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HomeMy WebLinkAbout2007-2736.Amodeo.08-04-24 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB# 2007-2736 UNION# 2007-0310-0037 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Amodeo) Union - and - The Crown in Right of Ontario (Ministry of Labour) Employer BEFOREVice-Chair Reva Devins FOR THE UNION John Brewin Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Simon Heath Counsel Ministry of Government and Consumer Services WRITTEN April 15, 17, 18 & 21, 2008. SUBMISSIONS 2 Decision This motion is brought by the Employer for an Order compelling the grievor to attend on the first scheduled day of arbitration. Background The grievor was terminated on October 26, 2007 and filed a grievance on November 5, 2007 challenging his discharge. He also filed a Duty of Fair Representation complaint against OPSEU under Section 74 of the Ontario Labour Relations Act and a Section 50 complaint against the Ministry. Submissions have been filed by all parties at the Ontario Labour Relations Board; no decision has been released to date. A date for mediation at the Board was set for February 29, 2008. The grievor did not attend and the mediation was adjourned. The precise communications between the parties with respect to the grievor?s absence was a matter of some dispute. The Union stated that the Employer was advised prior to the hearing that the grievor was ill and unable to attend. In the Union?s recollection of events, it requested the Employer?s consent to adjourn the mediation and the Employer refused. Counsel for the Employer took the position that the Union advised that it did not think the grievor would attend the mediation, however, there was no mention of illness, nor was an adjournment requested. Submissions The Employer submits that the grievor has consistently demonstrated his unwillingness to participate in proceedings at the GSB: -he has indicated a preference for pursuing a remedy before the OLRB; -he did not attend on February 29, 2008 for mediation at the Board; and -he did not attend scheduled pre-disciplinary meetings, giving no notice or explanation for his absence. The Employer therefore seeks an order compelling the grievor to attend the GSB, but for a documented medical illness. The Employer submits that an order is required to prevent great expense to the parties in the event of another missed day. It was further submitted that the order 3 would be an appropriate means of voicing the Board?s disavowal of the grievor?s apparent effort to ?forum shop? between the GSB and the OLRB. The Union objects to the issuance of the order. It notes that the Union, not the grievor, is the party before the Board. Moreover, as a discharge case, regardless of whether the grievor attends the first day of hearing, it is the Employer who will open with the presentation of its case. In the Union?s submission, should the Employer wish to call the grievor as a witness it can request a summons to compel his attendance at that time. In any event, the grievor has advised of his intention to attend the hearing and there is no basis to conclude that he will not do so. In the Union?s view, the history of this matter does not support the need for the order requested by the Employer. April 29 is the first scheduled day of arbitration. The only previous day at the Board was intended for mediation. The grievor advised the Union the day before the scheduled date that he was ill and unable to attend. With respect to the grievor?s conduct during the pre- disciplinary process, the Union maintains that this would normally be considered privileged, is irrelevant and should not be considered on this application. Finally, the Union submits that the Employer?s request is unprecedented and goes against the Board?s practice. Decision Having considered the submissions of the parties, I am not prepared to issue an order compelling the grievor to attend the first day of arbitration. In my view, the order requested by the Employer is most unusual and would require an extraordinary circumstance for me to grant it. The Employer has not cited any case law in support of its request. More importantly, it has not identified the impact that the grievor?s presence or absence will have on its capacity to present its case. The Employer has suggested that the grievor has demonstrated by his previous conduct that he does not intend to participate in these proceedings. In my view, that conclusion is highly speculative. There is very little evidence before me, and what evidence is available is inconclusive. 4 I agree with the Union that it is neither relevant nor appropriate for me to consider the grievor?s attendance at the pre-disciplinary meetings scheduled by the Employer. Aside from the general matter of privilege, I have virtually no information before me regarding the number or circumstances of those meetings. With respect to the grievor?s failure to attend at mediation at the GSB, I note that the evidence in this regard is in dispute, in particular what was communicated to the Employer at the time. In the end, I do not consider it necessary to determine the nature of the pre-mediation exchange between the Union and the Employer. It is sufficient for the purposes of this motion that the Union has provided a credible explanation for the grievor?s absence and has confirmed that the grievor intends to attend at the next scheduled day of these proceedings. While his previous absence was unfortunate and no doubt frustrating for the Employer, I cannot conclude that the grievor?s behavior was a clear demonstration of his refusal to participate in the Board?s process. The Employer also suggests that the grievor is ?forum shopping? and that because he has filed complaints with the OLRB it is unlikely that he will participate in the arbitration of his grievance at the Board. Whatever the grievor?s intention was, this Board has consistently held that it is the Union, not individual grievors, who have carriage of grievances before the Board. The Union has indicated that it will be ready to proceed on the first day of the hearing. Moreover, despite the Employer?s view of the grievor?s conduct, the Union has confirmed that it has contacted the grievor and he has indicated that he intends to attend the arbitration proceedings when they commence. In the event that the grievor does not attend and the Union seeks an adjournment, the Employer will have the opportunity to object at that time. That, however, is appropriately dealt with when and if it arises. Undoubtedly, as has already been suggested by the parties, many days of hearing will be required to complete this arbitration. I am not persuaded that there is any urgency that would currently justify an order compelling the grievor?s presence. Typically, a good deal of the first day of arbitration is spent dealing with preliminary issues and hearing opening argument. In the event that evidence is called on April 29, this is a discharge grievance and the Employer will be called upon to adduce its evidence first. The Employer has not suggested that it intends to call the grievor as a witness and has not asked for a summons to compel his attendance in that capacity. Nor has it referred to any other way in which it might be prejudiced if the grievor does not attend on the first day of arbitration. Although it has suggested that it is seeking this order to 5 prevent another wasted day before the Board, the Employer has not identified any impediment to its ability to open its case in the absence of the grievor. At this stage of the proceedings, I am not persuaded that an order should be issued compelling the grievor?s attendance. The Employer?s motion is dismissed. rd Issued at Toronto this 23 day of April, 2008: Reva Devins Vice-Chair