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HomeMy WebLinkAbout1984-0259.Walburg et al.85-01-15~,. ‘: . . ,, ~ELEFwONE’ os/S9s- 0699 259184, 1096184, 1115184, ;635/84, 1636184, 1637184, 0161/85, 0162/85 IN THE MATTER OF AN ARBITRATION - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAlNING ACT Before THE GRIEVANCE SETTLEMENT BOARD ! .; ..;.’ , Between OPSEU (C. Walberg, A. Fulton, C. Clarke, R. Young, D. Otter Il. Craves, R. Gordon, B R. Stockwood) - and - The Crown in Right of Ontario (Ministry of Correctional Services) For the Employer: Hearing: Prof. R.J. Delisle I. Freedman W. A. LObTaiCO I. Roland COUnSel Coiling and Henderson Barristers and Solicitors L. McIntosh ,> counse 1 Crown Law Office, Civil Ministry of the Attorney General September 10, 1986 ’ J Grievers Employer , i t A number of cases involving a COIUUOn element were presented to us for our consideration. In each ,case the grievor was injured at work and hence the subject of a Workmen's Compensation Board award. During their absences from work one or more statutory holidays occurred. In each case the griever opted, pursuant to Article 19;2 of the Collective Agreement, for compensating leave prior' to the holiday. In each case the griavor received his salary for eight hours for each statutory holiday. The grievors argue, pursuant to Article 53.2, that each is entitled to a further day's salary in addition. The Ministry resists. The Ministry argues that where a statutory holiday falls within the first three months of a Workmenls Compensation Board award, the employee is deemed to have takenthe holiday ,on the day it occurred.and he will not receive a lieu day. The issue presented to us is the identical issue presented to this Board in Charbonneau, 544/81 (Barton). In that case the interpretation here sought by the grievors was recognized as appropriate. Counsel for the Ministry before us indicated that Charbonneau was a departure from earlier jurisprudence of. this Board: see e.g. Co&er 145/77 (Swan), Parsons al/70 (Pritchard) and Martin- 434/81 (Delisle). While that may well be the case the decision in Charbonneau was judicially reviewed by the Divisional Court (unreported, July 4, 1985), and the Court's endorsement in dismissing the application reads simply that: 2 We express no opinion on the correctness of the interpretation of articles 19 and 53 of the agreement given by the majority of the board of arbitration. We simply say that, in the light of what we were told was a different argument made before the board, we see no necessity in this case, to resolve the apparent controversy among arbitrators. Despite an extrefiely persuasive argument by Ms. McIntosh on behalf of the employer, we are not convinced that the interpretation found in the majority award is ~patently unreasonable. It is trite to observe that finality in decision-making is an attribute much to be prized. Counsel for the Ministry does not say that certain facts or laws were inadvertently not brought to the attention of the Board in Charbonneau. Counsel does not say the decision was rendered per incuriam. .Rather it seeks to argue simply that Charbonneau was wrongly decided. Finding the IIrightll answer, the V8right" i.nterpretation, is obviously our 'pursuit but there comes a point in litigating. an issue when enough is enough. As a brake against repeatedly re-opening an issue this Board asks whether an earlier decision on the point is "manifestly wrong."; see e.g. u, 604/03,(Samuels). Unless the earlier decision is manifestly wrong ~the Board should be consistent and adopt its reasoning. Identical issues deserve identical solutions. This board heard argument that "manifestly wrong" and "patently unreasonable" were not synonymous. We appreciate that point. We understand the Divisional Court's refusal to pass on the guestion'of whether the interpretation was right or wrong, confining themselves to their jurisdiction of determining whether the majority award was patently unreasonable. Nevertheless, in view of the Divisional Court's holding that the interpretation found in the majority award in the Charbonneau i .I 3 decision is not ,"patently unreasonable" we decline to venture into the debate that Charbonneau is "manifestly wrong". Counsel for the Ministry asked us to listen to argument as to why fharbonneau is wrong so that we might settle the apparent controversy which the Divisional Court declined. A decision by this panel contrary to Charbonnea could hardly still the controversy. A contrary decision might also be seen by the Divisional Court as "not patently unreasonablee. we feel that if. remedy is necessary it is at the bargaining table. Accordingly, for the reasons given in the earlier decision in s, each of the grievances is allowed.' The principle has been resolved and' should the parties need our assistance in working out the details of the awards the Board remains siezed of the same. DATED at Kingston, Ontario, this 15th day of January, 1987. ;:g7i7~~iman /l!! fl+ W. A. Lobraico, Member