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HomeMy WebLinkAbout1977-0078.Peake et al.78-07-20Between: Messrs. J..Peake, 0. Sleigh and L. Baptiste Before: IN THE MATTER OF AN ARBITRATICN Under The CROWN EMPLOYEES COLLECT!VE BARGAINING ACT Before ' 78177 THE GRIEVANCE SETTLEMENT BOARD , The Crown in Right of Ontario u; Ministry of Correctional Services Mr.. G. .W. Adams‘ Chairman Mr. G. K. Griffin Member Mr, a. Switzman Member For the Grievor: Mr. R. Nabi, Grievance Officer, Ontario Public Service Employees Union 1901 Yonye Street Toronto, Ontario For the Empioyer:. Mr. ,I. F. Benedict, Personnel Branch, Ministry of Correctional Services, 2001 Eglinton Ave. E., Scarborough, Ontario Hearinq: Suite 2100, 180 Dundas St. W., Toronto, Ontario JUiY i&h, 1978 --c - . i -2- In this case, three unsuccessful job applicants contest the fairness of a competition in which five jobs were awarded to five other employees. We were advised that the three grievors are only three of ten unsuccessful applicants. At the outset of the hearing; the Board asked the parties to . . establish that proper notice,had been given to the successful job applicants .' that their rights could be affected by this grievance; that they had a right to attend the hearing and be represented by counsel or othetwtse; and of the time and location of the hearing. We were advised that no such formal notice had been given. Thismatter must be adjourned until/proper and timely notice to all five employees has been effected by the employer I and the Board directs that such notice be given. As for the particular qualities of such notice, we would draw the attention of all parties who appear before the Board to the following quotation taken from the judgment 1-J of Mr. Justice Laskin (as he then was) in Bradley et al Y. corporation of the City of Ottawa et al (1967), 67 CLL& 14043~ (Ont. CA): It follows that they are entitled to notice of arbitration proceedings taken to test their right to continued enjoyment of the benefits. The fact that particular provision for notice is not made either in the statute or in the collective agreeant is of no mmsnt. There is a large silence in both--and this is not limited to collective bargaining relations in fire fighting--so far as concerns the procedure to be followed in an arbitration.' The common lawhas been specially sensitive to deprivation of property or contractual advantage in proceedings of an adjudicative character without previous notice thereof to persons likely to be directly affected, - 3- unless there 1s clear statutory exclu+on of such notice. In the present case, there is none. I leave for consideration when it arises any question of the power of bargaining unions and employers to commit employees to waiver of notice.of or intervention in. arbitration proceedings in situations such as that under review here. What~kind of notice should be given and who should give it? Preferably, it should be in writing indicating the issue or issues to be arbitrated as involving the possible diminution of the collective agreement benefits being enjoyed by the persons entitled to the notice; and it should advise of the date, time and place of hearing, of the right to be rep resented by counsel'or otherwise, and should be served personally or by registered mail suf- ficiently in advance of the date fixed for the hearing to give the notified persons a reason- able opportunity to prepare their submissions if they decide to appear. I should think that if there is any question of the proper length of notice it would be one for the arbitrator to settle in the first instance. The question of who should give the notice requires soms consideration of the City's role in the present case. It was represented before Hartt J.,but not on the appeal, presumably because the notice of appeal served on it was substantially limited to the notice issue. ~1 do not say that the City was under any obligation to be represented on this appeal but it is my view that it has some responsibility as to notice. The sub- stantive questions involved in the arbitration, namely, th&interpretation of article 12.01 and its application to the various employees immediately involved, arose because of the City‘s action in choosing certain employees .over others.for promotion. For this it was charged with a collective agreement violation. It became its duty to seek clarification from the Association whether ultimate arbitration would involve the propriety of the challenged proavtions or would be limited to a declaratory ruling. If the former, I would regard it as of course for the City to advise the promoted employees of the jeopardy to their enhanced -4- status by reason of the pending arbitration proceedings. Certainly, the City cannot wash its hands of the matter and leave it to those employees alone to defend the particular application of the collective agreement. The Union too may be expected to tell the promoted employees that their promotions were being challenged in an arbitration proceeding. Finally, the arbitrator or arbitration tribunal must also be alert to refrain fromadjudicating on the collective agreement benefits of un- represented employees unless they have been given proper notice. any questions in this respect, or the fact that notice has been given (whether by the Union or by the employer in the case) should be brought to the attention bf the tribunal. I would regard it as within its initial arbitral authority to give necessary directions. in issue of notice might conceivably arise in the course of a hearing, and it would be in order to adjourn it pending resolution thereof or to.enable any required notice to be given. Although the employer; in a case like the present, would be expected to argue vigorously for the affirmation of its action if the matter has reached arbitration level, it does not follw that there should be any implication of authority or even power to represent the individual interests of employees. They should be given the opportunity to make their own submissions if they choose to do so. This msans they should have notice as indicated . in these reasons. This matter is.referred to the Registrar to be rescheduled. The parties are in agreement that this panel df the Board is not seized of the case. Dated at Toronto, Ontario, this 20th day of July, 1978 ,& tJ&. G. !4?zams Chairman. I concur G. K. Griffin Member' I concur 5. Switzman Nember