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Home My WebLink About1989-0755.Fabro.93-05-20 ONTA R~O EMPLO ¥~S DE ~A COURONN£ CROWN ~:MPL OYEE$ D~: L'ONTARtO BOARD DES GRIEFS ;80 DUNDAS STREET WE$~ $~ 21~, TORONTO, ONTAR~. M5G lZ8 TE[EPHONE/T~t~P~ONE: ~t~ ~2E- 180. RUE ~UNDAS OUEST. BUREAU 2~O0, TORONTO ~ONTARIO], M§G lZ8 FACStM]LE/~L~CO~E : '(4t6j 326-~296 ?55/89,, 757/89, 2152/86, 1695/87, 54[/88, 773/88, 905/88, 906/88, 1100/88, 740/89, 741/89,' 754/89, 1342/89, 1374/90 ~ZN THE MATTER OF AN ARBITRATION~ Under THE CROWN EMPLOYEES COLLECTIVE B~tRGAINING ACT Before THE GRIEVANCE SETTLEMENT BO/~D BETWEEN OPSEU (Fabro) Grlevor - and - The-Crown in Right of Ontario (MiniStry of industry, Trade & Technology) Employer BEFORE J. Roberts Vice-ChairperSon E. Seymour · Member. D. Clark Member FOR' THE A. Ryder GRIEVOR Counsel Ryder, Whitaker] Wright & Chapman Barristers & Solicitors FOR THB P. Ruzak RESPONDENT Counsel Mathews, Dinsdale & Clark Barristers & Solicitors SUPPLEMENTAL On February 18, 1993, the Board issued a supplemental award in response to a request for clarification of the remedy portion of'the award in this case, which was .issued on December 11, 1992. In this supplemental award, we indicated that the matter of ordering interest to be paid Upon the back-pay awarded to the grievor had been considered by the Board in its Executive Session prior to issuing our 'award of December 11, 1992, and it was'decided that interest should not be awarded. SUbsequently, on February 26, 1993, the Grievance Settlement BOard received a request from counsel 'for the grievor to set' forth in a second-supplemental award our reasons for deciding not to award interest. It seems that, unlike proceedings before arbitrators under the Labour Relations Act, proceedings Defore the Grievance Settlement Board are subject to the provisions of the Statutory Powers Procedure Act, R.S.O. 1990, c. s. 22. Section 17 of this Act provides as follows: 17. A tribunal shall give its final decision or order in any proceeding in writing and shall give reasons in writing therefor if requested by party We have decided to treat the request received by the Board on February 26, 1993, as a request for reasons in.writing under Section 17 of the Act. At the conclusion Of the hearing upon the merits in this case, counsel for the Union made extensive submissions, inter alia, upon the question of remedY. None of these submissions, however,' addressed to the Board any request for interest. As a .result, counsel for the Ministry did not make any responsive submissions upon the question of interest in her reply to counsel's argument. It was left to the Board~ then, to address the question of interest sua sponte when crafting the remedial portion of its award. It was decided that it would not be fair or reasonable to award interest in the circumstances of the presentcase. This was not' a case'where there was a lengthy'delay between the.date of discharge and the date of commencement of arbitration proceedings. Indeed', the discharge occurred in the course of our arbitration hearings upon several other grievances filed by the grievor and, as indicated in our award, it was agreed.that the discharge grievance would be heard first, with the evidence previously heard running to it. It is true that, even so, a little more than tWO years passed between November 16, 1990, when we commenced hearing'the d~scharge grievance, and December 11, 1992, when our award issued. ADart from the usual difficulties associated with continuing the hearing on mutually convenient dates, there were in the opinion of the Board two reasons why our hearing was so protracted in length: (1) the heart surgery that the principal withess fo~ the Ministry, Mr. Quigley,. was forced to undergo between the close of his direct examination and the commencement of his crOss-examination; and, (2) the unavailability of the grievor as a witness in his own grievance. As to (1), the delay due to the heart surgery, this was a period of about four months in duration. In response to submissions on behalf of the grievor that the burden of this delay should not be bourne' by him, we issued an interim award directing the Ministry .to compensate the grievor during the period of this delay as _.if he were on ioDg-term disability, .sUbject to an obligation to repaythese monies should his grievance not succeed. As to (2), the delay caused by the unavailability of the grievor as a witness, it was the view of the Board that, likewise, the burden of this delay shoul~ not be bourne by the Ministry. It might be added that not only was there delay occasioned by this factor, but also considerable additional expense to the Ministry. The unavailability of the grievor as a'witness in his own.grievance forced counsel for the Union to place much'greater reliance upon documentary evidence than otherwise would have been the case. He went on a wide-ranging document hu~ting'expedition in the course of the hearing .in order to achieve this end.' Considerable'hearing time became 'devoted to arguments over the admissibility and 4 significance of certain documents, or in some cases; packages of documents. The Ministry Was put to considerable expense in searching out and making available virtually complete Cabinets - 'full of documents-for the inspection of counsel. In the opinion of the Board, little, if any of this'would have been required had the griever been available to testify. As in the case of the delay resulting from Mr. Quigley's heart surgery, it did not seem inappropriate to the Board to attempt to reduce the burden that ·this cast upon the Ministry by declining .to award interest upon the.compensation·awarded to the griever.. DATED at London, Ontario, this 20th day of' May, 1993. R. J. ~Roberts, Vice-Chairperson "I Dissent" (dissent attached) E. Seymour, Union Member D. Clark, Employer Member O.P.$.E.U. (Fabro) THE CROI, IN IN RIGHT OF ONTARIO (Ministry of.Industry..Trade and TechnologY) DISSENT Edward E. Seymour, 'Employee Nominee I have read the supplemental Award and, with respect, I must dissent from the de6ision not to award interest to the 9¥iever. i do so because' many of the de-lays in procedure were not caused by the griever at all; rather, they were the direct .result pi: the Ministry's: failure to co-operate With Union Counsel when the Union requested documents relabed to Mr. Fabro's grievances. The real delay in the matter Mas not' the searching out of the documents, but rather was caused'by the Ministry stone~alling over their release. The documents were'readily available, and once this panel ruled.on Mr. Ryder's. r.ight to see them, there Nas little time lost in searching through them. All of this occurred despite the fact that the jurisprudence regarding oppoming'Counsel's right to such documents is quite clear, Additional delay Mas caused when the EmPloyer's Counsel insisted on the right to see every Local Union file related to the Union's investigation of the Fabro grievances. 3. The documents were necessary not only because Mr, Fabro fai~ed to testify, but mainly to compare Mr. Quigley's allegations in testimony, regarding Mr. Fabro's appraisals. In many instances, Mr. Qui~ley's allegations in direct testimony, and Page 2 cross-examination were not borne out by the contents o.f the appraisals. I 4. 'Delays also resulted because the Hi'nistry cancelled dates 'when they ~ere already'set (e.g. London hearing dates b~hich were set, and agreed to by all parties,) in an effort to expedite matters. For these reasons I do.mot think i'% appropria.te that Mr. Fabro should suffer toss of interest for all the. delays in the Hearing. 7he Ministry should share part of 'the responsibili%y -For these delays, and should have been directed to pay interest on the monies oMin9 to Mr. Fabro. Edward E-, Seymour, Union Nominee ope~u:3~3