Loading...
HomeMy WebLinkAbout1984-0148.Scheffers et al.85-06-28t I File Nos. l&$149/84, l.50/84 151/X4, 152184, 154184 and 155184 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (J. Scheffers et al) and Grievors The Crown in Right of Ontario (Ministry of Consumer & Commercial Relations) Employer Before: For the Grievors: For the Employer: Hearing: R.L. Verity, Q.C. Vice-Chairman B. Switzman Member F.T. Collict Member B. Hanson Counsel Cavalluzzo, Hayes, & Lennon Barristers & Solicitors J. O’Shea Staff Relations Administrator Minis-y of Consumer & Commercial Relations April 25, 1985 I I . - y- INTERIM DECISION .i:? At t sine die, due i evors filed identical griev- t ion as Boiler Inspectors. The Griever Jack Scheffers.was instrumental in convincing six other Boiler workers to seekreclassification as Mechanical Inspector (Service Supervisor-P), as of January 1, 1984. In th~is~.matter, Steven Gr antes alleging improper classifica he Hearing, the Union requested an adjournment to the fact that the Grievor Jack Sche$fers was then ~hospitalized. Mr. Scheffers suffe r January of 1985, and is presently await i gery. ed a heart attack in ng triple bi-pas.s sur- The Hearing has been adjourned on two previous occa- sions. In August, 1984, the Hearing did not proceed pending a possible settlement. The Parties were not successful in reach- ing a settlement. Subsequently on January 24, 1985; a second Hearing date was adjourned upon consent due to Mr. Scheffers' medical condition. - 3 - In support of the applica,tion, the Union argued that to proceed in the absence of Jack Scheffers would ,be a denial of natural justice. Mr. Scheffers was the only Grievor to .~ participate in a representative capacity at the step 2 griev- .I ante procedure. He ins the~one Grievor to have.participated in all aspects of the dispute. ihe Union conducted its own job audit which was undertaken by Mr. Scheffers and in turn, Mr. Scheffers was ~subjected to a job audit by the M inistry. In November, 1984, the Parties agreed to amend the settlement request to reclassification as Service Officer 1. In January, 1985 Union Counsel Hanson, proposed a further amendment to the relief claimed; but has been unable to obtain ins true t ions from Mr. Scheffers. Mr. Hanson argued that Mr. Scheffers might very well be the representative Grievor in this matter, and that in any event, he wou-id be a key witness. Mr. Hanson was first made ., .~~ aware of the Grievor's continuing m.edical difficulties some 2 weeks ago, and he contended that he had nity to prepare a new representative gri contended that an adjournment would not the Employer. insufficient opportu- evor. Lastly, he significantly prejudice ‘. t app way ing adv Bil -4- ,,' On behalf of the Employer, Mr. O'Shea opposed the ication. He agreed that this matter could best proceed by of a representative Grievance, and that one of the remain- six Grievors co'uld fulfill that function. Mr. O'Shea sed the Board that he intended to ca~ll one witness, a Mrs. ard, who conducted the job audit and prepared the Position Specification and.Class Allocation Form. Mr. O'Shea,~pdvised that Mrs. Billard would go,on m.aternity leave in August, 1985 and might not return to work until June of 1986. .j?:'-.- There can be no doubt that t,he granting of an adjournment is a.discretionary matter, and not a matter of entitlement. Having considered he Parties' representations 'and the arbitral precedents cited, the Board agrees that the Union's request for an adjournment has merit. In our opinion, there is a duty imposed upon a Board of Arbitration, both under Section 19(1)~ and Section 20(8) of the,Crown Employees Collective Bargaining Act to proceed by giving each of the Parties a full opportunity to be heard. To .:. deny the Union's request for an adjournment, in the absence of one of the Grievors, for legitimate medical reasons, would in these circumstances deprive the Union of the full opportunity 'provi~sions specified in the Crown Employees Collective Bargain- ing Act. We are supported in that position by the Divisional Court Judgment of Mr. Justice Osler dated April 13, 1984, in the Judicial Review of the Ministry of Correctional Services and Duane Taffinder, 891./83. That Judgment stands for th.e pro- position that each Party must be granted the full opportunity to present its case and participate?~? the Hearin,g. Although there is-some prejudice to the Employer by g~ranting the Union's request for an adjournment, in the.circum- stances there would be far greater prejudice to the Union in a denial of the adjournment request. Here, the request is not a matter of convenience, but rather a matter of necessity. In addition, we rely upon the Union's representation that Jack Scheffers is in fact a key witness for Hearing purposes. In our opinion, to proceed in the ~absence of this . . key witness would be unacceptable and is a further reason Ian support of an adjournment. However, notwithstandyng, the .Parties are agreed that any one of the various identical Grievances alleging improper classification is acceptab le for Union presentation to an Arbitration Boa,rd. Accordingly, the has available to it the opportunity to adv~ance from amongst the = remaining six Grievors alternative representat ives who could be prepared as witnesses in the presentation o.f the issue associated with this classification Grievance. If its becomes evident that the illness of Mr. Scheffers .prohibits him from acting in the capacity of the representative.Grievor, then we would urge the Parties to agree upon another representative Grievor, and instruct the Registrar to reschedule the Hearing. ~Accordingly', this Hearing shall be adjourned sine die. DATED at Brantford, Ontario, this 28th day of June, A.D., 1985. ./ ,>A.-” J= _ .~ R. L. Verity, Q.C. - .Vice-Chairman QdS&, ye I B. Switzman - Member F. T. Collict - Member