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HomeMy WebLinkAbout2002-0474.Vangou.04-01-15 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2002-0474 UNION# 02A401 02A402 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (V angou) Grievor - and - The Crown In RIght of Ontano (Mimstry of TransportatIOn) Employer BEFORE Nimal DIssanayake Vice-Chair FOR THE UNION Hilary Cook Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER Sunee1 Bahal Counsel Management Board Secretanat HEARING January 7 2004 2 DECISION The following written ruling and reasons therefor are issued at the request of the employer, confirming an oral ruling made at the hearing on January 7, 2004 The hearing into a grlevance filed by Ms Emma Vangou alleging that the employer had discriminated against her on the basis of her disability and because of her trade unlon activity commenced on July 8, 2003 The unlon proceeded with its evidence first On December 9, 2003 the unlon called Ms Judy Love as its second witness It suffices to note that during her examination In chief Ms Love testified that she had an illness related absence and that she had submitted "medical forms" filled out by her physician and further that the employer accommodated her with no problem In accordance with the physician's recommendations When unlon counsel indicated that she had completed the examination-in-chief, the parties agreed that the cross-examination of Ms Love will be postponed until the next hearing day Upon agreement the examination of In chief of the union's next witness, Mr Alex Papadopoulos, was taken up out of order The Board was advised that at the end of the day, the unlon requested that the employer produce the "medical forms" which Ms Love had testified about 3 When the hearing resumed on January 8, 2004, the Board was advised that the employer had produced some of the medical forms In question, but that there may be others which the employer was attempting to retrieve from the government archives Union counsel requested that, even though she had indicated the preVlOUS day that she had completed her examination-in-chief of Ms Love, she be allowed to continue her examination-in-chief once all of the available medical forms had been produced by the employer The employer objected Counsel submitted that from the outset the union's position was that the grlevor had been subjected to differential treatment and that the request for the medical documents should and could have been made earlier In the alternative, unlon counsel ought to have reserved the right to continue her examination-in-chief of Ms Love Neither was done Upon being questioned by the Board as to what prejudice the employer would suffer if the union's request lS granted, Slnce the employer had not yet commenced its cross-examination of Ms Love, employer counsel submitted that subsequent to Ms Love's testimony-in-chief, the employer had cross-examined the union's next witness Mr Papadopoulos, and that having listened to that the unlon was now In a position to "reconstruct" Ms 4 Love's evidence to its advantage and to the employer's detriment The Board orally ruled that the unlon will be glven a limited right to re-open its examination-in-chief of Ms Love Specifically, any further examination of Ms Love would be restricted to the medical documents submitted to the employer upon her return to work, circumstances surrounding their submission and the employer's response, if any, to the same The Board specifically ruled that the unlon will not be permitted to question the witness on any areas already covered or areas it could have reasonably covered without the benefit of the documents in question In applying rules of procedure, including rules of evidence, fairness must be the determinative factor The key factor lS that while the unlon had indicated that it had completed its examination-in-chief of Ms Love, the employer had not yet commenced its cross-examination In this case therefore, the request to "re-open" the examination by the unlon, lS really a request to continue In the Board's experlence, it lS not at all uncommon that a counsel, having closed an examination of a witness would indicate that he or she had forgotten to ask questions on a certain matter and would seek leave to do so As long as the cross-examination had not 5 commenced, the Board would always grant leave, because there lS no prejudice to the other party In the present case, fairness lS even more In favour of allowing the union's request This lS not a case where unlon counsel inadvertently omitted or forgot to question Ms Love about the medical forms She could not have questioned Ms Love on the forms because the forms were not available The mistake the unlon counsel made was the failure to reserve the right to continue her examination upon receipt of production Despite that omlSSlon, In the particular circumstances here, where the employer had not yet commenced its cross-examination of Ms Love, it would be unduly technical to deny the request of the unlon The only potential prejudice the employer was able to point out was that the unlon has now had the opportunity to listen to its cross-examination of Mr Papadopoulos and potentially can "reconstruct" Ms Love's testimony through further examination If that lS a real concern, the Board's ruling addresses it The only examination the unlon will be allowed relates to submission of medical documents upon return to work from an illness Mr Papadopoulos' testimony did not even touch upon that subject matter Therefore, glven the restricted right glven to the unlon, Mr Papadopoulos' testimony, including the cross-examination, cannot have any relevance to the examination of Ms Love allowed by the Board's 6 ruling The Board's ruling avoids undue technicality, while at the same time ensuring that neither side is prejudiced It lS for the foregoing reasons, that the Board made its oral ruling Dated this 15th day of January 2004 at Toronto, Ontario ~ .. 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