HomeMy WebLinkAboutKnerr 19-06-28IN THE MATTER OF AN ARBITRATION
BETWEEN:
Kawartha-Haliburton Children’s Aid Society
-and-
Ontario Public Service Employees Union
Local 334
Grievance of Krista Knerr
Lorne Slotnick, Arbitrator
Representing the Employer – Frances Gallop
Representing the Union – Andrew Mindszenthy
Hearing – by conference call, June 21, 2019.
[2]
A W A R D
This grievance arises from the termination of employment of Krista Knerr. After the first
hearing day and before the second scheduled date, the union withdrew the grievance. An issue
has arisen regarding whether the withdrawal should be considered “without prejudice,” or
whether the grievance should be dismissed “with prejudice.”
The matter was heard by conference call, with documents provided beforehand and further
submissions made afterward.
Background
The grievance was filed in November 2018, alleging a breach of the collective agreement, the
Human Rights Code and the Occupational Health and Safety Act. The first day of hearing was
scheduled for March 4, 2019. On that date, an attempt at resolution was unsuccessful. The
employer then made an opening statement, I ordered the employer to produce some documents,
and further hearing dates were set for October 2019.
On May 9, 2019, union counsel wrote by email to employer counsel that, “without prejudice to
any other matter and without precedent, the Union is withdrawing the above-noted and attached
grievance of November 13, 2019 on behalf of Krista Knerr.” Employer counsel advised that
there was no problem with the withdrawal being “without prejudice or precedent” with regard to
any other employee, but that she wanted the withdrawal to be “with prejudice” to the grievor in
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any other proceeding involving her and the employer. Union counsel did not agree, but
responded that the grievor had been made aware of the employer’s position.
About two weeks later, on May 22, 2019, a lawyer representing the grievor filed an application
with the Human Rights Tribunal of Ontario raising some or all of the same issues raised by the
grievance. It was served on the employer on June 18. At the conference call held with counsel
on June 21, union counsel advised that he and the union were unaware of this application until
employer counsel sent documents the previous day in preparation for the call.
The union asserts that once it unilaterally withdrew the grievance, it was resolved without any
requirement for the employer’s agreement. It says I have no jurisdiction to declare the
withdrawal “with prejudice” to a proceeding before another tribunal. It asks me to end the
proceeding because of the withdrawal without ruling on whether it was with or without
prejudice. The union submitted the following cases: Re City of Toronto and CUPE Local 79
2014 CarswellOnt 6360 (Stout); Re Ontario (Community and Social Services) and OPSEU 2012
CarswellOnt 6645 (GSB, Carrier); and Re Seneca College and OPSEU, July 24, 2009,
unreported (M. Picher).
The employer says the undisputed facts point to an abuse of process by the grievor, warranting a
dismissal of the grievance with prejudice or as an abuse of process, or that the grievance be
deemed to be withdrawn with prejudice. The employer referred to Re Ottawa-Carleton District
School Board and OSSTF, Nov. 7, 2011, unreported (Knopf).
[4]
Decision
Any party is free to withdraw a grievance at any time. For a grievance to be withdrawn “without
prejudice,” both parties’ agreement may be required. Here, the parties have agreed the grievance
is withdrawn without prejudice to matters involving employees other than the grievor. It has
long been accepted that, subject to exceptional circumstances, an arbitrator will not hear a
grievance that has been withdrawn and later filed again. (See Re City of Sudbury and CUPE
Local 207 (1965) 15 L.A.C. 405 (Reville).) In that sense, the withdrawal of this grievance is
“with prejudice” to this grievor’s ability to pursue the same grievance in the future.
It is understandable that the employer is upset that it has devoted time and resources to defending
this grievance, only to have it withdrawn in favour of a human rights application. However, it is
up to the Human Rights Tribunal to determine its disposition of her application to that tribunal.
The employer is free to argue at the tribunal that there has been an abuse of process. Its request
for a ruling on that point from me is dismissed.
However, the matter before me is dismissed with prejudice to the grievor’s right to grieve the
termination of her employment under the collective agreement.
________________
Lorne Slotnick, Arbitrator
June 28, 2019