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HomeMy WebLinkAbout1988-1051.Hislop.89-11-06 ONTARIO EMPLOYES DE LA C'OUflONNE ~ .-., ~ CROWN EMPL 0¥£ES DE L'ON TAFIIO ~' GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST. TORONTO, ON~ARIO. M5G IZ8- SUtTE £1~2~ ' TE£EPHONE.,'T£L~PHONE 780. RUE DUNDAS OUESI', TORONTO, (ONTARIO} M5G 1Z8 - BUREAU 2100 (416) 598-0~88 . 1051/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Hislop) Grievor - and - The Crown in Right of Ontario (Ministry of Community & Social Services) Employer Before:. A. Barrett Vice-Chairperson P. Klym Member D. Walkinshaw Member For the Grievor: H. Law~ Senior Grievance Officer Ontario Public Service Employees Union For the Employer: S. Patterson Counsel Legal Services Branch Ministry of Community & Social Services Hearing: March 1, 1989 DECISION This is another ±s a cluster of cases brought before this Board in which we are being asked to decide which of two conflicting decisions of the Board is correct. The decisions are BeresfordlG.S.B. 1429/86 and Hicks G.S.B. 2653/87. At our' hearing on March 1, 1989, the employer requested an adjournment sine die to await the decision of Courts which were reviewing both decisions. In Beresford, leave was being Sought to the Court of Appeal from a decision of the Divisional Court upholding the Board's decision. In Hicks, a judicial review Proceeding had been launched in the'Divisional Court. l The application had just been perfected and itlappeared it would be many months at least until a decision was rendered, and even longer, if appealed. The instant grievance concerns a job competition in which the grilevor claims he was not given the benefit of having his seniority considered because he was considered unclassified staff when, on' the basis of Beresford, he should properly have been considered classified staff.· The u~ion says there would be substantial prejudice to the grievor if this grievance is adjourned into the distant future, leaving the grievor's job status in limbo. The employer argued that in view of the G.S.B. decision in Blake 1276/87 which held that it is not appropriate for one panel of this Board to overrule the decision of another panel of the Board except in exceptional circumstances, we should not take it upon ourselves to "choose sides" before the reviewing Courts clarify the matter once and for all. To further add to the confusion, the issue of whether or not to adjourn to await the Courts' decisions in.Beresford and Micks is also the subject of conflicting decisions of this Board. 'In McKinna 439/88 and ~l-Karazati 775/88 the Board granted the employer request for an adjournment to await the outcome of Hicks and Beresford. In MacMillan 157/88 the Board granted an adjournment to await the outcome of a pending Board decision which might or might not be in conflict with an earlier Board decision. In Mathieu 987/88 the Board declined to grant an adjournment to await the outcome of Beresford and'Xicks, promising written reasons to follow. In McClella~ 865/85 the Board declined to grant an adjournment for the same purpose, without written reasons. We were also advised at the hearing that another similar application for adjournment had been reserved in Tsiotsikas 905/88 and that reasons could be expected shortly. As well, a panel of the Board, chaired by'the same vice- chairperson (Wilson) , was proceeding to delve into the merits of the'conflict between Beresford and Hicks in Br~ssette 1682/87,'.where no adjournment had been requested. In result, we reserved our decision on the ~pplication for adjournment until receipt of. the Tsiotsikas decision. Tsiotsikas has now been released and so have' the written reasons promised in Mathieu and the decision on the substantive issue in Bressette. Also, on June 26, 1989, the Court of Appeal refused leave to appeal in Beresford. In Tsiotsikas the Board stated that it had an obligation to clarify its own jurisprudence where there was conflict, and further that the reviewing Courts might find it helpful to know whether we have taken a definitive decision subsequent to the conflict having arisen. That panel denied the request for an adjournment and is now proceeding to deal with the merits. As mentioned earlier, the same vice- chairperson (Wilson) was seized with the merits in Bressette where no adjournment was requested. We now have the benefit of the Bresset~e decision which clearly and succinctly finds Beresford manifestly correct and Hicks manifestly wrong. Just three days after the release of Bressette the Court of Appeal upheld the Divisional Court decision that Beresford was correctly decided. In view of all that has transpired since our hearing, we are of the opinion that an adjournment in this case to await the decision in Hicks should not be granted. We are also of the view that Bressette should be followed by us on the basis of its cogent and compelling reasoning and on the basis of Blake.. We are aware that this decision was reserved only on the issue of the adjournment and not on the merits of the classified-unclassified issue which was not argued before us. We understood that if the adjournment was not granted the parties wanted us to reconvene to determine that preliminary issue; then proceed on the merits of the job competition grievance only if we found on the preliminary issue that the grievor was a member of the classified staff at the time the grievance arose. In the interests of fairness and expediency, we do not think it appropriate to reconvene to hear the preliminary issue alone. In Beresford, once the Board had determined that the grievor was improperly appointed to the unclassified service, the Board remitted the matter to the parties to attempt to fashion a remedy and remained seized in the event the matter could not be resolved between the parties~ The Bressette Board opted for the same.approach, and we feel that is the most appropriate manner of proceeding in this cas~ as well. However, if either of the parties thinks we have gcze too far in disposing of this case without'full argument on the merits of the preliminary issue or remedy, we are prepared to reconvene. We direct the registrar to schedule a date for a hearing upon the request of either party. DATED at Toronto, this ~th' day of ~.~~~ ..... 1989. A. B~ETT, Vice-Chairpe[~on