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HomeMy WebLinkAbout1989-1393.Koncz.90-04-10- ' ONTA RIO EMPLOYES DE LA COURONNE :. CROWN EMPLOYEE$ DE ~ 'ONTARIO i[ GRIEVANCE C,OMMISSION DE ' SETI'LEMENT REGLEMENT BOARD DES GRIEFS t~ DUNDAS STREET WEST, TORONTO, ONTARIO M5G IZ8- SUITE 2'IO0 TELEPHONE/T~'L~PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z8 - BUREAU 2100 (a15) 598-0688 1393/89, ~394/89 1395/89 IN THE HATTER OF A/~ ARBITRATION Under THE CROWN E~PLOYEES COLLECTIVE B~i~GAINING ACT Before TEE GRIEVANCE SETTLERENT BOARD BETWEEN: OPSEU (Koncz) Grievor - and - The Crown in Right of Ontario (Ministry of Community & Social Services) Employer BEFORE: N.V. Dissanayake Vice-Chairpersofl J'. Carruthers Member D. Clark Member FOR THE D. Wright GRIEVOR: Counsel Ryder, Whitaker, wright and Chapman Barristers & Solicitors FOR THE' S., PattersOn EMPLOYER: Counsel Legal Services Branch Ministry of Community Social Services HEARING: March 7, 1990 DECISION Placed before the Board are three grievances filed by the grievor Mr. George Koncz, Board file 1393/89 dated July 18, 1989; Board file 1394/89 dated September 1, 1989; and Board file 1395/89. dated October 17, 1989. The grievances dated July 18 and October 17, 1989, while differently worded in essence raise the same allegation and relief. The grievor claims that the Employer has engaged in a course of conduct of harassment and discrimination against him and that such conduct is in contravention of article 18.1 of the collective agreement which requires the Employer to continue to make reasonable provisions for the safety and health of its employees during hours of their employment. The remedy sought is an order to cease and desist from such alleged conduct. The third grievance dated September 1, 1989, raises a distinct allegation, namely, that the Employer is in violation of article 27.1 of the collective agreement by refusing to accept grievances from the grievor. The parties agreed that the last mentioned grievance should be adjourned until the Board has dealt with the preliminary issue arising out of the other two "harassment and discrimination" grievances. The Board consented to this agreement to adjourn file no. 1394/89. 3 The Union advised the Board that the grievor and the Union had filed two unfair labour practice complaints with the Public Service Labour Relations Tribunal with respect to the same alleged incidents of harassment and discrimination against the grievor by the Employer. The allegation before that tribunal is that the Employer was engaging in such conduct because of the grievor's exercise of rights under th__e Crown Employees Collective Bargaininq Act. The relief sought is a cease and desist order. We were further advised that the Tribunal has already had one day of hearings on the two consolidated complaints and that a further six days of hearings have been scheduled during the month of May 1990. Both counsel felt that further hearing dates may be required to complete the hearing. Counsel for the Union moved that the two harassment and discrimination grievances before the G.S.B. be adjourned pending .the determination of the two complaints by the Tribunal. Counsel for the Employer opposed tke motion for adjournment. In support of the adjournment request, Counsel for the Union pointed out that While the legal issues before the Tribunal and this Board are different, the factual allegations were identical. Both boards will be required to hear the same evidence relating to the alleged incidents of harassment and discrimination over a period of two years. In the circumstances, Counsel urged the Board to exercise its discretion to adjourn the hearings with respect to the two grievances. The contention was two-fold: (1) That there was a real risk of the two Boards drawing different conclusions of fact, which would be very harmful to an already tense labour relations environment (2) That the conduct of two protracted and repetitive hearings before the two Board's would be a waste of resources. Counsel-suggested that there was a real possibility that the disposition of the two complaints by the Tribunal will result in the resolution of these two grievances without the need for a hearing. Even if a hearing was required before the G.S.B., the Union and the grievor were prepared to be bound by the factual determinations made by the Tribunal. Therefore the hearing will be significantly shortened. Counsel contended that the conduct of two parallel hearings couldlead to practical difficulties. As an example, he pointed out that despite ther~'being an order for exclusion of witnesses in the hearing before the Tribunal, an individual who is a witness in that hearing was present as advisor in the hearing before us. 5 Counsel for the Employer in opposing the adjournment relied on the decision of this Board in 'Beard, 371/89 (Gorsky). In that case the Board rejected a motion to adjourn a grievance pending the disposition of a criminal trial arising out of the same alleged incident. Aside from relying on that decision, Counsel argued that an adjournment will result in prejudice to the Employer. It was pointed out that the Tribunal hearing may not be completed until the summer or fall of 1990 and that the decision may take several more months to issue. That may result in the management witnesses being called upon to testify some 2 1/2 to 3 years after the first alleged incident. Because of fading memories this will be prejudicial. After receiving submissions from the parties, the Board orally ruled granting th~ motion for adjournment. The Board found merit in the positions of both counsel. However, the Board ultimately was of the view that the balance of convenience, the interests of the parties as well asLthe institutional interests of the Board would be best served by granting the adjournment. We are of the view that the reasoning in the Beard decision is not applicable to this case. There the Board held that the fact that there was a related criminal proceeding pending was not a reason to adjourn the hearing into a grievance in the absence of exceptional circumstances. The Board relied on an arbitration award in Re University of Western Ontario, (1988) 35 L.A.C. (3rd) 39 (Dissanayake). A review of that award, particularly at pp. 40-41, (quoted by the Board at p. 10) indicates that the arbitrator was heavily influenced by the distinct nature of criminal proceedings as compared to an arbitration proceeding. Particularly, it was noted that the nature of the burden of proof, the party litigants, the rules of procedure and evidence and the remedial consequences were all different. Those considerations are simply not applicable when comparing proceedings before the Tribunal and this Board. The only prejudice claimed by the Employer related to the fading memories of its witnesses. While this no doubt is a valid concern, ih the particular circumstances here, the real prejudice is minimized. Firstly, the witnesses in any event would be required to testify before the Tribunal in May 1990 if not later. At that point their memories would'be refreshed to. the extent it would be possible at that point of time. Secondly, it was agreed by everyone that the hearing before the G.S.B. would also have to continue on a number of additional days. Given the case load of the Board it is doubtful that this hearing can be completed and a decision rendered any earlier than the Tribunal hearing. These 7 practical problems cannot be ignored in exercising our discretion. We agree with the Board in Beard that the "efficient use of resources" argument by itself should not be a basis for granting an adjournment. However, in our view, it is a factor which must be considered with all of the other factors. Given the possibility that the disposition of the complaints before the Tribunal may lead to the resolution of these grievances or at least to an abbreviation of proceedings before the G.S.B., that is an additional factor that favours the granting of the adjournment. This is more so considering that the Union and the grievor have undertaken to be bound by the factual findings of the Tribunal. In light of the foregoing, we are of the opinion that on balance an adjournment is justified in the circumstances. The hearings in Files 1393f89 and 1395/89 are accordingly adjourned pending the disposition of the related complaints before the Tribunal. File 1394/89 is referred to the Registrar to be rescheduled for hearing. This panel is not seized of any of these grievances. Dated this ]Oth day of April, 1990 at Hamilton, Ontario. Nimal V. Dissanayake Vice-chairperson -' J. Carruthers Member D. dlark Member