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HomeMy WebLinkAbout2008-0042.Samsone.09-08-18 Decision Commission de Commission de Crown Employeess Grievance Settlement Grievance Settlement règlement des griefs règlement des griefs BoardBoard des employés de la des employés de la Couronne Couronne Suite 600 Suite 600 Bureau 600 Bureau 600 180 Dundas St. West 180 Dundas St. West 180, rue Dundas Ouest 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Tél. : (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Fax (416) 326-1396 Téléc. : (416) 326-1396 Téléc. : (416) 326-1396 GSB#2008-0042 GSB#2008-0042 UNION#2008-0582-0024UNION#2008-0582-0024 IN THE MATTER OF AN ARBITRATION IN THE MATTER OF AN ARBITRATION UUnnddeerr THE CROWN EMPLOYEES COLLECTHE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT TIVE BARGAINING ACT BBeeffoorree THE GRIEVANCE SETTLEMENT BOARD THE GRIEVANCE SETTLEMENT BOARD BETWEENBETWEEN Ontario Public Service Employees Union èÏÔÎÏ (Samsone) - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREVice-Chair Ken Petryshen FOR THE UNION Richard Blair Counsel Ryder Wright Blair & Holmes LLP FOR THE EMPLOYERPeter Dailleboust Counsel Ministry of Government Services Conference CallAugust 5, 2009 - 2 - DECISION [1] The Union?s request to adjourn sine die the hearing date of Monday, August 10, 2009, was opposed by the Employer. During a conference call on August 5, 2009, I entertained submissions from counsel on whether the hearing should be adjourned, and if so, on what basis. In a bottom line decision dated August 6, 2009, I granted the Union?s request to adjourn the hearing scheduled for August 10, 2009, but did not do so on a sine die basis. Instead, I advised the parties that the hearing in this matter would be scheduled to continue on November 3, 2009. My reasons for this decision are as follows. [2] In essence, the Union made its request to adjourn the hearing because it reasonably believed that Mr. R. Samsone, the grievor, would likely behave on August 10 in a way that would make it impossible to conduct a hearing. In order to set out the context for the Union?s adjournment request and to appreciate the basis for it, it is necessary to briefly review not only the history of this proceeding (?the tools case?), but as well the history of another proceeding before me involving Mr. Samsone (?the threat case?). The Union and the Employer are represented by different counsel in these matters. [3] Mr. Samsone was a Correctional Officer at the Toronto East Detention Centre. He was also the President of the Local Union. Following an incident at that institution, Mr. Samsone developed a medically verified Post Traumatic Stress Disorder (?PTSD?) and commenced a leave of absence. Beginning in the summer of 2005, he received short term sickness pay and subsequently received benefits from the Long Term Income Protection Plan - 3 - (?L.T.I.P.?). Mr. Samsone?s only restriction was the inability to work as a Correctional Officer in a correctional setting. At about the time his L.T.I.P. benefits would soon come to an end, Mr. Samsone accepted the Employer?s offer of a three-month assignment as an ESRO. This assignment was extended for a further six months, but ended on October 3, 2008. [4] In a grievance dated February 25, 2008, Mr. Samsone alleges that the Employer contravened the Collective Agreement by unreasonably denying him the resources and training to perform the duties of an ESRO. Given that he is no longer in this job, the relief the Union will be seeking is an order for monetary damages. The hearing date of August 10, 2009, was the last of a number of dates that had been scheduled for the tools case. On December 15, 2008, counsel made opening statements and the parties then attempted to resolve the matter through mediation. The Union began calling its evidence on May 5, 2009, when Mr. Samsone was called to testify. Mr. Samsone?s cross-examination had not been completed when the hearing day ended. Just prior to the conclusion of the hearing on that day, Mr. Samsone conduct became somewhat troubling. He became upset at some of Employer counsel?s questions and made critical comments directed at counsel, rather than simply answer the questions being put to him. He responded to one question by angrily asking counsel ?not to treat him like a fucking child? and indicating to counsel that ?he had no fucking idea?. My direction to him to simply answer the questions put to him went unheeded. After a brief break in the proceeding, the hearing day concluded. The next hearing date of July 27, 2009, was adjourned on agreement of the parties. The parties likely agreed to adjourn that day because of what had occurred on July 22, 2009, a hearing day in the threat case. - 4 - [5] The threat case arises from two grievances initiated by Mr. Samsone, one dated February 1, 2005, and the other dated February 24, 2006. In the first grievance, Mr. Samsone claims that he was threatened by an Operational Manager on January 1, 2005, in the presence of another Operational Manager, who he alleges did not respond properly. In the second grievance, Mr. Samsone claims that individuals in the Ministry failed to conduct an investigation of the threat incident and failed to protect his health and safety. The Employer has a number of objections to the arbitrability of these grievances. Its objections include assertions that the grievances were not filed or processed in accordance with the grievance procedure, that they are untimely and that they amount to an abuse of process. On May 7, 2009, the parties began to address the Employer?s preliminary objections. During that day, counsel made their opening statements, a number of exhibits were entered on consent and process issues were discussed. [6] The next two hearing days scheduled for the threat case were adjourned. In a decision dated July 29, 2009, I addressed the circumstances which led to these adjournments. [7] Mr. Samone did not attend the hearing on July 7, 2009. Union counsel advised that Mr. Samsone was not in receipt of any income and that he could not attend because he was unable to make child care arrangements for his young daughter. Employer counsel opposed the Union?s request to adjourn the hearing. After entertaining submissions, I granted the Union?s request to adjourn July 7, 2009, and indicated that the next hearing dates would be on a pre-emptory basis as against Mr. Samsone. I note that subsequent to the ending of his ESRO position, Mr. Samsone was placed on an administrative leave with pay for a limited period. The Employer decided to place Mr. Samsone on such a leave because of representations - 5 - by the Union on his behalf. When the administrative leave ended, Mr. Samsone had no source of income, although he does have an L.T.I.P application pending. [8] In the decision dated July 29, 2009, I described what occurred at the next hearing day in the following paragraph: Mr. Samsone did appear at the hearing on July 22, 2009. Given the process agreed to by counsel, the Union proceeded to call Mr. Samsone as a witness. Before he could be affirmed, Mr. Samsone quickly indicated that he intended to tape record the proceedings for use in other proceedings he intended to pursue. Counsel for the Employer objected to the tape recording of the proceeding. Mr. Samsone, in a loud voice, then proceeded to direct some critical comments at counsel for the Employer. Although I directed Mr. Samsone to discontinue speaking to Employer counsel and advised him that Union counsel was present to speak on his behalf, he would not desist. Mr. Samsone indicated that he did not want the Union or its counsel to represent him in this proceeding and that he wanted Mr. Gordon, a Union member, to represent him. Counsel for the Union requested a brief recess, which I granted. While in the Vice- Chair lounge, the Register advised me that the Employer requested security to attend the hearing. When the hearing resumed, counsel for the Union advised me that Mr. Samsone had made threats directed at the Union and the Employer during the brief recess. Union counsel then requested that the hearing be adjourned. Mr. Samsone indicated that he wanted the hearing to continue. Employer counsel agreed that the proceeding had to be adjourned in the circumstances. It was on this basis that I adjourned the hearing. It was evident that it would be impossible to conduct a hearing given Mr. Samsone?s conduct. [9] It was this history that Union counsel referred to when making the request for an adjournment sine die. In particular, he referred to what occurred on July 22, 2009, when Mr. Samone was lashing out at the Union and the Employer. Counsel characterized Mr. Samone?s conduct as inappropriate and non-responsive in his role as a witness and in his role as a grievor. He noted that it is possible that a contributing factor for Mr. Samsone?s conduct is his PTSD condition. Counsel indicated that he has reason to believe that the conduct which Mr. Samsone exhibited on July 22, 2009, would likely be repeated on August 10, 2009, with the result that a proper hearing would not take place and the hearing adjourned in any event. Counsel submitted that the hearing should be adjourned sine die and not resume until there was a clear indication that Mr. Samsone had the capacity to exercise rational judgment. Counsel advised that he believed that Mr. Samone?s L.T.I.P. application would soon be approved. - 6 - [10] In essence, the Employer opposed the adjournment because of its view that the proceeding has gone on far too long as it is and it wants the matter brought to a conclusion. While recognizing that Mr. Samsone has not been acting rationally recently, Employer counsel suggested that the hearing proceed on August 10 in order to see whether Mr. Samsone is prepared to act appropriately. Counsel indicated that he was prepared to close his cross- examination in order to get Mr. Samsone off the witness stand, which he hoped would help the situation. Counsel requested that if I decided to adjourn the proceeding, that I not do so on a sine die basis. He submitted that it would be unreasonable to simply adjourn the hearing without any prospect that the matter would be continued within a reasonable time. [11] Mr. Samsone?s comments at the hearing on July 22, 2009 indicate that he is unhappy with the Employer, the Union and counsel chosen to represent him. Whatever his precise issues are, his unhappiness has resulted in extreme conduct that has made it impossible to conduct a normal hearing. As Union counsel suggested, a factor that may be contributing to his behaviour is the state of his mental health. I agree with Union counsel?s assessment that it was very likely that this extreme conduct would be repeated on August 10, 2009. I can only assume that Union counsel?s assessment of the current situation was based in part with his recent dealings with Mr. Samsone. I did not see the utility of continuing with the hearing only to have the preceding adjourned because of similar conduct by Mr. Samsone. Attending at the hearing to see whether Mr. Samsone will conduct himself properly was not a reasonable option in the circumstances. I agree with Union counsel that simply removing Mr. Samsone from the witness stand would not ensure appropriate behaviour on his part. Although there are ways to deal with a disruptive influence at a hearing, the possibility that Mr. Samsone?s mental health is affecting his behaviour somewhat complicates this situation. I accept the difficulty the Union has in - 7 - establishing a link between Mr. Samone?s conduct and his mental health when Mr. Samone does not want to cooperate with the Union. It was for these reasons that I determined in this difficult situation that there was no reasonable alternative but to grant the Union?s request but to adjourn the hearing date of August 10, 2009. [12] I did not agree to adjourn the hearing on a sine die basis because I agree with Employer counsel that this matter should not be left in limbo for an indefinite period. Although there is no continuing liability, both parties have an interest in completing the hearing process within a reasonable period of time. By November 3, 2009, Mr. Samone and the Union will hopefully be in a position to determine whether or how they will proceed with this case. The prospect that Mr. Samone will be in receipt of L.T.I.P. benefits may help to ensure that he will act appropriately in any future hearing. th Dated at Toronto, this 18 day of August 2009. Ken Petryshen ? Vice-Chair