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HomeMy WebLinkAbout1995-0742WALSH96_02_12 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON M5G 118 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 742/95 OPSEU # 95C928 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEM2NT BOARD BETWEEN OPSEU (Walsh) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Employer BEFORE S. Kaufman Vice-Chairperson FOR THE M.A. Kuntz GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE E. Johnson EMPLOYER Employee Relations Officer Management Board Secretariat HEARING December 15, 1995 1 DECISION On March 9, 1995, the grievor, Beverly Walsh, an employee of the Ministry of Health, grieved that she had been "discriminated against by Management, contrary but not exclu- sive to Article A of the Collective Agreement. This occured (sic) while I was assigned to my former position of Senior Accounting Clerk and as a result of the recent reorganization of the FJ.nancial Services Section." In her grievance she requested "that the discrimanation (sic) cease and desist and that remedies be made". Ms. Walsh's grievance was scheduled for a hearing before me on December 15, 1995. I was advised on that date that the grievor would not attend the hearing on that date or at any time in future, on medical advice to avoid stress, and owing to her dissatisfaction with the Union. The Union advised me that it had no witnesses other than the grievor to call, and that it proposed to enter its case by filing the grievance and a number of letters between the grievor and others, which, it advised, set out the substance of the grievor's position. It advised me that since filing her grievance, the grievor had resigned her employment with the Ministry and had appointed someone to attend the grie- vance meetings on her behalf. As well, it advised that the grievor had been employed in an Acting position at the time of the reorganization, and that the Ministry had offered to reinstate the grievor to her home position as an OAG 7. It submitted that there was no dispute that the employer had embarked upon a reorganization which had affected the grie- vor It submitted that the grievor believes that the reorga- nization had been arbitrary and that its effect upon her position was due to her age. ~ ~ The Employer confirmed that it had made the offer of reinstatement and advised that it opposed proceeding in the manner proposed by the union It submitted that the onus was upon the grievor to adduce evidence of discrimination and that in the absence of such evidence the grievance should be dismissed. It advised that should the correspondence be re- ceived into evidence, notwithstanding that the correspondence constituted hearsay, it would be obliged to call viva voce evidence in order to refute the allegations in the correspondence. On December 15, 1995 I ruled orally that under the circumstances I would not receive the correspondence and oblige the employer to present evidence, and dismissed the grievance, indicating that I would provide written reasons at a later date The following are my reasons. The grievor apparently had .ample notice of the proceed- ings scheduled for December 15, 1995 and was asked by the Union to attend on that date in order to provide viva voce evidence. She indicated her intention to the Union not to attend and directed the Union to proceed with her grievance without her. I do not consider the relationship between the grievor and the Union material to my decision. I respect the grievor's decis~on and her right not to attend the hearing. She was, I gather, under medical advice to avoid stress It is difficult to conceive of an arbitra- t~on hearing that would not cause the grievor some level of stress, and the grievor's decision was quite probably in her best interests from the point of view of her health. However, the grievor's decision put the Union, as well as the Employer, in a very difficult position indeed. There is no doubt that the union, not the grievor, is a party to this proceeding and it, and not the grievor, had carriage ~n 3 the presentation of the evidence. In theory, the Union could proceed to present the case in the grievor's absence. H~- ever, that is only theory, and practice does not always bear theory out. The nature of the grievance, discrimination on the basis of age in the context of a reorganization, and the employer's denial of the validity of the allegation, necessitated the grievor's oral evidence, and entitled the employer to test the grievor's allegations through cross-examination. Mini- mally, the grievor would have had to attend to authenticate, if not explain and expand upon the correspondence she had authored, which the Union sought to enter as part of its case. The grievor's decision not to attend the hearing, however well-taken from a medical point of view, deprived the employer of the ability to exercise its right to cross- examine the grievor on her written statements, which the Union proposed to enter into evidence. That would have denied the employer the right to a full and fair hearing. One of the primary obligations of this Board is to en- sure that its hearing processes do not violate the rules of natural justice, which rules include conducting a full and fair hearing. It appears that the grievor wanted a hearing to be conducted on her behalf to present her allegations and require the employer to answer them, but without her having to be present or to participate at any point. She may have felt she had sufficient reasons to justify that the hearing proceed in this manner. In my view, to have permitted the Union to proceed as it proposed, and oblige the employer to respond to written allegations upon which it could not cross- examine, could not have resulted in a full and fair hearing for both parties. This Board does not dismiss grievances which allege discrimination of any nature lightly or for frlvolous 4 reasons. It is regrettable that the grievor could not attend the hearing so that her complaint could be dealt with fully on its merits. This is an unfortunate and unusual situation in which the grievor's decision not to be present at any point of the hearing, for medical reasons, has rendered this grievance inarbitrable. Dated at Toronto this 12th day of February, 1996. ,.... _) I '> )) ,/ ---' ~/ ~ ~ ~.-/ / --~/ / . s';'sa~~~ufan .... . - '-- VJ.ce-ChaJ.r