HomeMy WebLinkAbout1992-0104.Siatras.93-02-18· ' '. ONTARIO EMPLOYESDELA COURONNE
, 'i ~ CROWN EMPLOYEEs DE L'ONTARIO
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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~80,-RUE DUNDAS QUEST, BUREAU 2100, TORONTO· (ONTARIO). M5G IZ8 FACSIMILE,'TEI~COF'iE · (4 15) 326- 1396
104/92
IN THE MATTER OF AN ARBITRATION
under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Siatras)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Health)
Green's Ambulance Service
Employer
BEFORE: W. Kaplan Vice-Chairperson J. C. Laniel Member
F. Collict Member
FOR THE A. Lee
GRIEVOR Grievance Officer
Ontario Public Service Employees Union
FOR THE M. Contini
EMPLOYER Counsel
Mathews, Dinsdale & Clark
Barristers & Solicitors
HEARING December 18, 1992
Introduction
On March 18, 1 992, Dino Siatras filed a grievance claiming that he had' been
.unjustly dismissed. By way of remedy Mr. Siatras sought reinstatement and
full' retroactivity. The matter proceeded to a hearing at the Board, at which
time the union requested an adjournment. The employer object'ed to the
request, and we heard submissions from both parties with respect to this
matter. At the conclusion of the hearing we granted the request, and
advised the parties that written reasons would follow.. This award sets out
the submissions of the parties and our reasons for decision.
Union Submissions
Ms. Lee advised the Board that the the union had made many efforts, but was
Unable to contact the grievor. Mr. Siatr. as had moved without leaving, a
forwarding address. He had no listed telephone number, and. efforts to
contact him through other employees'proved equally unsuccessf, ul.' Ms. Lee
requested that the Board adjourn the matter sine die to be brought on again
by union application. In.Ms. Lee's submission, it would be appropriate in
this case for the union to give up any rights to retroactivity .between the
date of this hearing and .the union request that the Board schedule its
continuation.
Employer Submissions .'-
Employer counsel began his submissions .by noting that the.'grievor'was a
probationary employee who had completed 86 shifts in a 90-working-day
probationary period. He was not, therefore, a long-service 'employee.
Counsel pointed out that two pre-hearings had been scheduled in this case,
and that the grievor had not appeared at .either of them. In counsel's
submission, Mr. Siatras had an obligation to keep the union informed about
his whereabouts, and he had failed to' do so. Mr. Contini argued that the
union had ample notice of these proceedings, and that the employer had
consistently indicated to the union that it-would not consent to an
adjournment. AccordinglY, .counsel requested that the grievance be
dismissed.
Mr. Contini made some further submisSions with respect to retroactiVity
and other issues should the Board decide to grant the. adjournment. In his
submission, a second hearing date Should be Scheduled in the near future
instead of being adjourned sine die. Counsel argued that retroactivity
should end as of the first hearing date, and that there was a good case to be
made for retroactivitY to end at' the earlier pre-hearing dates when the
case might have .been settled.
Counsel referred the Board to various authorities, and following the' hearing
provided us with copies of relevant cases. In Taffinder 296/83 (Samuels)
a clerical error resulted in employer representatives not appearing at the
discharge grievance of Mr. Taffinder. An employer representative was
contacted, and when he arrived he explained the mistake and advised the
Board that he was unable to proceed.' It was agreed by the parties that the
employeris case would be that..the grievor's record justified discharge, but
that the culminating incident was a minor matter. Union counsel advised
the Board that th'e grievor had been out of work for a considerable period of
time and had traveled to Toronto from Windsor once to prepare the case, and
again for the hearing. The union requested the grievor's immediate
reinstate ment.
The Board reviewed :some of the jurisprudence, on adjournment .applications
and then granted the union's request; .. .
...we ruled that the employer had been given-proper notic'e
of the hearing and had a full opportunity to present its
evidence and argument; that there was no sufficient
reason for the employer's inability to on on with the case
at the appointed .time; and that the employer had failed
to show just .cause for the dismissal. The Act calls for a
"full opportunity" for each party to present its evidence
and argument, but this does not mean that the Board must
grant 'an adjournment to cure a clerical error, where 'to
do so would be unfair in all the circumstances (at 4).
It is important to emphasize the. fact that our decision
was based on a balancing of interests of both parties.
The inability of the employer to proceed at the appointed
time would mean considerable hardship for the grievor.
It would be some time before the Board could reconvene
to hear-the evidence and argument, Given that the
culminating incident was a minor matter, the grievor
should not be put to the additional emotional and
financial strain of further delay. In Grimonte, 148/78
and 176/78, the Board held that it had no power to award
Costs under the Crown Employees Collective Bargaining
Act, therefore we could not relieve the grievor here by an
award of costs. Because the grievor's past record
remains in his file, it can be used by the employer again
if there is another culminating incident. Thus the
employer has not lost the right to use the record to
dismiss the grievor if there is a further disciplinable
offence. On the other hand, if the grievor now becomes a
model employee, the employer will not suffer an
injustice in reinstating the grievor. We would not have
considered reinstatement if it were not for the fact that
the parties agreed that the culminating incident was a
minor matter. In effect, the matter before us was
discipline for a minor incident., but an incident w. hich
triggered consideration of the whole past record in
assesSing the appropriate penalty. Had the culminating
'incident been a serious offence (eg. assaUlt, on an
inmate), the Board would have been prepared to overloOk.
Mr. Benedict's .error in advising the Attorney-General of
the date of the hearing (at 6).
Employer Counsel submitted that the instant case was also an appropriate
one for the Board to deny the adjournment request given that the union had
plenty of notice of the 'hearing, and that the employer had attended .two
pre-hearings as well as this hearing at considerable inconvenience and
expense..
In an alternative submission, counsel requested costs for-the adjournment,
and he cited a number of- cases to the Board in support of this application
including the decision of the Divisional court reviewing the Taffinder case,
supra (unreported decision dated April 13, 1984). In overturning the Board's
decision, the Divisional Court foUnd that the refusal to grant an
adjOurnment dePrived one of the parties of its statutory right to be heard.
The Divisional Court also observed that an alternative the Board could have
pursued "would have been to require that the Crown compensate the GrievOr
for all expenses incurred in connection with the abortive hearing. To refuse
the adjournment outright and to proceed, as it did,', effeCtively to deal with
the grievance, was to ignore completely the principle of fairness to which
the Board's discretion must always be subject" (at 6)..Counsel submitted
that this decision recognized the Board's jurisdiction to award costs in an
adjournment case, and he requested that the Board make such an award in
this one..
Decision
After hearing the submissions of the parties, the Board adjourned to
consider this matter. It 'then reconvened and advised the parties that _the
union's request would be granted with strict conditions. The union was
given a three-month adjournment and the hearing was, in consultation with
the parties, scheduled to reconvene on April 2, 1993. The.union was advised
that the Board would not grant any further union adjournment requests, and
that if the grievor failed to appear on April 2, 199 3 his grievance would be
dismissed. The union representative indicated that if the union continued
to proVe unable to locate the grievor prior to' the next hearing date, she'
would notify employer counsel and the Board in advance of that date, and
thereby eliminate the necessity of actually reconvening'.these proceedings.
In our .view, the statute, arbitral and judicial authorities, natural justice.'
and procedural fairness require us to grant the adjournment.- Adjournment
applications are not uncommon in labour relations matter~,' and in general
there is no award of costs. In this case, all that we know is that the
grievor cannot be located. This is not a case where the grievor-has been
notified of proceedings and simply has not bothered to appear. In this case,
the grievor has reCeived no notice because the union does not know where
he is. To deny the adjournment request would be to eff. ectively deny the
union the right to be heard,-for' in the absence of. the grievor it cannot
inform itself or take instructions with respect to the fundamental issue in
dispute: the grievor's discharge from employment.
It is possible, it may even be likely, that the griev0r has abandoned his
grievance. It is also possible that there is some legitimate explanation for
his .failure to keep in contact with his bargaining agent: All that we know
is that the grievor has been discharged. He has certain statutory rights, and
the Crown Employees Collective Bargaimng Act also requires that the
parties be given an opPortunity to be heard. In similar cases the Board' has
granted union adjournment requests "to avoid any possibility of a denial of
natural justice..." (see Brockelbank 928/86 (Verity) at 2). The Divisional
Court's decision in the~ Taffinder case confirms the importance 'of this
consideration and that decision is, of course,, directly relevant to the
instant case. Accordingly, we are of the view that the 'request for an
adjournment should be granted. The fact that this is a discharge case has
figured prominently .in our deliberations.
We are also of the view, however, that it would be inappropriate to grant
the adjournment,request on the terms sought by the union. Having filed a
grievance, the grievor has a responsibility to keep in contact With his
15argaining agent. We have' exercised our discretion in the instant case to
grant a three-month adjournment. If the grievor does not contact his
bargaining agent within this period the only logical conclusion one can draw
is that he has abandoned his grievance, and should he not'appear on the next
scheduled day his 'grievance will be dismissed.
Having carefully considered the emPloyer's alternative submission with
respect t° costs, we have decided to deny that request. Assuming that the
Board has the jurisdiction to award costs, we are of the view that this is'
not an appropriate case to do so. The union is properly discharging its
duties as bargaining agent, there has been no abuse of process, and there is
no question but that the union adjournment request is made in good faith.
It is not necessary at this time to make any rulings with respect to
retroactivity should the grievance proceed and should the grievor prove
successful, we are, however, 'mindful of the employer's, legitimate
interests, and the fact that it has come prepared to proceed at both
pre-hearings and at the hearing scheduled on December 18, 1992.
Additional Observations
Employer counsel advised .the BOard that the employer intended to raise
certain preliminary issues dealing with the Board's jurisdiction in this
case. very simply, the employer intends to argue that there was no
"difference" between the parties and that the Board was, accordingly,
without jurisdiction to hear the case. The union advised the Board that it
was not prepared to deal with these preliminary issues. Normally it would
be sensible and preferable to hear and determine these issues on the first
day of hearing, and in that way make best use of the parties and the Board's
resources. However, in the absence of the grievor, it would have .been
somewhat difficult, if not impossible, to do so.for the grievor is the only
person who can advise the union of the factual underpinnings of this
dispute.' Following discussion among the parties it was agreed that this
matter could be dealt with when the Board reconvened on April Z, 1992.
DATED at Toronto this lSth daY of February 1993.
William Kaplan
Vice-Chairperson
J.C. Laniel
Member .
" I D{ssent " (Dissent attached)
F. Collict
Member
DISSENT RE: G.S.B. #0104/92 (SIATRAS)
This Member is not in concurrence with the majority in this award.
The sequence of events in this case was as follows:
1. The griever was dismissed prior to termination of a 90 day probationary period
on March 13, 1992.
2. In a grievance dated March 16, 1992 he claimed unjust dismissal.
3. On June 5, 1992 a pre-hearing was scheduled to hear the grievance. The
grievor failed to appear.
4. The ~Employer counsel requested the case to be scheduled before the G.S.B.
The request was denied and a seco'nd pre-hearing was scheduled for August 7,
1992. Once again, the gri~vor failed to appear.
5. A formal hearing at the G.S.B. was scheduled for December 18, 1992. The -
grievor failed to appear.
6. At each of the three hearings indicated above, the Union requested an
adjournment because it had been unable to contact the grievor to notify him of
the place and date of hearing.
7. HOwever, on each of these occasions the Employer had travelled from Simcoe,
Ontario. to appear at the hearings. Counsel for the Employer was in attendance
at these hearings and had been. prepared to proceed with the case. These
three occasions have involved considerable expense and inconvenience to the
Employer.
In the view of this Member, the appropriate disposition of this case by the Board is to
dismiss this grievance for the following reasons:
1. BALANCING OF INTERESTS
a) The grievor initiated the action in this case. He has an obligation to keep
his Union representatives aware of where he can be contacted in order
to proceed with the case.
b) The grievor has'a right to file a grievance concerning his termination.
However, in a consideration of the "balancing of interests" amongst the
parties,, there is a "collectivity" of interest that surely must be considered
in relation to the right of an individual who has not even completed a 90
day probationary period and who has failed to appear some nine months
after filing his grievance. These collective interests are,
i) The provincial taxpayer who must.finance the three aborted
hearings and, as a result of this award, at least one further
. hearing on April 2, 1'993; (and possibly more);
ii) . The grievor's Union representatives who have been embarrassed
on three separate occasions when they have been required to
request an adjournment;
iii) Other grievors who might have had their legitimate grievances'
pursued at the pre-hearings and the December 18, 1992 hearing;
and ·
iv) The Employer who has not only incurred the legal and travel
expenses associated with three adjournment hearings, but who is
expected to operate an ambUlance service on an ongoing basis in
recognition of the potential return of a terminated probationary
employee. ,,
3
2. ABANDONMENT OF GRIEVANCE
Approximately 9 months have passed since the grievor filed his grievance; and,
based upon this time interval - and, without any evidence to the contrary, one
can reasonably conclude that he has abandoned his grievance.
In a somewhat comparable situation in this respect, when the grievor failed to
appear for a second G.S.B. hearing, Vice-Chairman Verity commented,
"In our opinion, no useful'purpose can be served by granting a
further adjournment...having been satisfied that the Union has
made reasonabl efforts to contact the Grievor, without success,
the Board is satisfied that the Grievor has effectively abandoned
his Grievance."
(p.2 G.S.B. #928/86, BROCKELBANK)
The Brockelbank award also quoted with approval, G.S.B. #621/86, #622/87
(BROOKS),
"...the individual grievor has Control regardless of the
Union's position. It is the .(:lrievor who must brincl his case.
The Union stands ready to assist. But the Union has no
information about the circumstances involved except, what it
can learn from the grievor.
...It seems clear to us thatthe .clrievor has abandoned his .clrievance, and
therefore they are dismissed."
(underscoring added)
3. STATUTORY RIGHT OF THE PARTIES TO BE HEARD
a) As set out is section 18(2)(c) of CECBA, the grievor has the right to file a
grievance. HoweVer, he does not have a statutory right to be heard.
b) Section 19(1) of CECBA provides that the parties have the right to
present to a Board their evidence and submissions. 'The.UniOn is a
party; the grievor iS~not. The Union was present at both of the pre-
hearings and the Board hearing on December' 18, 1992 and had 'the
opportunity to be heard.
c) Mr. O. Shime, in-G.S.B.#1276/87 etc. (BLAKE et al), made the above
position abundantly clear, as follows:
"Section 19 of the Crowm Employees
· Collective Bar.~ainin.(:l Act reflects the
theoretical position that it is the union, and not
the individual, that controls access to the
arbitration process..."
Thus it is apparent .that the arbitration of
disputes is to resolve "differences" between
the "parties". Section 1 (1)(k) of the Act
defines a party as the employee organization
and the employer - an individual is not a
party."
(G.S.B. #1276/87 etc. p. 2)
(underscoring added)
and made a finding at page 7,
"Thus, there is no specific extension of the
employee's right to proceed to arbitration and
it is only "the matter" that is entitled to
proceed in accordance with the arbitration
procedure in section 19. The employee while
given the right to grieve is not specifically
given the right to proceed to arbitration."
d) Clearly, the UniOn was present at the subject hearings and had the
opportunity to be heard. In this respect, therefore, this SIATRAS case
differs from the TAFFINDER case (GiS.B. #296/83) cited at page 5 of
the majority award which was judicially reviewed and quashed by the
Divisional . Court. Our majority award at page 5 concluded from the
5
Divisional Court ruling,
"In overturning the Board's decision, the
Divisional Court found that the refusal to grant
an adjournment deprived one of the parties of
-its statutory rieht to be heard"
(underscoring added)
However, the statutory right to be heard was not denied to the Union in
this SIATRAS case.
e) In the majority award it is' argued, at page 6, that,
"To deny the adjournment reqUest would be to
effectively deny the union the right to be
heard, for in the absence of the grievor it
cannot inform itself or take instructions' with
respect to the fundamental issue in
dispute ..... "
This Member does not diSagree with this statement. However, the
G.S.B. is not an organization that can waste time and resources. (to t'he
detriment of other employees whose cases could have proceeded on the
three aborted headng dates), while awaiting the appearance of a grievor
who has filed a grievance and then fails to communicate with his union
representatives for a period of nine months.
f) It should be noted further that there were preliminary matters associated
with the Board's jurisdiction in this case of which the Union had prior
knowledge. However, the Union claimed that it was'not prepared to
proceed with these matters; notwithstandina the fact that these
preliminary obiections were contractual and associated with the
probationary status of the arievor, as opposed to the' merits of the
6
termination of employment. In the view of this Member, the Union, ~tt the
very least, should have been prepared to proceed with these preliminary
matters on December 18, 1992 at the time of the Board hearing.
4. NATURAL JUSTICE
At page 6 of the award, the majority stated that the adjournment should be
granted for various reasons, including "natural justice and procedural fairness".
However, these matters surely have been observed in this case, for the
following reasons:
· Proper notice was given to the parties concerning date, time and
location of each of the three hearings;
· There were no irregularities or objections raised by either party
cOncerning the constituency of the Board;
· Both parties were appropriately represented at the hearing by
counsel; and,
· Both parties received a hearing at the Board.
The only shortfall in the process was the absence of one witness - the grievor.
The Union (the party).made its rePreSentations to the Board; but to repeat the
earlier excerpt from G.S.B. #621/86, #622/86 (BROOKS), at page 3,
"...the individual grieVor has control regardless of the
Union's position. It is the grievor who must bring his'case.
The grievor has failed to proceed with these grieVances.in
spite of the best efforts' of the Union to help him do so ...
the grievor has abandOned his grievances."
5. SUMMARY
a) The Union has tried to communicate with the grievor concerning three
separate hearings associated with his grievance over a nine month .
7
period. The Union apparently has been unable to do so.
b) At the Board hearing on December 18, 1992 the Union' also was not
prepared to proceed with the preliminary contraCtual issues associated
with probationary status and the jurisdiction of the Board, all of which
could have proceeded in the absence of the witness ('the .(:lrievor),
inasmuch as these matters do not involve the merits of the actual
termination of the qrievor,
c) With reference to the balancing of interests,, the Ontario taxPayer has
incurred the expense of three aborted hearings associated with this case;
and now faces a fourth hearing on April 2, 1993, and possible
continuations.
d) Certainly requests for adjournment are granted by the Board. However,
valid reasons are required. The jurisprudence cited in this dissent would
indicate that the failure of a grievor to appear to assist the Union in
pursuing his case does not receive a favourable response from the
Board.
e) The statutory rights 'of the parties have been observed in this case.·
They have had an opportunity to be. heard.
. f) Natural justice and procedural fairness have been'obserVed in this case.
g). Mr. Siatras, the grievor, initiated the subject grievance. He had a ·'
responsibility to inform his Union as to where he might be contacted for
the. purpose of pursuing h'is interests. He has failed to do so.-
8
h) This case does not concern a long term employee with substantial
seniority rights and related benefits. Mr. Siatras had not even completed
the 90 day probationary pedod.
In view of all of the above, this Member would have dismissed this grievance.