HomeMy WebLinkAbout1999-1744.Caron.04-09-16 Decision
Crown Employees Commission de ~~
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
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GSB# 1999-1744 2001-0664 2001-1761 2001-1884 2002-1226 2002-1733 2002-2275 2002-2296
2002-2374 2002-2399 2002-2544 2003-2922,2003-2923 2003-2924
UNION# 1999-0467-0013 2001-0467-0006 2002-0467-0004 2002-0467-0012,2002-0467-0007
2002-0467-0010 2002-0467-0009 2002-0467-0008 2002-0467-0006 2002-0467-0093 2002-0467-0094
2002-0467 -0095 2002-0467-0096 2002-0467-0097 2002-0467-0099 2002-0467-0103 2002-0467-013 7
2002-0467-0138 2002-0467-0140 2002-0467-0139 2002-0467-0141 2002-0467-0142,2003-0467-0045
2003-0467-0046 2003-0467-0047
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano PublIc ServIce Employees Umon
(Caron) Grievor
- and -
The Crown m RIght of Ontano
(Mimstry ofCommumty Safety and CorrectIOnal ServIces) Employer
BEFORE Joseph Carner Vice-Chair
FOR THE UNION Nelson Roland
Barnster and SOlICItor
FOR THE EMPLOYER Ben] amm Parry
Counsel
Management Board Secretanat
HEARING January 20 May 17 & July 5 2004
2
Intenm Order
The Employer has requested that I dIsmIss a senes of gnevances filed by Mr Jonathon Caron
wIthout proceedIng wIth a heanng on the ments of those gnevances That request, whIch I wIll
hereafter refer to as a "motIOn" was precIpItated by two factors
1 The faIlure of the Gnevor to provIde partIculars wIth respect to each of the vanous
gnevances on or before June 21 8t as prevIOusly agreed upon by counsel
2 FaIlure of the Gnevor to appear for a heanng on July 5 2004
As an alternatIve to the motIOn to dIsmIss, the Employer takes the posItIOn that, If the gnevances
are adjourned, they be adjourned on reasonable condItIOns IncludIng recogmtIOn that the delay
from July 5th onwards was precIpItated by the Gnevor LIabIlIty If any should not accrue to the
Employer for the penod occasIOned by the delay
The Back2round
ThIS matter was ongInally scheduled for heanng on January 20 2004 The proceedIngs Involved
In excess of 35 gnevances filed by the Gnevor the earlIest of whIch appears to have ansen In
1999 However that gnevance stands alone the balance of the gnevances beIng filed In 2001
and 2002 In any event, the proceedIngs commenced on January 20 2004 and the partIes met
WIth the Vice-Chair In the hopes of findIng a medIated resolutIOn. A reVIew of the outstandIng
matters made It clear that not Included as a matter before the Vice-Chair was, amongst other
thIngs, the Gnevor's termInatIOn. The PartIes met agaIn on May 17 2004 at whIch tIme a further
effort was made to resolve all outstandIng matters IncludIng the Gnevor's termInatIOn. The
partIes had agreed that the Vice-Chair could deal wIth that Issue In medIatIOn but there was no
agreement or order up to that tIme that It be consolIdated for the purposes of arbItratIOn. At the
conclusIOn of the May 1 ih proceedIng, counsel had agreed that they would exchange partIculars
3
on or before June 21 2004 so that they would be In a better posItIOn pnor to the next scheduled
date ofheanng, July S 2004 to deal wIth any prelImInary Issues such as
1 consolIdatIOn of other outstandIng gnevances IncludIng the Gnevor's termInatIOn,
2 the onus on the ments and an assessment as to whIch party should proceed first;
3 dIscussIOns or submIssIOns wIth respect to the sufficIency of partIculars
In addItIOn to the foregoIng It IS Important to note that the RegIstrar of the Gnevance Settlement
Board dIstributed notIce of proceedIngs respectIng both the May 1 ih and July Sth dates on or
about Thursday February 19th 2004
As mIght be ImagIned, the Employer had, pnor to the consolIdatIOn of the Gnevor's termInatIOn,
lIttle to provIde In the way of dIsclosure or partIculars NotwIthstandIng that, on June 21 2004
the Employer dId provIde the Umon wIth an Indexed senes of documents by way of dIsclosure
None of that has been shared wIth the Vice-Chair up to the present tIme nor has there been any
challenge by the Umon as to the adequacy of sufficIency of that dIsclosure In the letter whIch
accompamed the dIsclosure document, Mr Parry for the Employer noted that he had yet to
receIve any documentatIOn or partIculars from the Umon wIth respect to the matters then In
Issue That letter set the stage for the Issue now before me It reads as follows
"Pursuant to the Parties discussions with T 'ice-Chair J Carrier at the hearing dated Ala, 17 2004
please find the attached documents with an accompanving index.
The Emplover reserves the right to provide further documents to the Grievance 'lettlement Board
and the [Tnion should additional documents come to our attention hefore or during the hearing
On Ala, 17 2004 the Parties agreed to provide full disclosure and particulars for each grievance
on or hefore June 21 2004 That date was identified in order to provide the Parties with sufficient
time to identifi GIn preliminan issues and prepare for the Juh 5 2004 hearing date. The
Emplover has not received GIn disclosure or particulars as oftoda, and, as a result, will be
seeking to dismiss the grievances currenth before the Board at the Juh 5 2004 hearing In
addition, the [ nion has not identified whether or not it will be seeking to consolidate the Grievor's
grievance of his termination.
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Finalh on Juh 5 2004 the Emplover will he taking the position that it should not he prejudiced
h" GIn dela" resultingfrom the [Tnion'sfailure to provide particulars. For greater clarin in the
event that there is GIn liabilin on the Emplover (which is not admitted and denied) the Emplover
will not be liable for GIn monies, including interest after Juh 5 2004 caused b" this dela" "
When the matter reconvened on July 5 2004 there had not yet been a response to the request for
partIculars and, more Importantly the Gnevor dId not appear at the heanng. Dunng the course
of dIscussIOns between counsel and the Vice-Chair Mr Roland, counsel for the Umon, was able
to contact the Gnevor He then relayed the folloWIng InformatIOn
4 He hImself was unaware that the Gnevor was III untIl he attempted to contact hIm that
mormng. The Gnevor advIsed hIm that he had been sIck for a week and contInued to be
unwell such that he could not attend proceedIngs that mormng. Mr Roland dId not
InqUIre Into the nature of the Illness due to hIS own sensItIvIty to pnvacy concerns
5 The Gnevor had e-maIled Mr Roland's office on July 1 st to InqUIre concermng the
folloWIng
(a) to confirm the date of the July heanng; and
(b) to dIscern whether or not hIS attendance would be reqUIred.
As luck would have It Mr Roland's office was closed through the long weekend commenCIng
Thursday July 1 st untIl the Sunday July 4th accordIngly Mr Roland was unaware of that e-maIl
untIl the mormng of these proceedIngs In any event, on speakIng wIth the Gnevor the latter
expressed hIS dIsmay that Mr Roland's office had not responded to hIS e-maIl and that he had the
mIstaken understandIng that hIS presence would not be reqUIred SInce the PartIes would be
dealIng wIth matters of process only AddItIOnally Mr Roland IndIcated that the Gnevor had
Indeed e-maIled some InformatIOn concernIng the reqUIred partIculars but that hIS office had
been unable to open the attachment to the e-maIl There was no InformatIOn provIded as to when
the Gnevor sent the e-maIl contaInIng the attachments to Mr Roland or as to why the problem
5
could not have been corrected on or before June 21 st the date by whIch partIculars were to have
been exchanged.
The Ar2ument and the Decision
The Employer submItted several cases In each of whIch a Vice-Chair of the Gnevance
Settlement Board had dIsmIssed gnevances due to the faIlure of a Gnevor to appear at a heanng
of the Board, however In the first of those cases, MartIn, G S.B FIle No 0733/01 0734/01
(Bloch) the gnevor had not only faIled to appear on a prevIOUS occaSIOn but the partIes had
entered Into a Memorandum of Agreement to the effect that the gnevor's faIlure to appear In the
future would result In a dIsmIssal of the gnevances The second case InvolvIng the gnevor
Slusarchuk, G S.B FIle Nos 1936/95 et seq (0 V Gray) the Vice-Chair had Issued an earlIer
order when the gnevor had faIled to appear for prevIOUS proceedIngs The order stIpulated
amongst other thIngs that "her faIlure to attend barnng exceptIOnal cIrcumstances, would be
grounds to dIsmIss the matter" The thIrd case decIded by Vice-Chair Barry FIsher InvolvIng the
gnevor Van Laere In G S.B FIle No 951/92, was dIsmIssed wIthout any earlIer faIlure by the
gnevor to attend a heanng. However In that case the umon was unable to provIde any
explanatIOn whatsoever for the gnevor's absence and, more Importantly the gnevance concerned
an allegatIOn of unJust dIscIplIne The Vice-Chair dIsmIssed the gnevance only "upon the
express undertakIng by the employer to the Board that the events of the day In questIOn namely
Apnl2, 1992 were not Intended to be dIscIplInary at the tIme nor would be relIed upon In future
proceedIngs as dIscIplInary " In the cIrcumstances, It IS my vIew that none of those cases are
of assIstance In determInIng whether or not thIS senes of gnevances should be dIsmIssed for the
Gnevor's faIlure to appear on July 5th
I have consIdered the InfOrmatIOn provIded by counsel as well as theIr submIssIOns and
arguments and conclude that thIS IS not a case In whIch dIsmIssal for the Gnevor's faIlure to
6
appear would be appropnate In the case before me, the Gnevor had appeared on two prevIOUS
occaSIOns and had not IndIcated In any way that he dId not Intend to co-operate wIth the Umon In
the preparatIOn or presentatIOn of hIS case nor dId he show any reluctance to partIcIpate In
proceedIngs WhIle there may be some doubt as to the legItImacy of the reasons he gave to Mr
Roland for hIS faIlure to attend on July sth extendIng to hIm the benefit of the doubt, he mIght
have been somewhat confused concernIng the process, thIS IS especIally so SInce behInd the
scenes, counsel were contInuIng In theIr efforts to resolve all outstandIng matters IncludIng hIS
termInatIOn Although the Gnevor's termInatIOn was not officIally before me as at the July sth
date, I understand that some of the Issues Involved In those gnevances whIch were before me
wIll be relevant to the termInatIOn Issue If as and when It does proceed. Therefore, dIsmIssal of
the earlIer gnevances would lIkely preJudIce the termInatIOn gnevance Finally I am not
satIsfied that the Gnevor's faIlure to appear reflected a refusal to attorn to the JunsdIctIOn of the
Gnevance Settlement Board. (In thIS regard see Re Toronto (CIty) and CUPR Loc. 79 (Warner)
(1998) 73 L.AC (4th) 412 (Craven) On the other hand, the CIrcumstances do ment the
ImposItIOn of some stnctures on the Gnevor's future conduct. I wIll deal wIth those later In thIS
Award.
ThIS bnngs me to the second basIs upon whIch the Employer sought to have the gnevances
dIsmIssed. That aspect of the motIOn was premIsed on the Gnevor's faIlure to provIde partIculars
In a tImely fashIOn. AgaIn, there had been no prevIOUS order of the Board that partIculars be
provIded, however the agreement of counsel to exchange partIculars on or before June 21 st was
clear and unambIguous The explanatIOn for the faIlure to provIde those partIculars as
undertaken IS agaIn questIOnable E-maIl as a form of commumcatIOn IS sImply one of a vast
array of methods whIch are avaIlable In today's world. The Gnevor could easIly have remedIed
that faIlure In the cIrcumstances, that aspect of the Gnevor's explanatIOn IS less than
7
satIsfactory especIally sInce the partIculars were stIll unavaIlable on the July 5 heanng day
NotwIthstandIng that, SInce counsel were dunng the same tIme frame engaged In settlement
dIscussIOns, I am satIsfied that the Gnevor mIght have mIsunderstood the urgency and the need
for hIm to provIde those partIculars In a tImely fashIOn. There IS lIttle precedent for a decIsIOn to
dIsmIss for want of partIculars except where there has been faIlure to comply wIth an order of the
Board and, but for those partIculars, the case could have proceeded. [(see Klonowski et al
G S.B no 1799/99 et seq (FIsher)] SInce that IS not the sItuatIOn before me, I wIll not dIsmIss
the gnevances on the basIs only of the faIlure to partIculanze at or before June 21 st However
the responsIbIlIty for faIlure to do so and the delay occasIOned from that faIlure lIes dIrectly at
the Gnevor's doorstep The Employer In the cIrcumstances, ought not to suffer any lIabIlIty for
the consequences of that delay I have attempted to take that matter Into consIderatIOn In my
final Order whIch IS set out below
The Decision and Order
In addItIOn to those gnevances whIch were before me up and IncludIng July 5 2004 the PartIes
agreed on that date to consolIdate wIth those matters three other gnevances IncludIng the
Gnevor's dIscharge Those matters are represented by OPSEU Nos 0045-0ctober 16/03 0046-
October 4/03 0047-0ctober 4/03
For the reasons set out above, the Umon IS ordered to provIde to the Employer partIculars as to
the facts and Issues In dIspute before me IncludIng those addItIOnal gnevances noted above and
whIch I hereby confirm as consolIdated wIth those prevIOusly before me Those partIculars need
not Include "wIll say" statements from the Gnevor however they shall set out the nature of the
conduct of the Employer whIch IS gneved as well as the Party or PartIes engagIng In that conduct
together wIth the date and tIme of that conduct. As to a tIme frame for those partIculars, most of
that InformatIOn ought already to have been In Mr Roland's hands However SInce none of that
8
mformatIOn has been shared eIther wIth Employer counselor wIth the Vice-Chair up to the
present tIme It IS unclear as to whether or not It mcludes the mformatIOn I have ordered and as to
whether It IS m presentable form In the cIrcumstances, I wIll allow three weeks from the date of
release of thIS Award for the Umon to provIde that mformatIOn to the Employer Accordmgly
the Umon IS hereby dIrected to provIde those partIculars wIthm three weeks of the date of the
release of thIS Award.
In addItIOn to the foregomg, It IS my order and dIrectIOn that the Gnevor's faIlure to attend any
future proceedmg of thIS Board, barnng exceptIOnal cIrcumstances, wIll be grounds for dIsmIssal
of all matters then before me
Fmally as I have mdIcated earlIer m thIS Award, thIS matter has been delayed as a consequence
of the Gnevor's faIlure to provIde to Umon counsel m a tImely fashIOn those partIculars whIch
were to be conveyed to the Employer on or before June 21 st AddItIOnally the Gnevor's faIlure
to appear on July sth resulted m further delay of these proceedmgs In the cIrcumstance, It IS my
Order and DIrectIOn that m the event of any findmg m favour of the Gnevor at the conclusIOn of
the proceedmgs on the ments of the subJect gnevances, any damages to whIch he mIght
otherwIse be entItled wIll be adJusted to reflect the delays dunng the proceedmgs attnbutable to
hIS conduct.
For the reasons set out above the motIOn to dIsmIss by the Employer IS not successful The
request for adJournment by the Umon succeeds subJect to the condItIOns I have set out above
DATED at Toronto thIS 16th day of September 2004