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HomeMy WebLinkAbout2002-2323.Anthony et al.07-04-02 Decision Crown Employees Grievance Settlement Board Commission de reglement des griefs des employes de la Couronne Nj ~ Ontario Suite 600 180 Dundas Sl. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tel. : (416) 326-1388 Telec, : (416) 326-1396 GSB# 2002-2323,2002-2481,2002-2484,2003-0248, 2003-0249, 2004-3996 UNION# 2002-0517-0062,2002-0517-0070, 2002-0517-0072, 2003-0517-0012, 2003-0517-0013, 2002-0517 -0077 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Anthony et al.) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Dan Harris Vice-Chair FOR THE UNION Nelson Roland Barrister and Solicitor FOR THE EMPLOYER Len Hatzis Counsel Ministry of Government Services HEARING February 24, May 31, 2004; March 4, October 13 & 19,2005; January 9 & 12, February 6, March 30, June 21,2006. 2 Decision The Proceedings The grievances before me raise the question of whether certain correctional officers at the Toronto West Detention Centre are eligible for on-call pay from October 2000 to March 2003 by virtue of their membership in Institutional Crisis Intervention Team #18. The union has closed its case and the employer now brings an application for a non-suit. It was agreed that the employer not be put to its election to call evidence. The Submission of the Parties The employer submitted that a non-suit application will be successful when the responding party has failed to call some evidence to support each and every essential element of their claim. Here the claim is for on-call pay pursuant to COR 11.1 and 11.6. The employer said that there was no evidence that the grievors were required to respond within a reasonable time. It was said that the evidence was uncontradicted. There was no document that is in any way a clear direction to the grievors that they were on-call. Such a broad claim as is made here, covering nearly three years, would require clear evidence that the employer agreed that the grievors were on-call. The documents that were relied upon were in the nature of policy documents that did not establish the claim for on-call premiums. At its highest, the evidence established that the grievors were required to be reasonably available, but they were not required to respond. The employer reviewed the evidence and submitted that the teams could be filled by any ICIT member, from any institution. The grievors were allowed to travel to other parts of the province when not on shift. 3 Further, the employer said there was no evidence of anyone being disciplined for failing to respond and the grievors could opt out of being available by sending their superior an email in advance. A large issue was that the grievors had been provided with pagers so that they could be reached. They were not obliged to return to work, there is no evidence of discipline and the employer could draw on other resources. The employer submitted there were only two instances relied upon by the union as constituting discipline. The first was in May 2000 when Derek Anthony missed a page while golfing. The second was in May 2001 when he missed a page because he was in Belleville, which was out of the pager's range. It said that in neither instance did the supervisor's interrogation and use of profanities amount to discipline. The union submitted that the test on a non-suit application is not whether the union met its onus of proof. Rather, the question is whether there is some case for the employer to answer. It is not for the trier of fact to evaluate the evidence at this stage. Rather, it is a question of law whether there is "some evidence" to support the claim. Further, it is incumbent on the Board to give the evidence its most favourable meaning in support of the claim, including the drawing of any inferences raised by the direct evidence. The union reviewed the submissions made on behalf of the employer and submitted that other reasonable inferences could be drawn from the employer's propositions. For example, the fact that there are other personnel who could fill in should an ICIT member not respond is indicative of the critical role played by the ICIT team members and inferentially supports the union position that the grievors were on-call. Such an alternative interpretation is enough to defeat the non-suit allegation. Another example is the fact that pagers were given out, which entails that reasonable inference that the employer wanted to be able to page them wherever they were. It's 4 a rational deduction that they were on-call, which is enough to defeat the non-suit application. As to discipline, it is not necessary for the union to prove there was discipline, it is only necessary to prove that the employer possibly could discipline. In reply, the employer agreed that the enquiry at this stage is whether the union had provided some evidence to support the claim, not whether the union had met its overall onus. The employer reiterated its view that some evidence is required on each of the essential elements of the claim. It said the union had not done so. Also, although there was some evidence that Mr. Anthony had missed calls, there was no evidence he had been disciplined as a result. This Board's general approach to non-suit motions is set out in Re Whan et al._2003-3446 (Dissanayake) in which the following was outlined (at page 2 et seq.): 1. The Board will not put the moving party to an election of whether or not to call its own evidence as a matter of course. The appropriateness of putting the moving party to such an election will be determined based upon the considerations of expedition and fairness in the particular circumstances of each case. 2. In a non-suit motion, the standard of proof expected from a responding party is that of a prima facie case, which is significantly lower than the standard of proof on a balance of probabilities. 3. In determining whether a prima facie case has been made out, the test is whether some evidence exists to support the claim, which requires an answer or explanation from the other side. 4. In applying the standard of a prima facie case, any conflicts in or doubts about the facts must be determined in favour of the party responding to the motion. 5. In assessing the existence of a prima facie case, viva voce evidence as well as all documentary evidence before the Board must be considered. 6. In examining the evidence before it, the Board will not assess the quality, reliability or the credibility of the evidence. 7. Where a non-suit motion is granted a written decision with reasons will follow. However, where a motion is denied, no reasons, oral or written, will be issued. 5 In the context of the foregoing and having considered the evidence, the authorities cited and the submissions of the parties, I am satisfied that, without commenting on its quality, reliability or credibility, some evidence exists to support the union's claim. The employer's non-suit motion is hereby dismissed.