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HomeMy WebLinkAbout1996-2693TONE99_03_19 O/llTARKJ EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'O/llTARKJ 1111 GRIEVANCE COMMISSION DE , SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 32(1-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 32(1-1396 GSB #2693/96, 1203/97, 1204/97 OPSEU #97D322, 97E143, 97E144 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEV ANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Raymond Tone) Grievor - and - The Crown In RIght of Ontano (MImstry of the SolIcItor General and CorrectIOnal ServIces) Employer BEFORE Nimal V DIssanayake V Ice-Chair FOR THE Nelson Roland GRIEVOR BarrIster & SolIcItor ~ FOR THE MelIssa Nixon EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat TELECONFERENCE Apnl 9, 1999 DATES Apnl 16, 1999 2 BOARD RULING Following unsuccessful mediation attempts, the hearing into these grievances commenced on March 4, 1999 and continuation dates were scheduled for April 16, June 17, 1999 and July 21, 1999 On April 9, 1999, by way of a conference call between myself and the two counsel, I dealt with a request by the union counsel to adjourn the hearing scheduled for April 16, 1999 on the grounds that he would not be able to receive proper instructions from his client in time Following a three-way discussion, the two parties agreed to an adjournment on certain conditions and the Board therefore was not called upon to rule upon the matter As I understood, and as my notes indicate, the agreement was to adjourn the hearing scheduled for April 16, 1999 on the following two conditions (a) That the employer's continuing liability would be suspended for the period of delay resulting from the union'~ request for adjournment (b) Ms Nixon made it clear that she had intended to call Ms Enright On April 16, 1999 and indicated that Ms Enright may not be available to testify on June 17th or July 2pt, 1999 because she was expected to give birth around the third week of June Ms Nixon also made it clear that it was important to her that Ms Enright, as the employer's key witness, be called first before any other witness She indicated that if Ms ~._-- 3 Enright does not testify on April 16, 1999 she may not be available for several months to testify In these circumstances, Mr Nelson acknowledged that the union understood that as a result of its request for adjournment of the hearing on April 16, 1999, the July 17th and July 21st dates may also have to be adjourned On April 16, 1999, I had a further conference call with the two counsel to deal with a disagreement about the nature of the agreement they had reached on April 9, 1999 Ms Nixon took the position that on April 9, 1999 the parties had agreed to adjourn all the scheduled hearing dates Mr Roland understood that he had agreed to adjourn only the April 16, 1999 hearing During that conversation I indicated my understanding of the agreement reached that day, as I have set out above Later the same day, I received the following letter from employer counsel by facsimile, with copy to Mr Roland among others Further to our teleconference of today's date with you, Nelson Roland and myself, I am writing to request an adjournment of the June 17, 1999 and July 21, 1999 hearing dates in the above-noted matter As ~ mentioned to you today, my primary witness in this matter will not be available because she expected to give birth within a week of June 17, 1999 I would add, that I am a little surprised that I must request this adjournment It was my understanding from our last teleconference with the same three parties and a follow-up letter from Mr Roland, that the Union had essentially requested an adjournment of all three days of hearing As I recall, Mr Roland had originally requested an adjournment of the April 16, 1999 for the April 16 hearing date and not any others I did not want to delay In calling her to testify because she would not be 4 available until several months later My other concern was the ongoing liability of the employer and how an adjournment might affect that liability In response to these concerns, I received a letter from Mr Roland stating, among other things, that Further to our conference call with the Arbitrator in respect of the request to adjourn the above- noted ca se, the Union reluctantly agrees to the following conditions (emphasis added) 1 The Employer's continuing liability is suspended during the period of the adjournment, and 2 The Union understands that the Ministry's primary witness may be unavailable for several months due to her maternity leave Based on the statements of Mr Roland, I agreed to an adjournment I understood that Mr Roland agreed to adjourn, as he put it, the case, and just the April 16 hearing day Now I find that it was only the one hearing day that Mr Roland was seeking to adjourn I can say quite plainly that I would not have agreed to adjourn the April 16 hearing date had I have known that I would be forced to seek an adjournment of the subsequent dates At any rate, as I have mentioned above, my witness will be unavailable and as a result, I would request that you grant an adjournment for the June 17 and July 21, 1999 hearing dates in this case Thank you for your attention to this matter - By facsimile letter dated the same day, Mr Roland responded as follows Further to Ms Nixon's letter dated April 16, 1999 in the above-noted ma t t e r , the Union can not consent to the Employer's request for an adjournment However, at the same time, it is unfortunate that there was a misunderstanding about the extent of the adjournment requested by the Union Ms Nixon correctly states the conditions agreed to by the Union in its letter to her However, it was always our understanding that only the 16 th 5 of April would be adjourned We were, at the same time, aware of the Employer's problem in having their maln and first witness attend and we do not resile from the conditions to which we agreed Subject to the foregoing, we understand that the discretion to grant an adjournment is ultimately in the hands the arbitrator All of which is respectfully submitted While I agree that there was no agreement at the time to actually adjourn the two subsequent hearing days, it lS clear that the union was on notice that as a condition of consenting to its request that the April 16th hearing be adj ourned, the other two scheduled days may also have to be adjourned Ms Nixon made it clear that Ms Enright may not be available for several months and that she has to be the employer's next witness The union persisted with its request to adjourn with this understanding Considering the terms of the agreement between the parties on April 9, 1999, the employer's request for the adjournment of the hearings scheduled for June 17 and July 21, 1999 is granted The Board remains - seized for purposes of continuation of the hearing at a time when the parties are in a position to do so in accordance with the terms of their agreement 6 Dated this 19th day of April, 1999 at Hamilton, Ontario ~e/~---- Nimal V Dissanayake vice-Chair