agreement as to consolidation. Had there been no consolidation, there is no doubt that Ms. Cooper, who grieved in January 1992, would be entitled to rely on evidence of facts and circumstances up to the date of her grievance, and mutatis mutandis for each of the Grievors. In the absence of the later Grievors having agreed to abandon certain evidence which might assist them and which could have been led as of right had they not consolidated with earlier grievances, can we properly deny them the right to lead that evidence solely by reason of the fact of consolidation? In my view, it would be wrong to do so. On the other hand, it would also be wrong in princiDle to hold that the door is open to those Grievors who grieved early to rely on evidence as to facts and circumstances post-dating their grievances, and we do not do so. It may be useful to draw a distinction between two kinds of evidence of facts and events which post-date the grievance date. On the one hand there is evidence of actions or events which post- date the grievance but merely exemplify the state of the duties, 4 o functions and.expectations of the Grievors prior to the grievance date and on the other hand there is evidence of facts and events which reflect a set of circumstances, duties, functions and expectations which came into being only after the date of the grievance. The latter is not Prime facie admissible in a classification case whereas the former may' be. In summary, we are not prepared to make an order at this' juncture of the hearing eXcluding all evidence which post-dates the date of the earliest grievance in the absence of the Grievors' agreeing to be bound by the evidence admissible in respect only of the earliest grievance, and, afortiori, in the presence of the Union's strong urgings to the contrary. In the circumstances, we as a Board will have to be vigilant'in applying the particular segments of the evidence only to those Grievors to whose situations it is relevant and admissable and we trust that counsel will be vigilant with us in this effort. We do wish to emphasis, however, that while we do not make the · order excluding evidence as requested by the employer, this decision should be confined to the particular circumstances before us. This decision ought not be construed as one espousing the view that evidence of post-grievance facts and circumstances is admissible at large. In our view, it is neither appropriate nor practical to make any such ruling in the absence of a particular I am in complete agreement wi~ We Interim Award dated May 22~ 1992. The only pu~ose of this addend~ is to e~ress the opinion that if evidence of events occurring after the initial grievances leads to success in later grievances then all grievances cannot stand or fall together. ~her, if any grievance succeeds based on evidence of events after the date of the original grievance then that date cannot be considered in setting the effective date for whatever reme~ is granted. I. Cowan