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HomeMy WebLinkAbout1984-0808.McCabe.85-03-07Between: IN THE MATTER OF AN,ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Before: And Before: Foer the Grievor OPSEU (Harold McCabe) Grievor - and - The Crown in Right 0.f Ontario (Ministry of Community and Social Services) Employer Vice Chairman Member Member E. B. Jolliffe. Q.C. H. Simon E. R. O'Kelly* At hearings in London: November 15, December 1 1 and 12. 1984. *The death of Mr. O'Kelly occurred on December 26, 1984 E. B. Jolliffe, Q.C. (as persona designata) At hearings in London: February 27 and 28, 1985 M. Rotman Barris'ter and Solicitor For the Employer: R. McCully, Law Officer Legal Services Branch Ministry of Community and Social Services . - 2 - DECISION From April, 1981,,to September, 1984, Mr. Harold McCabe tia.s a Crown employee with the Ministry of Community and Social Services. A second class Stationary Engineer, he served at the Oxford Regional Centre, an institution on the outskirts of ,Woodstock which is maintained for the care of several hundred handicapped adults. On August 28, 1984, Mr. McCabe was suspended for 20 days and on September 4 he was dismissed. The action taken followed complaints about his conduct on' August 22, 1984. Mr. McCabe grieved against the suspension on August 29 and grieved against the dismissal on September 12. After the dismissal had been referred to arbitration under Sections 18 and 19 of the Crown Employees Collective Bargaining Act, a panel of the Board heard part of the evidence on three days in November and December and was scheduled to continue hearings on December 27 and 28. hit is sad to record that these were cancelled by reason of the .sudden death on December 26 of Mr. E.R. O'Kelly, a highly-respected member of the panel. As of that date, the Board lacked a quorum and thereby lost jurisdictio,n, as may be seen upon examination of subsections (41, (51 and (61 in -3- section 20 of the Crown Employees Collective Bargaining Act, which are as follows: 20. (4) The Grievance Settlement Board may sit in twoor,more panels asdecided and assigned by the chairman so long as a quorum is present in each panel. (5) The chairman or a vice-chairman, one member representative of employee interest and one member representative.of employer interest constitute a quorum and are sufficient for the exercise of all the jurisdiction and powers of the Grievance Settlement Board. (6) The decision of a majority of the members present and constituting a quorum is the decision of the Grievance Settlement Board, and, if there is no majority, the decision of the chairman or vice-chairman governs. The parties expressed a desire that hearings should be continued and the case decided by the undersigned, acting at their request. Accordingly, the parties entered into a formal agreement, the body of which is as follows: WHEREAS a panel of .the Grievance Settlement Board consisting of Edward Bigelow Jolliffe sitting as Chairman, Harry Simon sitting as Union Nominee and E. Robert O'Kelly sitting as Management Nominee, proceeded with the hearing of the Grievance herein, numbered 808/84 (hereinafter reEerKed to as "the grievance"), on November 15 and December 11, 12, 1984 AND WHEREAS E. Robert O'Kellydied on or about the 26thdayof December, 1984 before the Board could conclude the hearing of the grievance and prepare an Award - 4 - NOW IT IS HEREBY AGREED between the parties'hereto as follows: 1. The grievance shall be proceeded with before the Chairman of the said panel, Edward Bigelow Jolliffe, sitting alone and shall be determined by him as if he had been a single arbitrator. 2. The parties agree that the said Edward Bigelow Jolliffe will constitute a panel of the Grievance Settlement Board for the purposes of the Crown Employees Collective Bargaining Act (R.S.O. 1980, Chapter 1081 and that his decision in this matter will have the same force and effect as it would have had if the panel hereinbefore referred to had continued to hear the grievance as scheduled. 3; The parties further agree that they will not raise by way of objection' as a matter of jurisdiction or otherwise in any subsequent proceedings by way of grievance, complaint, appeal or otherwise, the fact that the grievance herein was proceeded with by Edward Bigelow Jolliffe in accordance with the terms of this agreement. IN WITNESS WHEREOF these presents have been executed by the Grievor, Harold McCabe and on behalf of the Ontario Public Service Employees Union and the Crown in Right of Ontario as represented by the Minister of Community and Social Service. The above agreement was executed on the morning of February 27 before resumption of hearings. .It had been signed on his own behalf by the grievor, on behalf of the Ontario Public Service Employees Union by its counsel, Mr. M. Rotman, and on behalf of the Crown in Right of Ontario as represented by the Minister of Community and Social Services by Ms. R. McCully, counsel. For the.purposes of this case, I have accepted the document as authority to proceed. 1 - 5 - It is hoped that the need for such an arrangement will not. recur. Nevertheless, all men and women being mortal, there is a possibility that the problem may arise again at some future date. Two comments are therefore in order. The first is that consideration should be given to appropriate amendment by.th,e Legislature of Section 20 of the Crown Employees Collective Bargaining Act. Section 11 of the Act already-contains a'provision in subsection (5) for the replacement of a member of an arb'itration board in the event of "resignation, death or otherwise before the board has completed hits work." No such provision in respect of the Grievance Settlement Board appears in the Act. Secondly, it is the opinion of the undersigned that an agreement such as the.o.ne resorted to in this case should be executed on behalf of the parties to the collective agreement as well as by the grievor. The Ministry is not a party. The parties to the collective agreement are the Management Board of Cabinet (representing the Crown in Right of Ontario) and the Ontario Public Service Employees Union, the certified bargaining agent for employees. The agreement that I alone should continue to hear this grievance --- and to decide it --- repre.sented a clear departure from the statutory requirements of Section 20. It is noteworthy that .section 18(2) of the Act contemplates that an employee may - have grievance rights provided by a collective agreeme~nt and indeed certain rights of that kind are found in Article 27 of the existing collective agreement. In my view, any departure from the requirements of the Act OK the collective agreement is not a procedural matter which can PKOpe’rly be dealt with by the Ministry concerned, by counsel acting for the Ministry or by counsel acting for the Union. I was .assured by counsel in. this.case that they had both been authorized to execute the agreement of February 27, being entrusted with "carriage of the matter.'! My opinion re- mains, however, that it ought to have been executed in the same way as the collective agreement by responsible officers of Management Board and by the President of the Union. That is :what I suggest.should be ~done in future, if the need arises. The writer proceeded to hear certain evidence tendered by both parties on February 27 and 28. By noon of the second day, a total of 12 witnesses had been heard. Thereafter the.parties entered into negotiations and eventually arrived at a settlement duly incorporated in a document which.1 was asked to approve. The terms of settle- ment, dated February 28, 1985, are stated to be as follows: .: . - 7- 1. 2. 3. 4. 5. ~6. The GKieVOK hereby withdraws Grievance GSB 808/84 and all other outstanding grievances between the parties heKet0. The Grievor will tender a resignation from his employment at the Oxford Regional Center as Stationary Engineer, effective February 28th, 1985. The Employer will pay the Grievor five (5) months salary to be calculated at the basic hourly rate presently in effect. The said payment is to be made to Counsel for the Union.and the GKieVOK, MELVIN I. ROTMAN, in the manner to bedirected by the Grievor, such payment to be made as soon as possible but in any event before the expiration of one (1) month fran the date hereof. The Employer will remove from the Grievor's file all reference to suspension and discipline leading to the grievances herein. The Employer will make arrangements for the returnof any of the Grievor's personal belongings which may be on the Employer's premises. The Grievor agrees~that he willnotreturntoorvisit the premises.of the-Employer at the Oxford Regional Centre, Wstock,.titario. The above document was duly executed in ,the presence of the undersigned.by Mr. George Bayne, President of Local 117 of O.P.S.E.U., by the grievor, Mr.. Harold McCabe, and by both counsel;Mr. Rotman and Ms. McCully. - 8 - On behalf of the Grievance Settlement Board, the undersigned is pleased to give approval to the settlement and commends the parties and their counsel for the manner in which a very difficult matter has been resolved. Dated at Toronto this 7thday of ,, March, 1985 For the Board as. mandated by the parties.