HomeMy WebLinkAbout2018-1201.Gardiner et al.2020-07-07 DecisionCrown 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# 2018-1201; 2018-1202
OPSEU# 2018-5112-0090; 2018-5112-0091
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Gardiner et al) Union
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General) Employer
BEFORE
Barry Stephens
Arbitrator
FOR THE UNION
Jane Letton
Ryder Wright Blair & Holmes LLP
Counsel
FOR THE EMPLOYER Thomas Ayers
Treasury Board Secretariat
Legal Services Branch
Counsel
HEARING DATE July 2, 2020 (via teleconference)
-2-
INTERIM DECISION
[1] This matter involves the termination grievance of Luke Gardiner. The hearings
into this grievance are scheduled to resume on July 13, 2020. The employer seeks
an adjournment of the July 13 hearing, but the union opposes the motion. This
decision deals solely with the employer’s motion for adjournment.
[2] The employer sought adjournment of the July 13 hearing on the basis that it was
prepared to schedule a replacement date on September 24, 2020, which would be
less than two weeks after the last scheduled hearing date for this case. The
employer argued that this would result in minimal delay to the end of the case.
[3] The employer asserted that it would be difficult to make use of the July 13 hearing
date because the employer’s reply witness is no longer an employee of the
Ministry, and the employer was required to make special arrangements in order
for the witness to review materials as part of his preparation for testifying. The
employer asserted this would be difficult in normal circumstances, but that, given
the extra complication of the Covid-19 restrictions, it was not realistic that the
employer would be able to prepare the witness in a meaningful way prior to July
13.
[4] The union argued that it would not be appropriate to adjourn this case, given that
it is a termination case and that the grievor has been out of work and living with
the uncertainty of the arbitration process for a considerable period of time. The
union pointed out that the September date agreed to previously was a back-up
date in case the hearing did not conclude in August, as the parties expected and,
-3-
therefore, adjourning the July 13 date would result in the conclusion of the case
being delayed by a month, not one or two weeks.
[5] After considering the submissions of the parties, it is my conclusion that the
adjournment should be granted. I note first that there have been previous issues
with respect to scheduling and both parties have been very cooperative in agreeing
to the earliest dates possible. Thus, there is no evidence that the employer request
for an adjournment was part of a pattern of delay associated with this case. It is
also significant that the parties are available for a replacement date that is within
two weeks of the last day scheduled for this matter. Third, I take at face value the
logistical difficulties described by employer counsel, and it is my view that those
factors would likely result in less than optimal use of the July 13 date. This means
that it is more likely than not that the parties would be required to use the previously
scheduled date in September. Finally, even if that were not the case, the delay to
the conclusion of the case caused by an adjournment will be approximately one
month. This is not a period of time that is extraordinary, given the complications
described by employer counsel and the additional problems associated with the
pandemic.
[6] As a result, the hearing on July 13, 2020 is adjourned, and September 24, 2020
will be substituted as the “third” date, should it be required.
Dated at Toronto, Ontario this 7th day of July, 2020.
“Barry Stephens”
______________________
Barry Stephens, Arbitrator