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HomeMy WebLinkAbout1990-2690.Leclair.91-07-22 DecisionONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO GRIEVANCE CoMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO M5G 326- 1388 180. RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO) M5G (4 326- 396 2960/90, 2962/90, 2963/90 IN 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 (Leclair) Grievor and The Crown in Right of Ontario (Ministry of Community & Social Services) Employer N. Dissanayake M. Lyons D. Clark Vice-Chairperson Member Member M. Wright Counsel Cavalluzzo, Hayes & Shilton Barristers & Solicitors C. Samaras Counsel Legal Services Branch Ministry of Community & Social Services June 11, 1991 __..-.-..-_I DECISION File 2960/90 is a grievance under article 18 of the collective agreement relating to health and safety. Files 2962/90 and 2963/90 are essentially discipline grievances. The parties could not agree on how to proceed with the respective grievances. After hearing submissions, the Board ruled that it will first hear the health and safety grievance in its totality, reserve its decision, and then continue to hear the two discipline grievances to a completion. The Board ruled that it will issue two separate awards, one dealing with the health and safety grievance and the other with the two discipline grievances. In determining the health and safety grievance it will not consider any of the evidence led in the discipline grievances, unless of course that evidence had been also called during the course of the health and safety grievance. However, the parties will be permitted to rely on the evidence called in the health and safety grievance in presenting their case in the discipline grievances, subject of course to the usual rules including relevancy. Having established the hearing procedure, the Board dealt with a further dispute between the parties as to who should proceed first on the health and safety grievance. Counsel for 3 the union conceded that normally in a health and safety grievance the union would proceed first. However, he submitted that this was an exceptional case where it was appropriate to require that the employer proceed first. He pointed out that the focus of the grievance was a refusal by the Employer of a request by the grievor that he be allowed to work straight night shifts to accommodate a back problem he had. This request was supported by a medical certificate from the grievor's physician. The employer did not grant his request but sought additional medical information. He cited a number of cases dealing with demotions, where arbitrators have held that since the employer initiates a demotion, only it has the knowledge of the reasons for the demotion and therefore, should proceed first procedurally. By analogy, counsel argued that here only the employer knows why it denied the grievor's request and why it felt necessary to seek more medical information. Accordingly, counsel submits that the Board should require that the employer proceed first. Having considered the submissions of the parties, we are of the view that there is nothing exceptional in this case which should cause us to depart from the normal procedure that is followed in health and safety cases. In numerous cases that come before the Board, the health and safety grievance consists of a request by a grievor that the employer take some steps to further the grievor's health and safety, 4 and a refusal by the employer. Examples that come to mind are, a refusal by the employer in a correctional facility to change the inmate feeding procedure, or a refusal to instal stronger steel cell doors. In each of these cases, it can be fairly said that only the employer is aware why it refused the requests. However, that is not reason to require the Employer to proceed first. The case at hand is not distinguishable from the typical health and safety grievance that comes before the Board. The usual rule is that the party that has the legal burden of proof proceeds first procedurally. We see no reason to depart from that rule in the instant case. The hearing of these grievances will proceed in accordance with the foregoing rulings, on the dates agreed upon at the hearing. Dated this 22nd day of July- 1991 at Hamilton, Ontario. N. Dissanayake Vice-Chairperson Member D. Clark Member