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HomeMy WebLinkAbout1990-0100.Singh.90-09-10 .,. <> ,- - ONTARIO EMPLOYES DE LA COURONNE , CROWNEMPLOY/:ES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE I SETTLEM ENT . I REGLEMENT BOARD DES GRIEFS 180 DUNDAS s'TREET WEST. TORONTo' ONTARIO. M5G IZ8. SUITE 2100 TELEPHONElrtLtPHoNE 180, RUE DUNDAS OUEST. TORONTO, (ONTARIO) M5G Il8- BUREAU 2100 (416) 598-0688 100/90 IN THE MATTER OF AN ARBITRATION Under THE CROWN E~PLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN - OPSEU (Singh) Grievor - arid - .,', The Crown in Right of Ontario (Ministry of Transportation) Employer - and - G. J. Brandt Vice-Chairperson G. Majesky Member H. Knight Member . FOR THE D. Harris ., GRIEVOR Counsel .1 Ryder, Whitaker, Wright & Chapman Barristers & Solicitors " FOR THE M. Failes EMPLOYER Counsel I . Winkle r , Filion & Wakely Barristers & Solicitors BEARING: Augùst 3, 1990 l -~ .. . ! J l 2 INTERIM RULING The grievor was suspended on March 9. 1990 and subsequently dismissed on April 9,1990. He grieves both the suspension and the dismissal. The issue on its merits is whether or not the grievor has breached one of the terms of settlement reached by the parties and made part of an earlier award of. the Board issued on November 30, 1989. (361/89 (Gõrsky)). According to those terms the grievor was reinstated in employment on condition that he not have an absenteeism rate (inclusive of all days absent except vacation) which exceeds 11 in any 12 month period. ~~is term shall remain in force for two years from the date .:-1: reinstatement and if the employee breaches the terms he shall ~~ subject to discharge. When present panel of the Board convened to ~ear the case on its merits the Union requested an adjournment~ That .a:qquest was .' opposed by- the' Employer. Accordingly it is necessary to rule on the request for the adjournment. There is no significant disagreement as to the facts relevant to the request for the adjournment. At a meeting on March 20,1990 the Union, on behalf of the grievor, requested the Employer to provide the grievor with certain diaries which he claimed were in his desk and which he needed to refresh his memory concerning various absences. Although some documents were given te the grievor at the t.ime,. officials of the Ministry checked the griever's desk but were unable to find any diaries. The union was I ! -- -~- 0, . I ) 3 so advised. There was apparently no more contact between the parties until Tuesday, July 31. 1990 when. counsel for the Ministry forwarded to counsel for the Union all of the documents which the Employer intended to rely on at the hearing. At that time no request was made for any diaries. However. the matter of the diaries was. raised in a telephone between counsel at 5.00 p.m. on the eve of the August 3rd hearing. Counsel for the Union was' again informed that no diaries bad been found. However, he did not advise the Employer of his intention to seek an adjournment the following day. Prior to the commencement of the hearing on August 3 counsel for the Employer provided to counsel for the Union an envelope containing the balance of the material whi~h had been taken from the grievor's desk. He advised the, Board that none of that material appeared to be particularly relevant and that it did not include a diary. The contents of the package were not examined by counsel for the Union. Nor were they examined by ,the grievor himself as he was not present at the hearing. We are'prepared, albeit with some considerable hesitation, to grant the adjournment requested. We are concerned that if we were to proceed to' hear the case,' wi thout the grievor having had an opportunity to have access to the material which he had sought. there is a real and.substantial risk .that he would be prejudiced in his ability to answer the evidence put in against-him. Having said that it is clear that it is the grievor and the ,,' . I ) i 4 Union who are entirely responsible for t:he situation which has arisen. The grievor and the Union knew, as early as March 20,that the Employer was unable to find any diaries in the desk. Yet no, ( further inquiries were made by anyone until the eve of the hearing. In these circumstances it is clear that the Employer deserves to be protected from liability in respect of any compensation that might be owing (in the event that the grievance is ultimately successful on its merits) for the period by which the ultimate resolution of tflis matter is delayed as a result of the adjournment. Before leaving the matter we wish to record our views \ concerning the decision of the griever to absent himself from the hearing. Had he been present he would have been able to examine . the material produced at the hearing. That material may well have contained the very information which we had requested. Moreover., he would have been available to be examined by counselor the Board with respect to the nature of the material requested and its relevance to the case on its merits. He has, however, by his absence, rendered it difficult if not impossible for the Board to proceed. Counsel tor the Union. advised the Board that the reason for his absence was that he was anxious tha t, without being fully prepared. he would not be able to put in the best case possible. We acknowledge that a discharged employee seeking reinstatement will be anxious at the. hearing constituted to decide upon' his claim. But surely that is no reason to be absent from the hearing. '. -- ..,,' . I 5 This is particularly the case where. as here, his involvement might have been limited only to the issue surrounding the request for the' adjournment. As noted his presence would conceivably have. been helpful to. the Board. Yet the Board and counsel were denied even that minimal courtesy. The Board has commented frequently on the difficulties involved in processing. a large volume of grievances. To assist in that regard the Board has established a system designed to ensure r that matters proceed as scheduled. That process is not well served wh~n a grievor voluntarily absents himself from a hearing for which counsel have prepared and at which the panel has attended. Had this case' involved anything other than a discharge from , employment we would;- in all probability, have proceeded in the absence of the grievor. This is not a case where ~a grievor _as unable to attend or could not be located. Rather, he chose not to attend. In the circumstances he could hardly be heard to complain . if the Board were to proceed in his absence. However, considering that the matter raised is a serious one involving the grievorts continued tenure as an employee, we are . satisfied that justice is best- served by an order which adjourns ,the hearing while at the same time protecting the Employer from any prejudice arising from a delay for which it can in no sense be held responsible. ê Consequently, it is the order of the Board that the case be adjourned and rescheduled by the Registrar as soon as possible. In view of the fact that this panel heard no evidence on the merits I~ I ,.' '. , I . , , i 6 the case may be scheduled to be h~ard by a differently constituted panel. Further, it is a term of this order that, in the event that the grievance, succeeds, the Employer shall not be held liable to pay any compensation in respect of the period from August 3, 1990 to the date that the grievance is scheduled to be heard on its merits. Dated at LONDON, ~Ont. this 10th day of Septemb er 1990 ß67. G. J. Brandt, Vice Chai;tperson " I DISSENT" (Dissent to follow) G. Majesky, . Member t\ (Át. c.. ( '<- -- n. Knight, Member.