Loading...
HomeMy WebLinkAbout2022-5187.Murphy.23-11-03 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2022-5187; 2022-10691; 2022-10692 UNION# 2021-0154-0027; 2022-0154-0019; 2022-0154-0020 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Murphy) Union - and - The Crown in Right of Ontario (Ministry of Children, Community and Social Services) Employer BEFORE Dale Hewat Arbitrator FOR THE UNION James Craig Morrison Watts Counsel FOR THE EMPLOYER Jonathan Rabinovitch Treasury Board Secretariat Legal Services Branch Counsel HEARING October 19 and 23, 2023 -2 - Decision [1] This arbitration involves a termination of the Grievor’s employment on December 12, 2022. The Parties appeared before me on October 19 and October 23, 2023. On both days efforts were made to try to settle the case through mediation without resulting in a settlement. After concluding that there was not a settlement on October 23, 2023, I started the proceeding by hearing both Parties’ opening statements. At the conclusion of the opening statements Counsel for the Employer brought a motion to have the hearing on October 27, 2023 adjourned which was opposed by the Union. After hearing submissions from both sides, I determined that I would grant the adjournment and provided an oral ruling and agreed to summarize the ruling in a decision when I was asked, the following day, by Union Counsel. Below are the Parties’ submissions and the reasons for my decision to grant the adjournment. [2] Employer Counsel advised that he was recently assigned to the case and noted that the parties have not shared full production of documents, and as such, they do not have sufficient documents to properly litigate the case at this time. In addition, Counsel did not want to call his first witness on October 27, 2023 followed by a long break in her testimony given that the next scheduled date is June 19, 2024 and because she is scheduled for a medical procedure followed by a lengthy recovery time that might interfere with when she will be able to next testify. In addition, Counsel shared that the witness is very anxious about testifying in light of the Grievor’s continued activity on social media and other communication that she views as threatening to her and her staff. Counsel also submitted that the Employer would be prepared to follow a schedule for production and committed to work on finding as many mutually agreeable future hearing dates as possible. [3] Union Counsel maintained the position that granting an adjournment would result in circumstances of “justice delayed is justice denied” preventing getting to the crux of the case. Counsel argued that the Parties had scheduled dates for some time and that a change in Counsel should not be a reason to grant an adjournment. Union Counsel also shared that having long breaks between a witness’s testimony commonly occurs in arbitration hearings and that this case is no different. In addition, Union Counsel submitted that by not calling the Employer’s first witness, the delay negatively impacts the Grievor’s mental health. Finally, it was shared that Employer Counsel had not yet sent a production request to the Union whereas Union Counsel had provided a production request to the Employer which showed delay by the Employer in proceeding with the case. -3 - [4] In deciding to grant the adjournment of the hearing on October 27, 2023, I determined that it was a reasonable request given that the Parties had not exchanged full production resulting in Counsel for the Employer not having sufficient information to call his first witness. In this case, given the changes in scheduling and the assignment of new Counsel on both sides, I decided that more time was required for the Parties to gather and exchange full and sufficient documents in order to properly present their cases. Despite the long break in testimony, I determined that this witness’s circumstances, involving both scheduling of her medical procedure and lengthy recovery and her anxiousness about the Grievor’s continuing activity on social media, were distinguishable from most witnesses’ testimony experiences involving long breaks between hearing dates. As a result, I decided that starting the witness on the next scheduled hearing date would not result in a denial of justice. [5] However, in order to move this case along, the Parties agreed that they would work on gathering documents and materials as well attempt to draft an Agreed Statement of Facts. It was also agreed that the Parties would canvass more dates for this hearing and that they would advise the Grievance Settlement Board as soon as mutually agreeable dates become available. [6] I therefore order the following: - The Parties will mutually exchange production of all arguably relevant documents by November 30, 2023. Each Party will have 2 weeks to respond to seek clarification about the documents provided and ask for any other arguably relevant documents. - By January 12, 2024, the Employer will provide the Union with a draft of an Agreed Statement of Facts for the Union to consider. - The Parties will contact the Grievance Settlement Board once additional mutually acceptable hearing dates become available. Dated at Toronto, Ontario this 3rd day of November 2023. “Dale Hewat” Dale Hewat, Arbitrator