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HomeMy WebLinkAbout2017-3277.Bouchard.18-05-17 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#2017-3277 UNION# 2017-0669-0004 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Bouchard) Union - and - The Crown in Right of Ontario (Ministry of Government and Consumer Services) Employer BEFORE Reva Devins Arbitrator FOR THE UNION Alison Nielsen-Jones Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Regina Wong Treasury Board Secretariat Legal Services Branch Counsel HEARING May 11, 2018 (by teleconference call) - 2 - Decision [1] This preliminary motion arises from a grievance alleging that the Employer’s repeated requests for medical documentation amounts to discrimination and harassment contrary to the Human Rights Code and the Collective Agreement. The parties agreed to schedule this matter for arbitration on September 25, 2018 at a Joint File Review meeting held on March 7, 2018. On March 15, 2018, counsel for the Employer advised the Union that the instructing clients were unavailable on September 25 and sought consent to adjourn that date in favour of another hearing date. The Union refused and the Employer requested a teleconference call to resolve the issue. During the teleconference, the parties indicated that they were available for a hearing on October 1st. [2] Counsel for the Employer submitted that the relevant factors outlined in Sunnybrook Health Sciences Centre and ONA (Ames), (2010), 104 C.L.A.S. 54, (Stout) favoured the granting of their request for an adjournment: the matter was not urgent, as reflected by the initial scheduling six months out, the request to adjourn came very shortly after it was first scheduled and the Employer was not seeking a lengthy delay. [3] The Employer further argued that there was no prejudice to the Union or the Grievor if the adjournment were granted. While it appreciated that the Grievor would want her case heard as soon as possible, the Employer submitted that they only require a very brief adjournment to permit the instructing clients to attend a provincial meeting of payroll managers that, while not mandatory, has been strongly encouraged. - 3 - [4] The Union acknowledged that, in this case, the Employer’s request was timely and that the length of the adjournment was not an issue. Furthermore, while the Grievor will inevitably be concerned that her hearing must be rescheduled, it was not asserting that either the Union or the Grievor would be prejudiced if the adjournment was granted. [5] However, the Union maintained that all of the parties were technically available to attend the hearing on September 25th. Management was not required to attend the conflicting provincial meeting, and although their participation was encouraged, they were not in fact precluded from attending the arbitration on the set date. In these circumstances, the Union submitted that the Employer had not provided a satisfactory explanation or acceptable basis for its absence if the hearing were to proceed and the Employer’s request for an adjournment should therefore be denied. [6] The Union referred to a number of cases, including Sunnybrook, supra, in support of their assertion that the Employer had failed to provide a sufficient reason to support their request: OPSEU (Therrien) v MCSCS, June 5, 2008, GSB #2004- 3023, (Lynk); OPSEU (Marcil et al) v. MNRF, February 12, 2018, GSB #2017- 1132, (Carrier); OPSEU (Thach) v. MECC, May 4, 2018, GSB # 2016-2590, (Gee); B.C. Automobile Association v COPE, Local 378 (Johnson), (2015), 124 C.LA.S. 40, (Fleming). [7] The Union also noted that the parties had a longstanding and mutually constructive approach to consenting to adjournment requests whenever possible. In the Union’s view, there was a recent departure from this practice when the Employer objected to an adjournment that was required to allow a Grievor to attend at arbitration. - 4 - Arbitrator Carrier ultimately held that the Union had not established a sound basis for their request and declined to grant the adjournment: Marcil, supra. The Union submitted that in light of this decision, it was seeking clarity from the Board that it was not deviating from its’ established practice when considering adjournment requests as summarised in Therrien, supra. Analysis [8] The parties were in substantial agreement that the principles enunciated by then Vice Chair Lynk in Therrien, supra, have long applied before this Board. In the case before me, the most relevant principles are as follows: 1. Adjournments are a general exception to the arbitral rule that grievances are to be resolved as expeditiously as possible … 2. The authority to grant an adjournment rests within an arbitrator’s inherent powers to control and manage the arbitration hearing. This inherent power is limited only by the rules of natural justice and the express provisions in a collective agreement or a governing statute. 3. The arbitrator’s power to grant an adjournment is discretionary, shaped by whether it would be fair in all the circumstances. Determining the issue of fairness involves balancing whether the prejudice that an adjournment might cause to one or more of the parties is outweighed by the prejudice faced by the requesting party if the adjournment is not granted. 4. The length of delay, the costs, the acquisition or preservation of evidence, the quality of the notice given to the other side, the particular circumstances of the grievor, the availability of witnesses or counsel, the ability to fairly present or defend a case, the integrity of the arbitration process, and the opportunity to tailor interim remedies to offset the adverse impact of an adjournment are among the prejudicial - 5 - factors an arbitrator will consider. Real prejudice is more persuasive than possible prejudice. 5. As adjournments are an exception to the expeditious hearing rule, the longer that the adjournment would potentially be in effect for, the greater the onus on the party seeking the adjournment to justify the fairness of the request. [9] At the Union’s urging, I have considered the additional cases cited to me, including the most recent decisions of the Board in Marcil, supra, and Thach, supra. I do not interpret these decisions as representing a departure from the principles summarised in Therrien, supra. Each case will ultimately be determined on its own merits and in accordance with the facts as understood by that Arbitrator. In the end, the Board must balance the unfairness inherent in proceeding against any unfairness that might arise from the proposed delay. [10] The facts in the matter before me are not in dispute and the parties further agreed that the relevant factors to consider are those set out in Sunnybrook, supra: 1. The nature of the proceeding; 2. The timing of the request to adjourn the proceeding; 3. The reason for the request to adjourn the proceedings; 4. The length of the requested adjournment; 5. The prejudicial effect of granting or not granting the requested adjournment. [11] In this case, the Union conceded that a number of these factors are of no concern. It acknowledged that the request was timely, that the length of the adjournment was not an issue and that there was no prejudice to it or the Grievor, beyond the - 6 - Grievor’s disappointment that her hearing is somehow less important than the provincial meeting that the Employer’s instructing clients wish to attend. The primary objection raised by the Union is that the Employer has not offered a satisfactory or acceptable basis for their inability to attend on the hearing date initially agreed to by the parties. [12] Although the Employer is seeking an adjournment to facilitate full participation at a provincial meeting that is not mandatory, the discretionary nature of the attendance does not automatically mean that the request is unsatisfactory or unacceptable. In my view, none of the relevant factors cited in Sunnybrook, supra, or Therrien, supra, should be considered in isolation, but should be weighed together to determine what is a fair outcome in all the circumstances. [13] In light of the particular facts of this case, I am satisfied that the adjournment should be granted. There would be virtually no impact on the Grievor or the Union if the matter was adjourned to a new hearing date several days later. Indeed, the Union conceded that there would be no prejudice beyond the Grievor’s impression that her hearing was less important than the Employer’s meeting. Without diminishing the anxiety that can accompany the rescheduling of a hearing date, the delay in this case will be negligible. It involves a matter of days. Moreover, the request was made months ahead of time and only a week after the original date was set. [14] Management on the other hand will have to forgo participating in a province wide meeting to discuss best practises with other pay and benefits specialists. Although the Employer’s instructing clients might still be able to attend the hearing if it were not adjourned, it would be at the expense of significant work commitments that - 7 - cannot be made up at an alternate time. In these circumstances, I am satisfied that the unfairness to the Employer in proceeding on the day in question outweighs any negative impact on the Grievor or the integrity of the hearing process. [15] As I final word, I would note that these parties have always had an admirable practise of co-operation in scheduling matters before this Board, including consenting to adjournments where possible. That practise has invariably led to the efficient use of the Board’s time and the parties’ resources. It also permits the parties to focus their attention on resolving the true dispute between them. Resolution of procedural issues, including adjournments, will, on occasion, require the intervention of the Board. Wherever possible, however, the parties are encouraged to find a consensual resolution. [16] At the conclusion of the teleconference in which this motion was argued, I issued an oral decision with reasons to follow. I confirm my oral ruling: i. The September 25, 2018 hearing date is adjourned; ii. The matter will be set down for arbitration on October 1, 2018. Dated at Toronto, Ontario this 17th day of May 2018. “Reva Devins” Reva Devins, Arbitrator