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HomeMy WebLinkAbout1982-0275.Fawcett.86-01-31,: : IN TIE WLtTER OF AN f!RBITRATION Under 275/82 THECRONNEWUXEESCOIWXVEBARGRINIKGAc=r Before Greimr 'J&e Cram in Right of Ontario (Ministry of Tnmspo$ation and Ccmmications) lbployer Before: R.L. Kennedy Vice-Chainnin .I:. Free* Member c;*. K.. ,&7fffh Member For the Griever: P. Sheppqd Grievance Officer OIE~iO~l%Jd,iC Setice Fnployee~'lL-&n For the E@over: J.. Zamdny' Counsel, Crown Lgw Office Civil Ministry of the Attorney General Hesrin,qs : July 25th, ,19~85 Septwber 3Oth, 1985 , -2- DECISION This matter was originally heard by a panel of this Board chaired by P. M. Draper with R. Russell and E. R. O'Kelly as members. A majority award of that panel, with Mr O'Kelly dissenting, was issued May l,-1984. The award dealt with an allegation.by the Grievor that he had been denied credits for time spent in travelling in contravention of Article 23(l) of the Coll'ective Agreement, and the 'relief claimed was that the Grievor be given credits in accordance with the Article for time so spent. The majority of the panel held that Article 23(l) did apply to the Grievor and that, for the purposes of the Article, the Grievor's working hours were a minimum cf seven and one quarter per-clay. The Board retained jurisdiction in the matter in order to determine, if,requested, the amount of the credits in respect of travelling time, in pay or leave, to which the Grievor would-be entitled pursuant to the decision. It would appear from correspondence filed by the parties that subsequent to the award, discussions and correspondence took place between the parties with respect to the issue of remedy. On September 6, 1984, the Union was advised,by the Employer that it was the~Employer's intention to apply for _ judicial review of the award dated May 1, 1984 and that the applicat - 3- ion would be made immediately. we were advised on the. hearing ~that such application had, in fact, been made and was awaiting hearing by the-Divisional Court. On October 10, 198.4, the Union requested the Registrar of the Board to reconvene a further hearkg to determke the matter of quantum in the Fawcett grievance. On November 23, 1984, the Registrar advised t Mr. Zarudny, as Counsel for the Employer, that Mr. Draper had instructed her to schedule the case for a hearing. Subsequently, Board member E. R. O'Kelly died, and on January 25, 1985, Mr. Zarudny wrote to the Registrar stating that it was the Employer's position that the Board had no jurisdiction to proceed with the remaining two panel members, either alone or with a newly appointed member, without the express consent of the parties to proceed in such a manner ou~tside the Crown Employees Collective Bargaining Act. Mr. Zarudny stated that the Employer wished to exercise its rights to a newly constituted hearing and-a newly or di,fferently constituted panel. The Union responded to the Registrar by letter dated January 31, 1985 rejecting the Employer's position that a new hearing must be held and asserting that the Draper award constituted a binding determination in respect of the' Ministry's liabilities to pay the benefits and allowances ~alleged owing on the grievance form. It was asserted that the ,i , 1. ,: : - 4 - remaining members of the-panel constituting a majority of the panel could make a finding on the one remaining question of' quantum. By letter 'dated May 7, 1985 the Registrar advised the parties that the outstanding issue of quantum, as to which the Board remained seized, would be heard and determined by a new and a differently constituted panel of the Board. Mr. Zarudny objected to that procedure in a letter dated May 27, 198'5, and the Registrar responded that the issue would be determined by a panel of the Board itself. This panel was thereafter constituted,, and the appropriate notice of hearing was sent to the parties returnable July 25, 1985. Further correspondence took place between the Board and the parties, and the Registrar subsequently advised the parties that ate the July 25th hearing the Board would be dealing with the issue of jurisdiction raised by the Employer and would not embark upon a consideration of the matter of quantum at that time. At the commencement of the hearing on July 25, 1985, Mr. , -Zarudny indicated that he had arranged to have a court reporter .present and requested that there be a transcript of the proceedings. We indicated that we had no objection to the presence of the ~reporter and the taking of a transcript, but Mr. Sheppard on behalf of the Union did object to the - 5- reporter's presence. After discussions involving the members of the panel and'the representatives of. the parties, Mr. Sheppard indicated that the Union would not object to the presence of the reporter, provided the Employer undertook that the transcript would not be used in any way with respect to the pending application for judicial review of the Draper award. Mr. Zarudny readily gave that undertaking on behalf of the Employer, and the matter proceeded with the court reporter present. The reporter was not present during the second day of the hearing, however. As a preliminary matter Mr. Zarudny-requested from us a statement as to the Board's authority and jurisdiction to call the parties before it to deal with the Fawcett grievance. It was our instruction to Mr. Zarudny at that time that we would make no statement as to the nature and extent of our jurisdiction without hearing the submissions of the parties on the issue. -. Mr. Zarudny's detailed and capable argument contained submissions in two specific areas. ~Firstly, it was argued that only the Draper panel possessed and, retained the duty and authority under Section 19(l) of the Crown Employees Collective Bargaining Act to make a final and binding decision on all issues placed before it for arbitration on this g,rievance. He -6- argued that the Draper panel, however presently constituted, is still seized of the matter and is not yet functus. He argued that under Section 19(l) there could be only one final and binding award, and since there were outstanding issues, the Draper panel had not yet issued such an award, Mr. Zarudny argued extensively as to the meaning of "final and binding" and asserted that unless and until a particular panel of the Board finally determined all matters in dispute, it 'has failed to perform its statutory duty under the' Crown Employees Collective Bargaining Act. He argued that,a final and binding, decision is characterized by a .directive or order which reflects some' affirmative action to remedy the breach that existed. The Draper panel at this point kad only declared the nature of the breach and had not said what wa," to be done about it. More specifically, the award containe,d an express statement that jurisdiction was retained on that aspect of the grievance. Mr. Zarudny argued'that it was the duty of the Draper panel to complete its award and no one else had the duty or authority to do so. In order to become functus, Mr. Zarudny argued that the Draper panel had to-do one of two things. It could issue a deci~sion that because there no longer existed a quorum,,or based on the principles of natural justice, the surviving members of the panel had no authority to continue and the matter would then'proceed to a complete rehearing before a properly constituted panel. In the alternative, it could issue a decision that it had authority to continue on the issue of ;l,, ,,I,., ,:: quantum in the absence of the deceased member, or by the substitution of another member, and proceed on that- basis. Neither step having been taken, Mr. Zarudny argued that this panel had no jurisdiction to intervene in the matter. Mr. Zarudny argued that based on the authorities, the Draper panel had no jurisdiction to delegate its authority to another panel, and any purported delegation would be illegal. Mr. Zarudny further pointed out that the legislature, in drafting the Crown Employees Collective Bargaining Act, gave specific consideration in Section 20(7) of what could happen where a member of the Grievance Settlement Board resigned, and authority was given to that member to complete any.duties or responsibilities and exercise any powers that he would have had had he not ceased to be a member of the Board in connection with zany matter in respect of which there was a proceeding pending at the time of his resignation. Mr. Zarudny noted that the Crown Employees Collective Bargaining Act specifically failed to deal with the situation of the death or incapacity of a member by sections similar to those found in Section 22(l) of the Labour Relations Act, Section' 66(2) of the Workmen's Compensation Act, and Section 11(l) of,the Ontario Municipal Board Act. The legislature having dealt with one situation of incapacity and having failed to deal with any other, the omissibn must be taken to have been intentional. - . -a- The second general branch to Mr. Zarudny's argument related to the principles of natural justice, and more particularly to the principle that he who decides a case must hear all the evidence and submissions of the parties. It was argued that no member of any tribunal may participate in any way in a,decision or any portion thereof if~that member has not heard all of the evidence on all of the issues in the case. While numerous authorities were relied upon, the principal ones were R. v. Huntingdon Confirming Authority [1929] 1 K.B. 698 and Re ,Consolidated Bathurst Packaging Limited (Ontario Divisional Court, unreported, May 15; 1985). Based on those authorities, it was argued that this panel of the Grievance 'Settlement Board was disqualified from making any decision on any of. the issues in the Fawcett grievance as we had not heard all of the evidense and all of the submissions to date. For the Union, Mr. Sheppard argued that the Draper award was a final award on the merits, and that this panel of the Board is now being asked to inquire upon a distinct matter not yet dealt with by the prior panel. The Draper panel was not obliged to deal with all matters, and it is permissible fork another panel to d'ispose of the remaining issue. It was argued that under Section 20(8) of the Crown Employees Collective Bargaining Act the Grievance Settlemen~t Board determined its own practice and procedure, so long as full opportunity is given to the parties to present evidence and make submissions. It is; therefore, open to.the Grievance Settlement Board to call a fresh hearing before a different panel to deal with the remaining-issue. Mr. Sheppard's second argument was that the reference to arbitration before the Grievance Settlement Board referred to in Section 19(l) of the Crown Employees Collective Bargaining Act conferred jurisdiction on the Grievance Settlement Board itself, and not upon a particular panel of that,Board. As long as a matter can be decided on the basis of freshly put evidence and argumen,t, any panel constituted under Sections 20(4) and 20(S) of the Crown can hear and make a decision of the Grievance Settlement Board. The, decisions made are decisions of the Board and not simply a panel of that Board. He noted that this very thing happened in the well known case before the Board of Zuibrycki 100/76, wherein a p'anel of the Board chaired by 3. R. S. Pritchard decided the issue of remedy after andther panel of the Board cha~ired by.George Adams had ruled on the merits of the case. Mr. Sheppard's third submission was that there remained no matter of substance to be determined in that the Draper award determined the Griever's normal hours of work and provide~d the - 10 - formula for determining his basic hourly rate. In substance, all that had to. be dot-&was to make the mechanical calculations to determine the Grievor's entitlement. It is ,our view that the second argument submitted by Mr. Sheppard correctly describes the nature of the jurisdiction in this matter. Section 19(l) of the Crown Employees Collective Bargaining Act provides that any 'differences between the parties arising from the interpretation, application, administration or alleged contravention of the Collective Agreement are referred for arbitration to the Grievance Settlement Board. The jurisdiction to decide such issues is, therefore, a jurisdiction that rests in the Grievance Settlement Board and not in a particular panel of that Board. Under Section 20(4J of the said Act, the Grievance Settlement - Board may sit in two or more p,anels, so long as a quorum is present, and Section 20(5) defines a quorum as consisting of the Chairman or a Vice Chairman together with one members representative from each side. The fact that a particular 'pa,nel of the Grievance SettlementBoard, once assigned, ceases to be able to sit as a quorum by reason of the death or incapacity of one member does not alter the fact that the basic jurisdiction to dispose of~the grievan,ce rests with the Grievance Settlement Board. The authority and jurisdiction is statutory, and based on the statute, a properly constituted - 1.1 - panel or quorum of the Board is sufficient to exercise all such jurisdiction and power. In exercising that jurisdiction, however, it is clear, on the authoritie~s referred to by Mr. Zarudny, that the Grievance Settlement Board and any panel and quorum thereof must proceed in accordance with the principles of natural justice.. Those principles are not absolute and inflexible, but must be considered in the light of the facts of each particular case that is presented. That principle is enunciated in Wiseman v. Borneman, [1971] A.C. 297, wherein Lord Reid stated at p. 308: Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances, and I would be sorry to see this fundamental general principle degenerate into a series of hard and fast rules. We must, therefore, determine whether there is any violation to the principles of natural justice-in having another panel of the Grievance Settlement Board determine as between the parties the matters that remain unresolved in then Draper award. In the circumstances, we see no such violation. The Draper award states at p. 2 the following: The Grievor, James Fawcett, grieves that he has been denied credits for time spent in travelling in contravention of Article 23(l) of the collective agreement - 12 - and requests that he be given credits in accordance with that article for time so spent. On p. 13 the award then states concisely: In the result, we find that Article 23(l) applies to the Grievor and that, for the purposes of the article, his working hours are a minimum of 7.J/4 per day. It is apparent from the decision that the positiontaken by the Employer was that Article 23(l) did not apply to the Grievor, and the specific finding was made by -the Draper panel that the Section did so apply. . That disposes of the, first issue raised by the grievance. In addition, the grievance, requested that the Grievor be given credits in accordance with Article 23(l), and the award on p. 13 stated: We retain jurisdiction in the matter in order to determine, if~requested, the amount of the credits in respect of travelling time, in pay or leave, to which the Grievor is entitled ,pursuant,to this decision. In our view that:retention of jurisdiction is to the Gr,ievance Settlement Board, and'while in normal circumstances subsequent matters would be considered by the same panel of the Board, that is no longer possible in the circumstances of this case.. The matter must, therefore, proceed in some form before a differently constituted quorum of the Board. In applying the -13- principles of natural justice, we must have,reference not only to the interests of the Employer in this matter, but we must also recognize the interests of the Grievor ,and the fact that the basic issue of the grievance, being the Grievor's entitlement under Article 23(l) has already been resolved in the Griever's favour by a panel of the Board properly assigned and constituted. The requirement to relitigate that point by the Griavor would more readily constitute a'violatidn of the principles of natural justice. It is our view that the issue of the applicability of Article 23(l) is quite severable from the issue of determining the amount of the credits in' respect of travelling time to which the Grievor is entitled; It does not offend any principle of,natural justice in'the particular circumstances of this case that the second issue be determined by the Grievance Settlement Board acting through a properly assigned panel. Such a procedure is quite proper within the provisions of Section 20(8) of the Crown Employees Collective Bargaining Act, which enables the Boards to determine its own I procedures. On any subsequent hearing the partie.s can be given full opportunity to present whatever evidence they wish and to make such submissions as they consider appropriate with respect to the amount of credits in respect of travelling time to which the Grievor is entitled. . . ‘> . - 14 - It is our view that the Draper decision constitutes a final and binding award on the issue of the Grievor's eligibility for travel time pay. The‘eligibility issue has been finally determined by that panel of the Board, and a written award has been released to the parties. No subsequent action on the partof the Board or of any panel of the Board could alter or change that finding. The quantum issue might well have been settled between the parties, and that award would have-stood as the final and binding award in this matter between the parties. The determination of the amount of credits to which the Grievor is entitled is severable and distinct from the eligibility issue, and it does not violate the principles of natural justice that that issue be resolved by a differently constituted panel. It is not a situation that is analagous to those in the Huntingdon and Consolidated Bathurst decisions referred,to by Mr. Zarudny, in that no one. who has not heard the evidence and submissions relevant to the issue being decided is participating in the making of a decision. The newly constituted panel in no way participate,s in the eligibility,decision that was reached by the Draper panel. Simila.rly, the subsequent issue will be determined by a separately, constituted~ panel, all members of which will hear all of the evidence and argument on the issue.that the parties wish to place before it. In our view, there is no violation of - 15 - the principles of natural justice in, the matter ptoceedi before this or any other properly assigned panel of the DATED this %t day of January, 1986. w Board. R.L. Kennedy I. Freedcan G. K. Griffin