HomeMy WebLinkAbout2017-1132.Marcil et al.18-02-12 Decision
Crown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB#2017-1132, 2017-1133
UNION#2017-0727-0004, 2017-0727-0005
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Marcil et al) Union
- and -
The Crown in Right of Ontario
(Ministry of Natural Resources and Forestry) Employer
BEFORE Joseph D. Carrier Arbitrator
FOR THE UNION Alex Zamfir
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER Caroline Cohen
Treasury Board Secretariat
Labour Practice Group
Senior Counsel
TELECONFERENCE February 8, 2018
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Interim Decision
[1] The matter before me by way of teleconference on February 8, 2018 was a
Motion by the Union that a hearing scheduled for February 15, 2018 be
adjourned due to the unavailability of one of two Grievors.
[2] Although it was originally believed that both Grievors would not be available, it
turned out that one could attend the hearing.
[3] The issue on the merits are claims for lost overtime opportunity for these two
pilots which was allegedly occasioned when their supervisor worked hours which
otherwise would have been available for them on overtime. Accordingly, the
claim(s) arise from similar, or rather, the identical set of circumstances.
[4] The Union was seeking an adjournment in order to have both Grievors present
for rescheduled proceedings as a matter of natural justice and to deal with any
issue arising in relation to the apportionment of any remedy which might be
awarded.
[5] In the circumstances set out below and for the reasons enumerated there, I
declined that request.
The Facts and Timing
1. The hearing of February 15, 2018 had been set on September 14, 2017 and
both Grievors had been so advised.
2. The Grievor “A” had, in the meantime, applied for and accepted a position in a
northern outpost. That position involved two (2) weeks on duty and two (2)
weeks off on a rotating basis.
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3. We were advised that Grievor A’s schedule of two weeks working included
the February 15 hearing date.
4. There was no explanation why or if Grievor A could not have had his work
schedule arranged such that his two weeks off would have included February
15th thereby allowing him to attend proceedings.
5. The Employer advised that the issue involving the supervisor will likely recur
in the upcoming fire season. He is required to perform relevant pilot duties
annually in order to maintain his credentials. An adjournment now would be
prejudicial with respect to the employer’s ability to manage the issue in the
upcoming fire season.
6. Grievor A did contact his Union in early January to advise of his unavailability
for February 15th.
7. The request for adjournment was not put to the employer until February 2,
2018. In all the circumstances including potential prejudice of a delay, the
employer declined that request.
Decision
[6] Having considered the information provided and the submissions of counsel, I was
satisfied that the Union’s Motion to adjourn should be and was declined for the
following brief reasons:
(i) There was no explanation why Grievor “A” accepted a two week work
schedule which included the hearing date here nor was there evidence that
he could not have made alternate arrangements with the other Employer.
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(ii) The facts on the merits are similar, if not identical, for both Grievors and may
even be the subject of an agreed statement by the Parties.
(iv) The other Grievor will be available for the proceedings and can testify should
that be necessary.
(v) Any issue as to apportionment of remedy as between the Grievors can easily
be remitted to the Parties for consideration and resolution failing which it
could be referred back for final determination.
(vi) There is some legitimate concern with respect to prejudice to the employer
regarding a delay impacting upon its ability to manage the issue in the
upcoming fire season.
(vii) Finally, the Union has not established a sound basis for the adjournment.
The Grievor knowingly made himself unavailable for the February 15, 2018
proceedings. The explanation for his unavailability was not satisfactory or
acceptable to excuse him from attending.
(viii) Given the nature of the issue, the simplicity of the factual situation and the
availability of the other Grievor, the matter may proceed in the absence of
Grievor A without risk that proceeding in his absence would entail a denial of
natural justice.
[7] In the circumstances, this was not a case in which I was persuaded to exercise my
discretion. The Union motion to adjourn was, therefore, declined.
Dated at Toronto, Ontario this 12th day of February 2018.
“Joseph D. Carrier”
_______________________
Joseph D. Carrier, Arbitrator