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HomeMy WebLinkAbout1991-0933.Jafri.92-03-18 ONTARIO EMPLD~'ES DE LA COURONNE CROWN EMPL 0 YEE$ DF. L 'ON TA RIO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS tBO DUNOAS STREET WEST, SUITE 2~00, TO'cIONTO, ONTA. RJQ M5G IZ8 TELEP~'~ONE TELEO*~,':E !4 '..,.! 526-~3~ ~$O, RUE DUNDAS OU~ST~ BUREAU 2~00, TORONTO ;O~TA~'~O). MSG ~18 ~,~CS~,"~!L_= TELEC~'E ,-' '~, 32~- '396 933/91, 935/91 IN THE MATTER OF AN ARBITRATION Un,er THE CROWN EMPLOYEES COLLECTI~ BARGAINING ACT Before THE GRIE%~ANCE BETTLEMENT BOARD BETWEEN OPSEU (Jafri).? Grievo~ The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFO. RE: N. Dissanayake Vice-Chairperson P. Klym Member .. I. Cowan Member FOR THE A. Ryder GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE B. Humphrey EMPLOYER Counsel Stringer, Brisbin, Humphrey Barristers & Solicitors HEARING October 10, 1991 DECISION The Board is seized with four grievances filed by the grievor, Mr. Sohail Jafri. 1. A grievance alleging that "I have been discriminated against by not being given a fair opPortunity for an employment equity position that was recently posted." 2. A grievance wherein he grieves "the letter and .contents of the letter written by D. Oliver, dated March 14, 1991 and which was placed on my personnel file." 3. A grievanc~ alleging that "I am being discriminated against and also punished for exercising my rights for union representation and assistance as a paying union member". · 4. A grievance alleging that "the employer has violated the collective agreement by terminating me without'just cause by letter dated March 14, 1991, signed by D.M. Oliver." Following opening remarks by counsel and some discussions in the presence of the panel, it became apparent that the parties were agreed on one thing, that' is that grievance no. 4 above raised the so called "Beresford issue". However, the parties were at odds on other matters. Mr. Ryder took the position that in grievance no. 4, the grievor was attacking the non-renewal of his employment contract on two grounds. First, on the basis of the "Beresford argument", that he was improperly appointed to the unclassified service and second, 3 On the basis that the decision to not renew the contract was tainted by bad faith. I~ was Mr. Ryder's position that even if the grievor had been properly appointed to the unclassified service and he loses the Beresford argument, he is still entitled to challenge the'non-renewal on the basis that the employer was motivated by bad faith. Employer counsel on the other hand took the position that if the Board finds that the grievor was properly appointed to the classified servide, the Board had no jurisdiction to review the reasons for non- renewal. The parties also appeared to have different opinions as to what impact the outcome of the Beresford issue will have on the first three grievances. Ms. Humphrey also claimed that there was lack of particulars relating to the grievances. Mr. Ryder responded that these grievance's were still subject to investigation and undertook to provide particulars. He in turn alleged that the employer had failed to produce documentation relevant to these grievances. Mr. Humphrey's position was that while the employer was willing to make full disclosure, the union was entitled to disclosure of only those documents which are relevant to the grievances, and that it is not possible to determine what documents may be relevant until particulars of the allegations are provided. The Board orally ruled as follows: The union shall provide whatever particulars it deems adequate. Then the employer shall make disclosure of documents as it deems relevant. If any dispute remains as to the adequacy of the particulars and/or disclosure the Board will have to deal with that. Despite all of these differences, what the parties were able to agree upon was that the Boresford issue in grievance no.4 was severable, and could be dealt with. Accordingly, by agreement, it was decided that the Beresford issue alone will be heard on that day. Further hearing dates (March 12, 25 and 30~ 1992) were scheduled to hear the remaining issues in the grievances.. There can be no doubt that at the time, everyone's expectation was that ~the Board decision in the Beresford issue will be released in advance~of the scheduled hearing dates. Thus on October 10, 1991 the Board heard evidence on the Beresford issue and by agreement received written submissions, the last of which was received by the panel on January 8, 1992. However, before the Board could issue its decision based on the evidence and submissions before it, Mr. Ryder for the union chose to make further submissions relying on a Grievance 'Settlement Board decision which had been issued after the hearing and the written submissions in this matter 5 had been completed. This set in motion a flurry of correspondence to the Board by both counsel by way of submissions, several decisions recently issued by the Board were brought to the attention of the Board. Because of these new submissions, the Board did not issue its decision and the March 12, 1992 hearing was adjourned and used for the purposes of an executive meeting of the panel members to determine how the Board should proceed. In the most recent correspondence, Mr. Ryder had requested, inter alia, that the March.25, 1992 hearing date be used to receive submissions on yet another "new" decision of the Board (dated March 4, 1992). .Having considered all of the circumstances, the Board is not prepared to receive any further submissions, either in writing or at a hearing, on the Beresford issue. We are aware that there are numerous Beresford type eases Dending before the Board. These decisions may be released in the coming weeks and months. It is simply not appropriate for us to entertain submissions every time a decision is released. Accordingly, the Board has decided to proceed as follows: (1) It will strive to release its decision prior to the March 25, 1992 hearing date. ' (2) In so doing, it will consider all of the decisions relevant to the. Beresford issue which have been brought to our attention, as well as all of the submissions received to date. (3) Whether or not the decision in the Beresford issue has been released, and regardless of 'the o~tcome of any decision that may have been issued, the Board will convene on March 25 and 30, 1992, to determine what issues remain in dispute with regard to the four grievances. If' the Board dete~.%ines that it is appropriate to deal with any issues in dispute, it will proceed to hear those. The parties therefore must be .prepared on~ March 25, 1992 to proceed on all outstanding issues. The Board expects that its direction. to particulars/disclosure Set out above has been relating complied with. If any· dispute ~emains in that regard the Board will be prepared to deal with that as well. Dated this 18th day of March 1992 at Hamilton, Ontario N.V. Dissanayake Vice-Chair Member I. Co, tan Member