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HomeMy WebLinkAbout1983-0296.Taffinder.83-08-25IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer: Hearing: OPSEU (Duanne Taffinder) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer 3. W.~Samuels Vice Chairman R. Cochrane Members W. A. Lobraico Member C. G. Paliare Counsel Gowling L Henderson Barris,ters & Solicitors J. F. Benedict Manager, Staff Relations Personnel Services Ministry of Correctional Services July 25, 1983 The grievor was discharged from his job at the Windsor Jail, and alleges that the discharge was without just cause. The hearing into this matter was scheduled to commence at 1O:OO AM on July 25. Notice of the hearing was issued by the. Grievance Settlement Board on June 29, but this Notice referred to File #156/83. On July 18, an Amended Notice of Hearing was sent to all concerned, this +ime showing File #296/83. At lo:00 AM on July 25, the employer was not present, at the place of hearing. The Board contacted Mr. J.F.'Benedict, Manager of Staff Relations of the Personnel Branch in the Ministry of Correctional Services, to whom the Notices of Hearing had been sent, to enquire about the reason for the employer's absence., The Board~was told that Mr. Benedict had.received the Notices of Hearing and had asked the office of the Attorney-General to handle this case, but had informed'that office'in his letter that the case , was to be heard on some other day. owe asked Mr. Benedict to make an appearance at our hearing. When he arrived at the hearing around 11:00 AM., Mr. Benedict zonfirmed his error. We accept that this was the cause of the Ministry's earlier failure to appear, though we were not shown a copy of the letter to the Attorney- General's office. At that time, Mr. Benedict also made it blear that he was not ready'to proceed with the case. On behalf of the grievor, Mr. Paliare argued that there should be no adjournment and that the grievor should be reinstated I and made whole because the employer had not shown just cause for the discharge. He pointed.out that the grievor had been without -3- work for some time, had been unable to find'other employment, had come from Windsor to Toronto once to prepare the case'and now again for the hearing, and it would now be unjust to permit then employer to delay the matter any further. He argued that there was no legitimate reason for the delay. It was agreed by the parties that the employer's case would be that the grievor's whole record justified discharge, but that the culminating incident was a minor matter. On the Notice of Hearing, then Board advises the parties that - *NOTE: IF YOU DO NOT ATTEND~AT THE HEARING THE BOARD MAY PROCEED IN YOUR ABSENCE AND YOU WILL NOT BE ENTITLED TO ANY FURTHER NOTICE IN THE PROCEEDINGS." In Dobbie and Clark, 131/78; the Board denied a grievance because the grievor did not appear'and no reason for the absence was forthcoming. ~'In Askew, 257/79, the grievor was not present at the appointed hour for the conune,ncement of the hearing. After recessing for thirty minutes, the Board told the grievor's representative that it would give consideration to, granting an adjournment provided that an acceptable reason for the grievor's absence was submitted in writing.within seven days: The employer's repre- sentative (coincidentally it was Mr. Benedict) made no objection to this course of action. The Board then learned that the grievor had been on the way to the hearing, but ,had been caught in traffic. This was accepted as a sufficient reason for the grievor's absence, - 4 - in view of the "extreme" penalty it would be to dismiss the. grievance, and the matter was set down for a later hearing. It is significant' that, in Askew, the grievor would have been prepared to proceed on the appointed day, but at a later time. Section.20(8) of the Crown Employees Collective Bar- gaining Act, R.S.O. 1980, ch. 108, which governs this Board, provides: The Grievance Settlement Board shall determine its own practice and procedure but shall give.full srtunity to the parties to any proceedings to present their evidence and to make their submissions, and the Grievance Settlement Board may, subject to the approval of the Lieutenant Governor in Council, make regulations governing its practice,and pro- cedure and the exercise of its powers and pre- scribing such forms as are considered advisable. (Emphasis added) After considering the submissions of Mr. Paliare and Mr. Benedict, and after reviewing the Board's jurisprudence and the Act, we ruled that the employer had been given proper notice of the hearing and had a full opportunity to present its evidence and argument: that there was no sufficient reason for the employer's inability to go on with the case at the appointed time: and that the employer had ,failed to show just cause for the dismissal. The Act calls for a "full OppOrtUnity” for each party to present its evidence and argument, but this does not mean that the Board must grant an adjournment to cure a clerical error, where to do so would be unfair in all the circumstances. We ordered the . ~immediate reinstatement of the grievor, and indicated that we would consider further'the matter of compensation and the removal of the culminating incident from the grievor's record. - 5 - It is important to emphasize the fact that our decision was based on a balancing of the interests of both parties. The inability of the employer to proceed at, the appointed times would mean considerable hardship for the qrievor. It would be some time before the Board could reconvene to hear the evidence and argument. Given that the. culminating incident was a minor matter, the qrievor should not be put to the additional emotional and financial strain of further delay. In Girimonte, 148/78 and 176/78, the Board held that it had no power to award costs under the Crown Employees Collective Bargaining Act, therefore we could not relieve the qrievor ,here by an award of costs. Because the qrievor's past record remains in his file, it can be used by the employer again if there is another culminating incident. Thus the employer has not lost the right to use the record to dismiss the qrievor if there is a. further disciplinable offence. On the other hand, if the qrievor now becomes a model employee, the employer will ,not suffers an injustice in reinstating the qrievor. We would not have considered reinstatement if it were not for the fact that the parties agreed that the culminating incident was a minor matter. In 'effect, the matter ,before us was discipline for a minor incident, but an incident which triggered consideration of the whole past record in assessing the appropriate penalty. Had the culminating incident been a serious offence (eg. assault on an inmate), the Board would have been prepared to overlook Mr. Benedict's error in advising the Attorney-General of the date for the hearing. With respect to compensation, owe have concluded that the grievor is~entitled to all lost wages and benefits, subject'to any -6- duty to mitigate his losses, and any remuneration he may have earned during the time off work: He should not be in a worse position than had the employer unsuccessfully put forward evidence and argument to show just cause. Therefore, we order that this compensation be paid and we reserve our jurisdiction~to decide the precise of compensation if the parties are unable to agree upon th i selves. amount s them- With respect'to the qrievor's request that the documents concerning the culminating incident be removed from his file, we are not willing to order this. We.will rule that these documents remain in his file,as unproven and unaccepted. That is, they may be used by the employer in a subsequent matter, but,the griever will be entitled at that time (if it occurs) to put forward evidence and argument to disprove the allegations~ contained in these documents. Done at London, Ontario, R. Cochrane, Member . /hisi . . ffe W.A. Lobraico, Member