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HomeMy WebLinkAbout1989-1299.Wong.90-05-24 ~ ~ ONTAF~iO EMPLOY~$IT/ELA COURONNE ~,~ ~ ' CROWN EMPLOYEES ' DE ~L 'ONTARIO ' GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ~80 DUND~.S STREET WEST, TORONTO, ONTARIO~ ~SG ~ZS- SUITE 2100 TELEPHONE/T~L~PHO~E 1EQ, RUE OUiVOA,.~. OUEST TOF~ONTOr {ONTARIO) MSG iZ8 - BUREAU,~IO0 4416) 5..q~-oElS$ 1299/89 IN THEm ATTE~ OF AN AI~BITRATION Under THE C~OWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Wong) Grievor -- and - The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE: R.J. Roberts' Vice-Chairperson E. Seymour Member D. Walktnshaw Member ; FOR THE C. Paliare GRIEVOR: Counsel - Gowling, Strathy & Henderson Barristers & Solicitors FOR THE D. Costen EMPLOYER: Counsel Human Resources Secretariat Management Board of Cabinet HEARING: February 23, 1990 INTERIM DECISION This matter arose by way of motion for adjournment. The majority of the Board grante~ the adjournment, delivering oral reasons at the hearing. Counsel for the Ministry requested that our reasons be issued in the form of an interim award and we granted this request. The circumstances giving rise to the motion for adjournment may be shortly sta~ed. It was agreed that the grievance herein complained of the denial by an insurer of medical benefits secured under the Collective Agreement. The Ministry indicated that if we went forward it intended to raise a preliminary objection on the ground that the Board did not have jurisdiction to hear a grievance of this nature. This was precisely the same issue.as.was before another panel of the Board. It seems that on October 27, 1989, a'panel of this Board, chaired by Vice-Chair M. Saitman heard final argument on a preliminary objection to jurisdiction in Re Sekhon and Ministry of Health, G.S.B. No. 418\83. A pre.vious panel in Sekhon, chaired by Vice-Chair Jolliffe, had upheld a preliminary objection to jurisdiction on the ground that the grievor did not have a right to pursue in arbitratiQn under the Collective Agreement a Claim for medical benefits. Such a claim, it was held, had to be pursued against the insurer. The Divisional Court quashed this award cn the ground that it failed to consider new wording Of the Collective Agreement which might have operated to confer jurisdiction over ~he grievor's claim. The matter was remitted to a new panel of The Board--ultimately the panel chaired by Vice-Chair Saltman--for redetermina~ion of the preliminary question. As indicated, this panel heard the matter in October but as of the date of our hearing their award had not issued. It was submitted on behalf of the Ministry that'in light of the fact that the identical issue had already been heard by another panel in a prior hearing, we should adjourn the matter until the issuance of its award. Reference was made to' Re Blake and Amalgamated Transit Union {1988), G.S.B. No. 1276/87 (Shime), wherein the learned Chairman stated: In.the private sector ad hoc boards of arbitration have a separate and distinct capacity to decide each case on its own merits. Recognizing that individual, but different, decisions on the same point or issue may create confusion, arbitrators have balanced the interests of individual decision making with predictability by generally adopting a policy that they will not depart from earlier decisions unless such decisions are manifestly in error. But the Grievance Settlement Board is one entity - it is not a series of separately constituted boards of arbitration. Under Section 20(1) of The Crown Employees Collective Bargaining Act there is "a Grievance Settlement Board" - that is, one Board. Under Section 20(4) the Grievance Settlement Board may sit in two panels and under Section 20(6) a decision of the majority of a panel is "the decision" of the Grievance Settlement Board. Thus each decision by a panel becomes a decision of the Board ~nd in our opinion the standard of manifest error which is appropriate for the private sector is not appropriate for the Grievance Settlement Board. The Act does not give one panel the right to overrule another panel or to sit on appeal on the decisions of an earlier panel. Also, given the volume of cases that are currently administered by this board, the continuous attempts to persuade one panel that another panel was in error only encourages a multiplicity of proceedings and arbitrator shopping which in turn creates undue administrative difficulties in handling the case load. ..Id. at It was submitted that in order to ensure that the Board speak with one voice, as emphasized by Chairman Shime in the above award, it would be appropriate to adjourn this matter pending the issuance of the Saltman award in Re Sekhon. It was submitted on behalf of the grievor that wh~le the foregoing was a valid policy consideration, there were other e~ually valid considerations which militated against granting the requested adjournment. The most Dressing of these, it was submitted, was that the grievor herein had a right to speedy consideration of her grievance. It was emphasized that because of the denial of her medical benefits, the grievor was not in receipt of any income therefrom, leading to a manifest and real prejudice which was compounded with every day's delay. After giving the foregoing submissions of the parties serious consideration, the majority of the Board decided to grant the adjournment. It did not appear to the majority that it would be productive to enter into a situation which presented a real danger of the issuance by the Board of two different decisions upon precisely the same jurisdictional issue. We informed the parties that there was some indication t'hat the award of the Saltman panel would be forthcoming in the not too distant future. It seemed to us that the determination of the issue in tha~ case might assist. in resolving the preliminary matter in the present case. We also acknowledged the hardship to the: griever of delay in the proceedings and suggested to counsel for the Ministry and the griever that it might be advisable to meet and attempt to work out an interim arrangement to assist the griever in this regard. Counsel indicated that they would enter into such discussions. For the foregoing reasons, the adjournment was granted. After the issuance of the Saltman award, this matter should be scheduled for hearing on a priority basis. We note for the record that the hearing need not be scheduled before this panel. By reason of our decision herein, we have not taken jurisdiction of the merits of the case. DATED at London, Ontario, this 24th day of May, 1990. icevChairperson "I dissent" (Dissent attached) E. Sey~r, Member / / alkins~aw, Member pg. § RECEIVED 990 CR ~WN EMPLOYEES GRIEVANCE SETTLEMENT BOARD GSB FILE 1299/89: OPSEU - WONG AND I~INISTRY C~F THE ATT~3RXtEY (~EN~RAL EMPLOYEE NOMINEE: EDWARD E. SEYMOUR D I S SENT With respect: I must dissent from the ~ajority ~ward which grants the adjo,lrnment in this case ~lnti! a decision is rendered in: RE SEKHCN AND MINISTRY OF HEALTH G.S.B. NO. 4~"~3, chaired by Vice-Chair ~. Sa!tman. In reaching its decision, the majority in this case, cited RE ~LAK5 AND A~ALGAMATED TRANSIT UNION G.S.B. NO. i275/'87 (Shime) as .justification for granting the requested adjournment. To proceed with this case, it was not necessary to overrule' the decision of another panel because, at the time of the hearing into ~his matter no decisio~ was rendered. As it currently stands, the granting of the adjournment has resulted in unaecessary delay. The Saltman decision cannot prevent the union from proceeding with this case. There. is nothing in the Blake decision to prevent a party from submitting a case to the GSB. I% only prevents contradictory rulings by the panel. if this panel heard the merits of the case on the ~ay scheduled, and reserved its ruling until the Saltman award was released, the decision would not necessarily have been contradictory to that award. Had this approach been taken, the grievor would at least have known the results soon after the Saltman decision, win or lose. All ~s panel has done in granting this adjournment, is to effeckiveiy delay a decision from being rendered. Having said that, we are appreciative of the efforts by the majority to seek for the grievor, a speedy hearing when the Saltman decision is rendered. At! of which is respectively submitted by, E.lward E.