HomeMy WebLinkAboutEmployer 09-03-17
IN THE MATTER OF AN ARBITRATION
Pursuant to the Colleges Collective Bargaining Act, S.O, 2008
Between:
CONESTOGA COLLEGE
(The College/Employer)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNIONJ LOCAL 237
(The Union)
Re: College Grievance - Article 20
OPSEU File #2008-0237-001
PRELIMINARY AWARD
BOARD OF ARBITRATION:
Paula Knopf - Chair
John Pod more - Employer Nominee
Ed Seymour - Union Nominee
APPEARANCES
For the Employer:
D. Brent Labord, Counsel
Debra Marshall
Edith Torbay
Henry Reiser
Michael McClements
For the Union:
Mary Anne Kuntz, Senior Grievance Officer
John Innanen
The hearing of this matter was held in Kitchener on March 10, 2008.
This case involves a grievance filed by the Employer, alleging a breach of the
Professional Development Leave provisions of the Collective Agreement and
seeking, as part of the redress, repayment from a professor of the compensation
paid to him during the period when a leave had been granted. Under the parties'
Collective Agreement, an employer grievance is called a College Grievance. At
the outset of the proceedings, the Union raised two preliminary objections, one
related to timeliness and the other to jurisdiction. The parties agreed that the
jurisdictional issue should be addressed first and they reserved their rights with
respect to all other matters. Accordingly, this Preliminary Award deals only with
the jurisdictional objection.
The context of the case is important, although at this stage of the proceedings, it
should be noted that no factual determinations have been made. However, the
chronology of events was outlined through documentary evidence that was
introduced on consent. Although there may be many facts that will become
significant to the ultimate merits of the case, the only the facts that are relevant to
the jurisdictional issue shall be outlined in this Preliminary Award, They are
actually quite simple. The Employer is a respected College of Applied Arts and
Technology that offers a broad range of courses. Historically, it issued diplomas
upon graduation, However, in recent years it has been accredited to grant
Bachelor degrees in some programs, including Electronics. Rudy Hofer is a
Professor of Electronic Engineering. He holds a diploma in that field, as well as
teaching credentials from Queen's University. He has taught in the College's
"Diploma" program since 1998 and was involved in the early years of the
department's "Degree" program. However, the Ministry of Training, Colleges and
Universities demands that once a Bachelor level degree program becomes
established, the professors have to hold credentials at least one level beyond the
degree program in which they are teaching, As a result, Mr. Hofer's assignment
reverted to the Diploma program. The College's evidence would be that the
Department Chair and others discussed this situation with Mr. Hofer and he was
encouraged to pursue various options that would lead to him acquiring a Master's
degree, He was specifically encouraged to persue an Executive M.B.A. from the
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University of Windsor that is offered from the Conestoga campus. It is offered in
evening and weekend classes over a two year period.
From April 2006 to December 2006, Mr. Hofer was off work, using up his
accumulated vacation entitlements. In the Fall of 2006, Mr. Hofer applied for a
Professional Development Leave to cover the period from January 1 , 2007 to
December 31,2007. He gave the following reasons for seeking the leave:
a) improve my understanding of electronic manufacturing techniques;
b) improve my ability in embedded programming; and
c) improve my project management skills
I intend to achieve item (a) by introducing an electronic project to the
market. I intend to achieve (b) by examining and evaluating C compilers
for common microcontrollers and lastly, I intend to achieve (c) by enrolling
in the University of Windsor MBA program offered here at the college.
Benefits that will accrue directly to the college include:
Stronger ties to industries that hire our grads, better ability to deliver
curriculum in the applied degree program (as year 1 encompasses
electronic manufacturing and program management.) being [sic] able to
provide more currenUindustry relevant skills to students, and lastly
obtaining the educational credentials needed for teaching in the degree
program.
In support of the application, he filed the prescribed application form and had his
Department Chair submit a letter of support. That letter reads in part:
As you are aware we can only support either your salary or the
maximum amount allowed by the college for the tuition expenses. . .
I wish you luck in the pursuit of your MBA as the expertise you will gain in
Project ManagemenUManufacturing will be of benefit to the
Electronics/Computer Engineering Technology programs.
In September 2006, Mr. Hofer's Professional Leave request was reviewed and
granted by the Professional Leave Committee which is composed of one faculty
representative from each school, three support staff and three management
members. The understanding of the Department Chair and the Committee
seems to have been that Mr. Hofer would or did begin the MBA program in
September 2006 while he was still on his extended vacation. However, by
November 2006, it came to the College's attention that Mr. Hofer had not enrolled
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in the MBA program. This raised concerns from the Department Chair who
indicated in writing that his support for the Professional Leave request had been
predicated upon the planned enrolment in the MBA program. The Chair
suggested that the leave be cancelled. However, those concerns were set aside
when Mr. Hofer wrote that he intended to defer his enrolment in the MBA
program until September 2007. On that basis, the Chair restored his support of
Mr. Hofer's Professional Development Leave.
From January 2007 to December 2007, Mr. Hofer was away from the College on
his Professional Development Leave, receiving 65% of his salary, as well as
pension and benefits, In May 2007 he also was granted "approval in principle"
for tuition assistance for the Executive MBA enrolment that was to take place
effective September 2007.
In early 2008 it came to the College's official attention that Mr. Hofer had not
enrolled in the Executive MBA program. Instead, he had enrolled in a workshop
series that offers a "Mini MBA Certificate" from the University of Windsor's Centre
for Executive Education. While Mr. Hofer tried to assure the College that this
program "mirrored" the Executive MBA, the University of Windsor advised the
College that the "Mini MBA" was "not academically rigorous enough to be
considered equivalent to the 1 st year of the Executive MBA program" and would
not result in any accreditation towards the MBA.
On the basis of this information, the Professional Development Committee
recommended that the College withdraw its financial support for Mr. Hofer's
Professional Development Leave due to his failure to enrol in the University of
Windsor's MBA Program, Meetings were arranged to discuss this with Mr. Hofer.
The process that followed is not relevant to this Preliminary Award. The
significant fact is that on April 21,2008, the College wrote to Mr. Hofer
demanding repayment of the $70,324.27 he had received between January and
December 2007. Full repayment was demanded by April 30, 2008, or he was
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invited to provide a schedule of payments that could be deducted from his future
earnings, When no response was received, this College grievance was
launched.
The Employer is seeking a declaration that there has been a breach of Article 20
of the Collective Agreement and an order awarding the College damages or
repayment from Mr. Hofer. The amount being sought is the full $70,324.27.
The relevant provisions of the Collective Agreement are:
PROFESSIONAL DEVELOPMENT LEAVE
20.01 The College recognizes that it is in the interests
of employees, students and the College that
employees are given the opportunity by the College to
pursue College-approved professional development
activities outside the College through further academic
or technical studies or in industry where such activities
will enhance the ability of the employee upon return to
the College to fulfill professional responsibilities.
20.02 To that end, each College will grant a minimum
of two percent of full-time members of the academic
bargaining unit of the College concerned who have
been members of the bargaining unit for a period of
not less than six years, and an additional one percent
of full-time members of the academic bargaining unit
of the College concerned who have been members of
the bargaining unit for a period of not less than 15
years, to be absent on professional development
leave at anyone time in accordance with the following
conditions:
(i) the purpose of the leave is for College-approved
academic, technical, industrial or other pursuits where
such activities will enhance the ability of the teacher,
counsellor or librarian upon return to the College;
(ii) a suitable substitute can be obtained;
(iii) the leave will normally be for a period of from one
to 12 months;
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(iv) the employee, upon termination of the professional
development leave, will return to the College granting
the leave for a period of at least one year, failing which
the employee shall repay the College all salaries and
fringe benefits received by the employee while on
professional development leave;
(v) the salary paid to the employee will be based on
the following scale: 55% of the employee's base salary
increasing by five percent per year after six years of
employment with the College concerned to a
maximum of 70% of the employee's base salary after
nine years. It is understood that the College's payment
is subject to reduction if the aggregate of the College's
payment and compensation or payments from other
sources during the period exceeds the amount of the
employee's base salary. The amount and conditions of
payment will be pro-rated for shorter leaves;
(vi) Applications for professional development leave
will be submitted in writing containing a detailed
statement of the nature of the proposed leave and its
perceived benefit to the College and the employee; to
the Chair of the Department at least six months prior
to the commencement date;
(vii) All applicants will be notified in writing by the
College President as to the disposition of their
application for professional development leave;
(viii) The College may on its own initiative propose
plans of professional development leave to
employees; however no employee shall be under
obligation to accept such a proposal;
(ix) This Article shall not preclude the College from
permitting greater numbers of employees to be absent
on professional development leave;
(x) The fulfillment of the minimum of two percent of
full-time employees on professional development
leave (arising out of employee-initiated leaves) will
depend upon the receipt and approval by the College
of a sufficient number of qualified applications in
accordance with the criteria set out above;
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(xi) In the event that more eligible employees apply for
professional development leave than will be approved,
preference for applications that fulfill the purpose of
the leave as set in 20.02 (i) shall be given to the
applicants with greater length of service since their
last professional development leave under this Article;
(xii) An applicant who is denied professional
development leave shall be notified in writing of the
reasons for the denial. Approval of an application for
professional development leave shall not be
unreasonably withheld;
(xiii) For professional development leaves that are
granted for a period of less than one year, the
payment shall be pro-rated. The unused portion of the
allowable earned leave shall be available to the
teacher, counsellor or librarian subject to the
application and approval processes of the College and
those defined within this Article. Seniority for the
purpose of granting the unused portion shall include
the seniority used in granting the first portion plus
subsequent accrual. Payment for the unused portions
of leave when taken shall be paid at the same
proportion of salary as established in 20,02 (v) when
the first portion was taken;
(xiv) The College shall provide to the Union Local,
once each year, the names of all applicants and the
names of all successful applicants and the duration of
the leaves granted.
College Grievance
32.10 The College shall have the right to file a
grievance with respect to the interpretation,
application, administration or alleged contravention of
the Agreement. Such grievance shall be presented in
writing signed by the College President or the
President's nominee, to the Union at the College
concerned with a copy to the Union Grievance Officer
within 20 days following the occurrence or origination
of the circumstances giving rise to the grievance,
commencing at Step 2, Failing settlement at a meeting
held within 20 days of the presentation of the
grievance, the Union shall give the College its written
reply to the grievance in 15 days following the
meeting. Failing settlement, such grievance may be
referred to arbitration within 20 days of the date the
College received the Union's reply.
Definitions
32.12 C llGrievanceff means a complaint in writing
arising from the interpretation, application,
administration or alleged contravention of this
Agreement.
The relevant statutory provisions from the Colleges Collective Bargaining Act:
14. (1) Every collective agreement shall provide for the final
and binding settlement by arbitration of all differences
between an employer and the employee organization
arising from the interpretation, application, administration or
alleged contravention of the agreement, including any
question as to whether a matter is arbitrable.
(2) If a collective agreement does not contain a
provision that is mentioned in subsection (1), it shall be
deemed to contain a provision to the following effect:
Where a difference arises between an employer and
the employee organization relating to the
interpretation, application or administration of this
agreement, or where an allegation is made that this
agreement has been contravened, including any
question as to whether the matter is arbitrable, either
the employer or the employee organization may, after
exhausting any grievance procedure established by
this agreement, notify the other in writing of its desire
to submit the difference or allegation to arbitration and
the notice shall contain the name of its appointee to an
arbitration board.... ,.. The single arbitrator or the
arbitration board, as the case may be; shall hear and
determine the difference or allegation and shall issue
a decision and the decision is final and binding on the
employer and the employee organization and on any
employee affected by it. The decision of a majority is
the decision of the arbitration board, but; if there is no
majority, the decision of the chair governs. The
arbitrator or arbitration board, as the case may be,
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shall not by his, her or its decision add to, delete from,
modify or otherwise amend the provisions of this
agreement.
(18) The decision of an arbitrator or of an arbitration board
is final and binding on the employer, employee organization
and on the employees covered by the collective agreement
who are affected by the decision, and such employer,
employee organization and employees shall do or refrain
from doing anything required of them by the decision.
The Submissions of the Union
The Union objects to the arbitrability of this matter, arguing that the Collective
Agreement precludes the Employer from seeking a remedy against an individual
employee. Further, it was pointed out that not every allegation of wrong-doing is
subject to arbitration. The Union took the position that Article 20 simply sets out a
process for administering Professional Development Leaves and forms no basis
for any arbitral jurisdiction. It was stressed that the Employer alleges no breach
of the contract by the Union and it was submitted that the College will not be able
to establish any breach of the Collective Agreement. It was suggested that the
College's managerial rights might have allowed it to try to discharge Mr. Hofer or
impose discipline for his alleged misuse of Professional Leave funding.
However, it was argued that the contract provides no basis to fashion an
individual remedy against a professor. Further, it was stressed that despite the
sophistication of the parties, nothing in their negotiations has lead to language
that deals with a failure to fulfill the expectations of a Professional Development
Leave. It was suggested that if the parties had intended there to be
consequences for a failure to meet expectations of a leave granted under Article
20, they would be found therein. But the lack thereof was said to lead to the
conclusion that a board of arbitration has no authority to issue the kind of remedy
that the Employer is seeking in this case. The Union stressed that there are only
two parties to this Collective Agreement and that this Board of Arbitration lacks
the jurisdiction to make a ruling against the Union that would be binding upon or
against an individual professor. In support of its position, the Union relied upon
University of Ottawa and Association of Professors of the University of Ottawa,
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(1992) 5 L.A.C. (3rd) 60 (E.E. Palmer); and Electrical Power Systems
Construction Association and International Association of Bridge, Structural and
Ornamental Iran Workers, (1987) 31 L.A.C. (3rd) 434 (S. Tacon). In short, the
Union argues that since the alleged facts reveal no allegations of a breach of the
Collective Agreement by the Union, this Board of Arbitration should conclude that
the matter is inarbitrable.
The Submissions of the Employer
The Employer argued that this Collective Agreement provides that the College,
as employer, can file a grievance respecting the interpretation, application,
administration or alleged contravention of the parties' contract. It was said that
the grievance should be liberally construed, in accordance with the principles in
Blouin Drywall Ltd., (1975) 8 O.R. (2nd) 103 (Ont. C.A.), and as applied in Spruce
Falls Inc. and I.W.A.-Canada, Local 2995 (2002) 106 L.A.C. (4th) 41 (P. Knopf). It
was submitted that the "essential nature of the grievance" is the Employer's
complaint that Mr. Hofer received payments pursuant to the provisions of Article
20 for which he was not entitled. The Employer stressed that its grievance asks
for an interpretation of Article 20 and for this Board of Arbitration to apply the
evidence to the language of the contract to determine whether Mr, Hofer's
conduct resulted in him being paid monies that he was not entitled to receive. If
such a finding is made, the College is asking that it be awarded damages for the
breach of Article 20 and that those damages be made assessed against and be
made payable by Mr. Hofer.
The Employer concedes that the Union has not breached the Collective
Agreement in this case. However, the Employer argues that Article 32.11 C does
not restrict College grievances to allegations of violations by the Union. Further,
the Employer relies heavily upon the language of s. 14(1), (2) and (18) of the
Colleges Collective Bargaining Act [the Act] to establish that the Board of
Arbitration can provide an interpretation or resolve a difference arising out of the
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Collective Agreement that will be binding upon an employee affected by it. The
Employer then referred to the following cases that have held that a board of
arbitration does have jurisdiction to award damages against individual members
of the bargaining unit where there is enabling statutory language such as found in
the Act Electrical Power Systems Construction Association [1992] OLRB Rep,
April 445 and Electrical Power Systems Construction Association and Ontario
Allied Construction Trades Council et al. (1993) 12 o.R. (3rd) 768 (ant. Div. Ct.);
Ontario (Attorney General) v. Bowie, (1993) 16 O.R. 476 (ant. Div. Ct.); Belleville
(City) and C.u.P.E., Local 907 (1994) 42 L.A.C. (4th) 224 (J.F. Allison); School
Board District No. 42 (Maple Ridge-Pitt Meadows) and C.UP.E. Local 703 (1999)
81 LA.C. (4th) 92 (D.R. Munroe); Dubord & Rainville Inc. and M.U.N.! Local 7625
(1998) 71 LA.C. (4th) 55 (H. Frumkin); and Cambridge Memorial Hospital and
SEIU! Local204! unreported decision of L. Mikus, dated November 28,1997.
The Employer argued that these cases establish language that is found in the
parties' Collective Agreement and the applicable statutory language in this case
mandate the arbitrability of a difference between the parties over whether Mr.
Hofer was entitled to the monies paid to him under the provision of Article 20.
Further, it was said that this Board of Arbitration can and should order that the
monies should be repaid, or that there has been an overpayment and/or that
damages should be assessed against Mr. Hofer. It was stressed that a board of
arbitration has "exclusive jurisdiction" over these matters and that any declining
of that authority would leave the College with no forum to seek redress.
The Decision
Employer grievances are rare events and they rarely find their way to arbitration.
It is also unusual for employers to be arguing for a "broad and liberal"
interpretation of a grievance or for a Union to be presenting preliminary
objections to jurisdiction. However! the unusual facts of this case have given
rise to this interesting jurisidictional issue.
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The jurisdiction of a board of arbitration depends upon the nature of the
grievance, the remedy being sought, the Collective Agreement and the applicable
statutory framework. Beginning with the grievance itself, it alleges that a member
of the bargaining unit, Mr. Hofer, did not fulfill his undertakings or the conditions
of the Professional Development Leave that had been granted to him in that he
failed to enrol in the MBA program, The grievance seeks repayment of
$70,324.27. Through the argument of counsel, the grievance was clarified and
the Employer asked for an interpretation of Article 20 to determine whether Mr.
Hofer received monies that he was not entitled to under the Collective Agreement
and, if so, to make appropriate remedial orders. There is no allegation that the
Union has violated the Collective Agreement and no claim of redress against the.
Union.
It is clear that this Employer can file a grievance with respect to the interpretation,
application or administration of the Collective Agreement, see Articles 32.10 and
32.11 C and s. 14(1) and (2) of the Act. Fu rther, although boards of arbitration
are authorized to give "liberal interpretations" to the wording of grievances in
order to deal with the "real complaints" that concern the parties, see Blouin
Drywall, supra, at p.i 08, this grievance does not need such a liberal reading.
The grievance is clear, It specifies the nature of the Employer's concern, it refers
to the Collective Agreement provision that is relevant and it sets out the exact
nature of the relief being sought. It is true that the remarks of Employer counsel
have brought clarity and provided a legal framework for the grievance, However,
even without that assistance, the grievance establishes that the Employer's case
arises out of Article 20 and that the College seeks damages or repayment
against an employee who allegedly did not act in accordance with the plan he
had outlined on order to obtain the leave and/or that he did not fulfill the
requirements of that provision. The Union and the Employer disagree about
whether the facts amount to a violation of Article 20 and they disagree about both
the meaning of Article 20 and how it should be administered. Those "differences"
make this case arbitrable. The nature of the grievance also gives rise to arbitral
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jurisdiction because it concerns the application of the language of Article 20 and
the consequences of any failure to complete or fulfill the expectations of a
Professional Development Leave, For those reasons, there is a difference
between the parties concerning the interpretation, administration and application
of the Collective Agreement. Therefore, this College grievance is arbitrable.
The next question to address is whether a board of arbitration has the authority
under this Collective Agreement and the Act to make a remedial order against an
individual member of the bargaining unit. Aside from the declaratory order the
College is seeking, the Employer is also seeking substantial damages from Mr.
Hofer personally. The Union argued strongly and effectively that a board of
arbitration can only make a remedial order against a party to a collective
agreement. That position is quite understandable given the nature of the
contractual relationship between the Union and the Employer and the fact that
employees are not parties to a collective agreement. However, for several
reasons, the Union's objections to this Board of Arbitration's remedial authority
over this case cannot succeed. First, the Act makes it clear that a board of
arbitration can hear and determine a "difference" between the parties and issue a
decision that is "final and binding on the employer and the employee organization
and on any employee affected by it" [emphasis added), s. 14(2). Further, the
decisions of the arbitration board are final and binding on the employees covered
by the Collective Agreement "who are affected by the decision", s. 14(18). This
language has been interpreted in many contexts to grant arbitration boards the
jurisdiction and the exclusive authority to award damages against an employee in
the following situations:
1. where an employee was found to have improperly claimed and received
room and board allowance to which he was not entitled under the
collective agreement, see Electrical Power Systems Construction
Association and Ontario Allied Construction Trades Council et al. [Div.
Ct.], supra;
2. for damages for negligence in the operation of an employer's vehicle, see
Ontario (Attorney General) v. Bowie, supra;
3. for recovery of overpayment of sick leave, see Belleville (City) and
C. u.P,E., Local 907, supra;
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4. for monies improperly received as a result of a conflict of interest, see
School Board District No. 42 (Maple Ridge-Pitt Meadows) and C. UP. E.
Local 703, supra;
5. for damages for the negligent performance of duties, see Dubord &
Rainville Inc. and M.U.N., Local 7625, supra;
6. to recover overpayment of wages, Cambridge Memorial Hospital and
SEIU, supra.
These cases are all premised upon the principles established in Weber v.
Ontario Hydro (1995),125 D.L.R. (4th) 583, [1995] 2 S.C.R. 929 and summarized
in Dubord and Rainville Inc. and M.U.N., supra, at p. 65 as follows:
It follows that it is not the jurisdictional basis of a
claim or a matter of whether that claim can stand
independently of a collective agreement on some legal
basis outside the collective agreement that will be
determinant for purposes of jurisdiction, It will, rather,
be the context out of which the claim arises and where
that context is a collective agreement relationship and
the claim bears some attachment, even inferentially, to
that relationship, notwithstanding that it may stand on
its own on a legal basis outside the collective
agreement, it will be considered as falling within the
exclusive domain of an arbitrator. Thus, a claim of an
employer against an employee arising out of the
employer/employee relationship where that
relationship is governed by a collective agreement and
where there are provisions in that collective
agreement to which the claim may relate, even
inferentially, will be for a tribunal of arbitration and not
the courts of civil jurisdiction to determine,
The Supreme Court of Canada has made it clear that where there is a dispute
arising out of a collective bargaining relationship and where the claim is related
to or linked to the language of the collective agreement, arbitration is the
exclusive forum available to resolve the matter. This means that those disputes
cannot be taken before the courts. It also means that those disputes can and
must be resolved by the arbitrators or boards of arbitration appointed under
those collective agreements.
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In the case at hand, we have parties who operate within a collective bargaining
relationship. There is a dispute between the Union and the College about the
operation, administration and application of Article 20. The resolution of this
dispute will be determined by the interpretation of the rights and obligations
created under Article 20. The question of whether Mr. Hofer is entitled to the
monies he received under the auspices of Article 20 can only be resolved by
interpreting and applying Article 20 to the relevant facts in this case. Therefore,
this College grievance arises under the Collective Agreement, must be
determined in accordance with the Collective Agreement and accordingly falls
exclusively within the adjudicative and remedial authority of a board of
arbitration. That authority includes the right to make declarations regarding the
interpretation of the Collective Agreement and the right to make remedial orders
against the individual employee who is bound by its provisions and affected by
the conclusions that are reached.
For all these reasons, we have concluded that this Board of Arbitration has the
jurisdiction and the responsibility to hear and determine the College grievance in
this matter. Further, we have remedial authority that includes the potential of
issuing an order against the individual who will be affected by that determination.
That person is Mr. Hofer. That could mean that he will be required to pay
substantial damages to the Employer, ranging from some to all of the amounts
being claimed. However, the merits of the case have not yet been heard or
decided. The acceptance of jurisdiction simply means that we must and will
hear the evidence and submissions of the parties regarding the outstanding
issues, which include one further objection to timeliness and the merits of the
case itself.
We remain seized with all the outstanding issues. We also remain available to
the parties to deal with interim procedural matters, should the need arise. This
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case shall resume proceedings at times that are mutually agreeable to the
parties.
I concur
"John Podmore"
John Pod more - Employer Nominee
I concur
"Ed Seymour"
Ed Seymour - Union Nominee