HomeMy WebLinkAbout1988-0987.Mathieu.89-05-09 ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTAR~O
GRIEVANCE CQMMISSlON DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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987/88
IN THE HATTER OF AR ARBITRATION
Under
THE CROWN ~MPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVAR£E SETTLEMENT BOARD
Between:
OPSEU (Mathieu)
_.,.. Grievor - and -
The Crown in Right of Ontario
(Ministry of Natural Resources)
Emp 1 Dye r
Before:
P. Epstein - Vice-Chairperson
F. Collom - Member
H. Roberts - Member
APPEARING FOR H. Law
THE GRIEVOR: Grievance Officer
Ontario Public Service Employees Union
APPEARING FOR M.E. Cummings
THE EMPLOYER: Counsel
Matthews, Dinsdale and Clark
Barristers & Solicitors
HEARING: February 13, 1989
This is a grievance by Carole Mathieu arising out of a
job competition.
When the matter came on for hearing, counsel for the
employer took the position that this Board was without Jurisdiction
to hear the matter because the grievor was an unclassified
employee. This immediately gave rise to an argument by counsel for
the grievor that this issue fell squarely within the decision of
this Board in Beresford and The Crown in Right of Ontario, a
decision of the Grievance Settlement Board dated August 13, 1987
in which the issue of classified and unclassified employees was
carefully canvassed. Ms. Cummings responded that the subsequent
decision of the Grievance Settlement Board in Hicks and The Crown
in Right of OntariO, a decision of this Board dated June 7, 1988
led to an opposite result. Both counsel acknowledged that the
employer has sought judicial review with respect to the Beresford
decision but the application was dismissed. We are informed that
because, in the grievor's opinion, the Hicks result could~not stand
in the face of the Beresford result that judicial review
proceedings have been taken in the Hicks matter although the
proceedings have not yet been perfected and no date has been set
for the hearing of that application by the Divisional Court.
Counsel for the employer therefore suggested that because
the Beresford and Hicks decisions were at the heart of this matter,
this hearing should be adjourned to await the decision of the
Divisional Court in the Hicks matter.
without deciding whether the Beresford case and'the Hicks
case are in conflict and without deciding whether they necessarily
bear on the issues of this case, this Board is unanimously of the
opinion that an adjournment should not be granted. Ms. Cummings,
for the employer, fairly conceded that she could not reasonably
estimate the time frame that would be taken to have the Hicks
matter reviewed, but also fairly conceded that it could be more
than a year. She also acknowledged that the Divisional Court
decision might not be the end of the matter as far as the Hicks
case is concerned since there would also be possibilities of an
appeal from that decision.
This Board notes that it is not this grievance or
decision of this Board that is b~ing judicially reviewed. No
application has yet been made, nor has any.application being made
to stay these proceedings.
This is a job competition case and the new employee is
already in the position and it seems to us that the grievor's
rights and the employee's rights and the new employee's rights will
be significantly prejudiced by a lengthy delay. It seems to us
that if the employer wishes this kind of lengthy adjournment, the
employer would have to establish that there would be substantial
prejudice if we proceeded to hear the matter on the merits. We
find that the employer has not discharged this onus and has not
established any prejudice that it will suffer if the hearing
proceeds. Since we have already found that the grievor and the new
employer could well have sustained real prejudice if we do not
proceed, we all agreed that the matter should not be delayed. It
may well be that upon a closer examination of the merits, this
Board-may conclude that the Beresford decision and Hicks decision
are not in conflict;and in any event, may not be determinative of
the issues before us. We think that the decision re Board of
Education for the City of London and Federation of Women Teachers
Association of Ontario, (1984) 16 L.A.C. (3d) 366 is instructive
in terms of the principles to be applied when considering an
adjournment. We adopt the reasons of K. M. Burkett in that case.
Having regard to all of the interests in this matter and attempting
to balance them as best we can, we believe that the matter should
proceed as expeditiously as possible.
The parties have agreed that if this Board decides there
should not be an adjournment, they will proceed expeditiously and
will not renew their interest for an adjournment before another
differently constituted board. Accordingly, this Board will not
remain seized of the matter and it shall direct the Registrar to
arrange the most expeditious hearing possible for the parties.
Dated at Toronto, Ontario this 9th day of May, 1989.
~ E. F. ps.~e~n. ¥ice-Chai'rperson
~ ~ Col lorn, Sember
~. Robot, s, ~ember