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Home My WebLink About1995-0935LANDON97_11_12 - ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS t80 DUNDAS STREET WEST, SUITE 800, TORONTO ON MSG tZ8 TELEPHONErrELEPHONE (418) 328-1388 180, RUE DUNDAS OUEST BUREAU 800, TORONTO (ON) M6G tZ8 FACSIMlLEffELECOPIE (418) 32G-13~ GSB # 935/95, 2S1/96, 1167/96, 257S/96, 2579/96, 25S0/96 OPSEU # 95E046, 96B512, 96B979, 97B155, 97B156, 97B157 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Landon) Grievor - and - the Crown in Right of ontario (Ministry of Transportation) Employer BEFORE R.H Abramsky Vice-Chair FOR THE R. Blair UNION Counsel Ryder, Wright, Blair & Doyle Barristers & solicitors FOR THE L. Marvy EMPLOYER Counsel Legal Services Branch Management Board Secretariat -,* HEARING September 10, 1997 October !O, 1997 INTERIM ORDER At the start of hearing In this case, the Employer moved to consolidate a grievance, filed on behalf of the grievor, Robert Landon, dated August 28, 1997 The Union opposed that motion and arguments were heard, with the Board reserving judgment. This Interim Order addresses that motion to consolidate. At present, there are SIX grievances before me. The first IS dated June 13, 1995, which alleges a vIOlatIon of Article A of the col1ectlve agreement and seeks accommodation due to disability The second grievance, dated January 4, 1996, also al1eges a violation of Article A and 18, ansmg from the alleged failure of the Employer to provide the gnevor with a working toilette which was required by the grievor's dIsability The third grievance, dated July 4, 1996, alleges a vIOlatIon of ArtIcles A and 18, ans10g from a report entItled "Mimstry of TransportatIon Conflict Assessment and Resolution for Mr Robert Landon" In that gnevance, the gnevor al1eges "cont1Oued and ongo1Og discnm1Oation, harassment and ill treatment by the Employer " The fourth gnevance, dated November 22, 1996, alleges a Violation of ArtIcle A, and 1Ovolves a claIm of harassment while on leave of absence, speClfica11y by bemg required to attend a meetmg at work. It also refers to "the cont1Oued and ongo1Og harassment and ill treatment by the Employer " The fifth gnevance, dated February 26, 1997, alleges a violation of Article 42.10 of the col1ectlve agreement 10 that the Employer adVIsed the gnevor that he would surplussed upon hiS return to work, whether the return was 2 to full-tune or part-time work. The sixth gnevance, dated March 24, 1997, alleges a ViolatIOn of Article 22 in that the Employer failed to follow the required steps of the grievance procedure and instead, advanced his gnevances directly to arbitration. As explamed by counsel for the Union, these grievances stem from the grievor's disabihty and need for accommodation and Involve actions taken by management to undermine the gnevor due to his disability and in retaliation for filing gnevances. The grievance which the Ministry seeks to have consolidated With the six grievances before me is dated August 28, 1997, and asserts a VIolation of Article 3 (formerly, Article A) It alleges that Mirustry vehicles were seen near the gnevor's home, for no busmess purpose, and then left once seen by the gnevor In other words, It asserts that the Mimstry surveilled the gnevor Positions of the Parties The Employer contends that this latest grievance should be consohdated With the others InvolVIng Mr Landon. It asserts that each involves an assertIOn that the gnevor has been discnminated agamst, and the alleged surveillance IS Just one more alleged InCident. In its View, the grievances form a "senes of transactions" all involving an alleged pattern of diSCrImination, and asserts that it would be inappropriate to have another board hear this grievance when all of the background eVIdence is before me. In support of its pOSItIOn, the 3 Employer cites to OPSEU (Pilla) and Ministry of Finance, GSB No. 1284/94 (Gorsky, 1996) The Umon contends that this grievance should not be consolidated, It asserts that It does not involve an occurrence at the workplace and IS factually and legally severable from the other grievances. It asserts that there must be some point at which additional grievances can no longer be added, or the parties would never know when a dispute was finished. In terms of any potential duplication of evidence, the Union submits that it would not be its intent to recall the evidence presented here but rely on the findings of fact found by this Board. Decision In Piva, supra. the GSB's Practice Note regarding consolidation of cases, dated April 11, 1986, was set forth. It states as follows. WHERE ORDER MAYBE MADE Where two or more proceedings are pending before the Grievance Settlement Board and it appears to the Gnevance Settlement Board that, (a) they have a question oflaw or fact in common, (b) the relief claImed in them arises out of the same transaction or occurrence or senes of transactions or occurrences, or (c) for any other reason an order ought to be made under thIS rule, 4 the Grievance Settlement Board may order that, (d) the proceedings be consolidated or heard at the same time or one immediately after the other; or (e) any of the proceedings be, (I) stayed until after the determination of any other of them. Under this standard, the grievance dated August 28, 1997 should be consolidated. Although it involves an occurrence outside of the workplace, the basis of the claim is the alleged pattern and practice of discrimination and harassment by the Ministry due to the gnevor's disability and grievances. It is another occurrence in a "senes of occurrences" witlun the meaning of the GSB's Practice Note, and certainly has a question of law in common with the other gnevances -~ whether what allegedly took place violated the nondiscrimination provisions of the collective agreement. Although the specIfic facts at Issue ~ the alleged surveillance - are distinct, the legal issue IS the same and can best be decided In the context of determmmg what has occurred smce the gnevor's disability Accordmgly, It makes sense for tlus Board to hear this matter With the other grievances ofMr Landon. Further, as a practical matter, It does not appear that the eVidence required to deal with the alleged surveillance gnevance will take much additIOnal heanng tIme, Certainly, It should take less time than a de novo heanng, 5 In so ruling, however, I agree WIth uOlon counsel that there must be some fimte point at which new allegations may not be raised. Without some cut off, a heanng may become endless. That point, in my view, has now been reached and any new claims by the grievor would be subject to a very high degree of scrutmy before they could be consolidated here. For the foregomg reasons, I order as follows: The gnevance of Mr Landon, dated August 24, 1997, is consolidated wIth the other grievances ofMr Landon. Dated this 12th day of November, 1997 P-IJU.. H rAb}?411~ di Hammer Abramsky, j e-ChaJr '. 6