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HomeMy WebLinkAbout1992-0104.Siatras.93-02-18· ' '. ONTARIO EMPLOYESDELA COURONNE , 'i ~ CROWN EMPLOYEEs DE L'ONTARIO SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G .IZ8 TELEPHONE/.T~LEPHONE: (4 16) 326- 1388 ~80,-RUE DUNDAS QUEST, BUREAU 2100, TORONTO· (ONTARIO). M5G IZ8 FACSIMILE,'TEI~COF'iE · (4 15) 326- 1396 104/92 IN THE MATTER OF AN ARBITRATION under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Siatras) Grievor - and - The Crown in Right of Ontario (Ministry of Health) Green's Ambulance Service Employer BEFORE: W. Kaplan Vice-Chairperson J. C. Laniel Member F. Collict Member FOR THE A. Lee GRIEVOR Grievance Officer Ontario Public Service Employees Union FOR THE M. Contini EMPLOYER Counsel Mathews, Dinsdale & Clark Barristers & Solicitors HEARING December 18, 1992 Introduction On March 18, 1 992, Dino Siatras filed a grievance claiming that he had' been .unjustly dismissed. By way of remedy Mr. Siatras sought reinstatement and full' retroactivity. The matter proceeded to a hearing at the Board, at which time the union requested an adjournment. The employer object'ed to the request, and we heard submissions from both parties with respect to this matter. At the conclusion of the hearing we granted the request, and advised the parties that written reasons would follow.. This award sets out the submissions of the parties and our reasons for decision. Union Submissions Ms. Lee advised the Board that the the union had made many efforts, but was Unable to contact the grievor. Mr. Siatr. as had moved without leaving, a forwarding address. He had no listed telephone number, and. efforts to contact him through other employees'proved equally unsuccessf, ul.' Ms. Lee requested that the Board adjourn the matter sine die to be brought on again by union application. In.Ms. Lee's submission, it would be appropriate in this case for the union to give up any rights to retroactivity .between the date of this hearing and .the union request that the Board schedule its continuation. Employer Submissions .'- Employer counsel began his submissions .by noting that the.'grievor'was a probationary employee who had completed 86 shifts in a 90-working-day probationary period. He was not, therefore, a long-service 'employee. Counsel pointed out that two pre-hearings had been scheduled in this case, and that the grievor had not appeared at .either of them. In counsel's submission, Mr. Siatras had an obligation to keep the union informed about his whereabouts, and he had failed to' do so. Mr. Contini argued that the union had ample notice of these proceedings, and that the employer had consistently indicated to the union that it-would not consent to an adjournment. AccordinglY, .counsel requested that the grievance be dismissed. Mr. Contini made some further submisSions with respect to retroactiVity and other issues should the Board decide to grant the. adjournment. In his submission, a second hearing date Should be Scheduled in the near future instead of being adjourned sine die. Counsel argued that retroactivity should end as of the first hearing date, and that there was a good case to be made for retroactivitY to end at' the earlier pre-hearing dates when the case might have .been settled. Counsel referred the Board to various authorities, and following the' hearing provided us with copies of relevant cases. In Taffinder 296/83 (Samuels) a clerical error resulted in employer representatives not appearing at the discharge grievance of Mr. Taffinder. An employer representative was contacted, and when he arrived he explained the mistake and advised the Board that he was unable to proceed.' It was agreed by the parties that the employeris case would be that..the grievor's record justified discharge, but that the culminating incident was a minor matter. Union counsel advised the Board that th'e grievor had been out of work for a considerable period of time and had traveled to Toronto from Windsor once to prepare the case, and again for the hearing. The union requested the grievor's immediate reinstate ment. The Board reviewed :some of the jurisprudence, on adjournment .applications and then granted the union's request; .. . ...we ruled that the employer had been given-proper notic'e of the hearing and had a full opportunity to present its evidence and argument; that there was no sufficient reason for the employer's inability to on on with the case at the appointed .time; and that the employer had failed to show just .cause for the dismissal. The Act calls for a "full opportunity" for each party to present its evidence and argument, but this does not mean that the Board must grant 'an adjournment to cure a clerical error, where 'to do so would be unfair in all the circumstances (at 4). It is important to emphasize the. fact that our decision was based on a balancing of interests of both parties. The inability of the employer to proceed at the appointed time would mean considerable hardship for the grievor. It would be some time before the Board could reconvene to hear-the evidence and argument, Given that the culminating incident was a minor matter, the grievor should not be put to the additional emotional and financial strain of further delay. In Grimonte, 148/78 and 176/78, the Board held that it had no power to award Costs under the Crown Employees Collective Bargaining Act, therefore we could not relieve the grievor here by an award of costs. Because the grievor's past record remains in his file, it can be used by the employer again if there is another culminating incident. Thus the employer has not lost the right to use the record to dismiss the grievor if there is a further disciplinable offence. On the other hand, if the grievor now becomes a model employee, the employer will not suffer an injustice in reinstating the grievor. We would not have considered reinstatement if it were not for the fact that the parties agreed that the culminating incident was a minor matter. In effect, the matter before us was discipline for a minor incident., but an incident w. hich triggered consideration of the whole past record in assesSing the appropriate penalty. Had the culminating 'incident been a serious offence (eg. assaUlt, on an inmate), the Board would have been prepared to overloOk. Mr. Benedict's .error in advising the Attorney-General of the date of the hearing (at 6). Employer Counsel submitted that the instant case was also an appropriate one for the Board to deny the adjournment request given that the union had plenty of notice of the 'hearing, and that the employer had attended .two pre-hearings as well as this hearing at considerable inconvenience and expense.. In an alternative submission, counsel requested costs for-the adjournment, and he cited a number of- cases to the Board in support of this application including the decision of the Divisional court reviewing the Taffinder case, supra (unreported decision dated April 13, 1984). In overturning the Board's decision, the Divisional Court foUnd that the refusal to grant an adjOurnment dePrived one of the parties of its statutory right to be heard. The Divisional Court also observed that an alternative the Board could have pursued "would have been to require that the Crown compensate the GrievOr for all expenses incurred in connection with the abortive hearing. To refuse the adjournment outright and to proceed, as it did,', effeCtively to deal with the grievance, was to ignore completely the principle of fairness to which the Board's discretion must always be subject" (at 6)..Counsel submitted that this decision recognized the Board's jurisdiction to award costs in an adjournment case, and he requested that the Board make such an award in this one.. Decision After hearing the submissions of the parties, the Board adjourned to consider this matter. It 'then reconvened and advised the parties that _the union's request would be granted with strict conditions. The union was given a three-month adjournment and the hearing was, in consultation with the parties, scheduled to reconvene on April 2, 1993. The.union was advised that the Board would not grant any further union adjournment requests, and that if the grievor failed to appear on April 2, 199 3 his grievance would be dismissed. The union representative indicated that if the union continued to proVe unable to locate the grievor prior to' the next hearing date, she' would notify employer counsel and the Board in advance of that date, and thereby eliminate the necessity of actually reconvening'.these proceedings. In our .view, the statute, arbitral and judicial authorities, natural justice.' and procedural fairness require us to grant the adjournment.- Adjournment applications are not uncommon in labour relations matter~,' and in general there is no award of costs. In this case, all that we know is that the grievor cannot be located. This is not a case where the grievor-has been notified of proceedings and simply has not bothered to appear. In this case, the grievor has reCeived no notice because the union does not know where he is. To deny the adjournment request would be to eff. ectively deny the union the right to be heard,-for' in the absence of. the grievor it cannot inform itself or take instructions with respect to the fundamental issue in dispute: the grievor's discharge from employment. It is possible, it may even be likely, that the griev0r has abandoned his grievance. It is also possible that there is some legitimate explanation for his .failure to keep in contact with his bargaining agent: All that we know is that the grievor has been discharged. He has certain statutory rights, and the Crown Employees Collective Bargaimng Act also requires that the parties be given an opPortunity to be heard. In similar cases the Board' has granted union adjournment requests "to avoid any possibility of a denial of natural justice..." (see Brockelbank 928/86 (Verity) at 2). The Divisional Court's decision in the~ Taffinder case confirms the importance 'of this consideration and that decision is, of course,, directly relevant to the instant case. Accordingly, we are of the view that the 'request for an adjournment should be granted. The fact that this is a discharge case has figured prominently .in our deliberations. We are also of the view, however, that it would be inappropriate to grant the adjournment,request on the terms sought by the union. Having filed a grievance, the grievor has a responsibility to keep in contact With his 15argaining agent. We have' exercised our discretion in the instant case to grant a three-month adjournment. If the grievor does not contact his bargaining agent within this period the only logical conclusion one can draw is that he has abandoned his grievance, and should he not'appear on the next scheduled day his 'grievance will be dismissed. Having carefully considered the emPloyer's alternative submission with respect t° costs, we have decided to deny that request. Assuming that the Board has the jurisdiction to award costs, we are of the view that this is' not an appropriate case to do so. The union is properly discharging its duties as bargaining agent, there has been no abuse of process, and there is no question but that the union adjournment request is made in good faith. It is not necessary at this time to make any rulings with respect to retroactivity should the grievance proceed and should the grievor prove successful, we are, however, 'mindful of the employer's, legitimate interests, and the fact that it has come prepared to proceed at both pre-hearings and at the hearing scheduled on December 18, 1992. Additional Observations Employer counsel advised .the BOard that the employer intended to raise certain preliminary issues dealing with the Board's jurisdiction in this case. very simply, the employer intends to argue that there was no "difference" between the parties and that the Board was, accordingly, without jurisdiction to hear the case. The union advised the Board that it was not prepared to deal with these preliminary issues. Normally it would be sensible and preferable to hear and determine these issues on the first day of hearing, and in that way make best use of the parties and the Board's resources. However, in the absence of the grievor, it would have .been somewhat difficult, if not impossible, to do so.for the grievor is the only person who can advise the union of the factual underpinnings of this dispute.' Following discussion among the parties it was agreed that this matter could be dealt with when the Board reconvened on April Z, 1992. DATED at Toronto this lSth daY of February 1993. William Kaplan Vice-Chairperson J.C. Laniel Member . " I D{ssent " (Dissent attached) F. Collict Member DISSENT RE: G.S.B. #0104/92 (SIATRAS) This Member is not in concurrence with the majority in this award. The sequence of events in this case was as follows: 1. The griever was dismissed prior to termination of a 90 day probationary period on March 13, 1992. 2. In a grievance dated March 16, 1992 he claimed unjust dismissal. 3. On June 5, 1992 a pre-hearing was scheduled to hear the grievance. The grievor failed to appear. 4. The ~Employer counsel requested the case to be scheduled before the G.S.B. The request was denied and a seco'nd pre-hearing was scheduled for August 7, 1992. Once again, the gri~vor failed to appear. 5. A formal hearing at the G.S.B. was scheduled for December 18, 1992. The - grievor failed to appear. 6. At each of the three hearings indicated above, the Union requested an adjournment because it had been unable to contact the grievor to notify him of the place and date of hearing. 7. HOwever, on each of these occasions the Employer had travelled from Simcoe, Ontario. to appear at the hearings. Counsel for the Employer was in attendance at these hearings and had been. prepared to proceed with the case. These three occasions have involved considerable expense and inconvenience to the Employer. In the view of this Member, the appropriate disposition of this case by the Board is to dismiss this grievance for the following reasons: 1. BALANCING OF INTERESTS a) The grievor initiated the action in this case. He has an obligation to keep his Union representatives aware of where he can be contacted in order to proceed with the case. b) The grievor has'a right to file a grievance concerning his termination. However, in a consideration of the "balancing of interests" amongst the parties,, there is a "collectivity" of interest that surely must be considered in relation to the right of an individual who has not even completed a 90 day probationary period and who has failed to appear some nine months after filing his grievance. These collective interests are, i) The provincial taxpayer who must.finance the three aborted hearings and, as a result of this award, at least one further . hearing on April 2, 1'993; (and possibly more); ii) . The grievor's Union representatives who have been embarrassed on three separate occasions when they have been required to request an adjournment; iii) Other grievors who might have had their legitimate grievances' pursued at the pre-hearings and the December 18, 1992 hearing; and · iv) The Employer who has not only incurred the legal and travel expenses associated with three adjournment hearings, but who is expected to operate an ambUlance service on an ongoing basis in recognition of the potential return of a terminated probationary employee. ,, 3 2. ABANDONMENT OF GRIEVANCE Approximately 9 months have passed since the grievor filed his grievance; and, based upon this time interval - and, without any evidence to the contrary, one can reasonably conclude that he has abandoned his grievance. In a somewhat comparable situation in this respect, when the grievor failed to appear for a second G.S.B. hearing, Vice-Chairman Verity commented, "In our opinion, no useful'purpose can be served by granting a further adjournment...having been satisfied that the Union has made reasonabl efforts to contact the Grievor, without success, the Board is satisfied that the Grievor has effectively abandoned his Grievance." (p.2 G.S.B. #928/86, BROCKELBANK) The Brockelbank award also quoted with approval, G.S.B. #621/86, #622/87 (BROOKS), "...the individual grievor has Control regardless of the Union's position. It is the .(:lrievor who must brincl his case. The Union stands ready to assist. But the Union has no information about the circumstances involved except, what it can learn from the grievor. ...It seems clear to us thatthe .clrievor has abandoned his .clrievance, and therefore they are dismissed." (underscoring added) 3. STATUTORY RIGHT OF THE PARTIES TO BE HEARD a) As set out is section 18(2)(c) of CECBA, the grievor has the right to file a grievance. HoweVer, he does not have a statutory right to be heard. b) Section 19(1) of CECBA provides that the parties have the right to present to a Board their evidence and submissions. 'The.UniOn is a party; the grievor iS~not. The Union was present at both of the pre- hearings and the Board hearing on December' 18, 1992 and had 'the opportunity to be heard. c) Mr. O. Shime, in-G.S.B.#1276/87 etc. (BLAKE et al), made the above position abundantly clear, as follows: "Section 19 of the Crowm Employees · Collective Bar.~ainin.(:l Act reflects the theoretical position that it is the union, and not the individual, that controls access to the arbitration process..." Thus it is apparent .that the arbitration of disputes is to resolve "differences" between the "parties". Section 1 (1)(k) of the Act defines a party as the employee organization and the employer - an individual is not a party." (G.S.B. #1276/87 etc. p. 2) (underscoring added) and made a finding at page 7, "Thus, there is no specific extension of the employee's right to proceed to arbitration and it is only "the matter" that is entitled to proceed in accordance with the arbitration procedure in section 19. The employee while given the right to grieve is not specifically given the right to proceed to arbitration." d) Clearly, the UniOn was present at the subject hearings and had the opportunity to be heard. In this respect, therefore, this SIATRAS case differs from the TAFFINDER case (GiS.B. #296/83) cited at page 5 of the majority award which was judicially reviewed and quashed by the Divisional . Court. Our majority award at page 5 concluded from the 5 Divisional Court ruling, "In overturning the Board's decision, the Divisional Court found that the refusal to grant an adjournment deprived one of the parties of -its statutory rieht to be heard" (underscoring added) However, the statutory right to be heard was not denied to the Union in this SIATRAS case. e) In the majority award it is' argued, at page 6, that, "To deny the adjournment reqUest would be to effectively deny the union the right to be heard, for in the absence of the grievor it cannot inform itself or take instructions' with respect to the fundamental issue in dispute ..... " This Member does not diSagree with this statement. However, the G.S.B. is not an organization that can waste time and resources. (to t'he detriment of other employees whose cases could have proceeded on the three aborted headng dates), while awaiting the appearance of a grievor who has filed a grievance and then fails to communicate with his union representatives for a period of nine months. f) It should be noted further that there were preliminary matters associated with the Board's jurisdiction in this case of which the Union had prior knowledge. However, the Union claimed that it was'not prepared to proceed with these matters; notwithstandina the fact that these preliminary obiections were contractual and associated with the probationary status of the arievor, as opposed to the' merits of the 6 termination of employment. In the view of this Member, the Union, ~tt the very least, should have been prepared to proceed with these preliminary matters on December 18, 1992 at the time of the Board hearing. 4. NATURAL JUSTICE At page 6 of the award, the majority stated that the adjournment should be granted for various reasons, including "natural justice and procedural fairness". However, these matters surely have been observed in this case, for the following reasons: · Proper notice was given to the parties concerning date, time and location of each of the three hearings; · There were no irregularities or objections raised by either party cOncerning the constituency of the Board; · Both parties were appropriately represented at the hearing by counsel; and, · Both parties received a hearing at the Board. The only shortfall in the process was the absence of one witness - the grievor. The Union (the party).made its rePreSentations to the Board; but to repeat the earlier excerpt from G.S.B. #621/86, #622/86 (BROOKS), at page 3, "...the individual grieVor has control regardless of the Union's position. It is the grievor who must bring his'case. The grievor has failed to proceed with these grieVances.in spite of the best efforts' of the Union to help him do so ... the grievor has abandOned his grievances." 5. SUMMARY a) The Union has tried to communicate with the grievor concerning three separate hearings associated with his grievance over a nine month . 7 period. The Union apparently has been unable to do so. b) At the Board hearing on December 18, 1992 the Union' also was not prepared to proceed with the preliminary contraCtual issues associated with probationary status and the jurisdiction of the Board, all of which could have proceeded in the absence of the witness ('the .(:lrievor), inasmuch as these matters do not involve the merits of the actual termination of the qrievor, c) With reference to the balancing of interests,, the Ontario taxPayer has incurred the expense of three aborted hearings associated with this case; and now faces a fourth hearing on April 2, 1993, and possible continuations. d) Certainly requests for adjournment are granted by the Board. However, valid reasons are required. The jurisprudence cited in this dissent would indicate that the failure of a grievor to appear to assist the Union in pursuing his case does not receive a favourable response from the Board. e) The statutory rights 'of the parties have been observed in this case.· They have had an opportunity to be. heard. . f) Natural justice and procedural fairness have been'obserVed in this case. g). Mr. Siatras, the grievor, initiated the subject grievance. He had a ·' responsibility to inform his Union as to where he might be contacted for the. purpose of pursuing h'is interests. He has failed to do so.- 8 h) This case does not concern a long term employee with substantial seniority rights and related benefits. Mr. Siatras had not even completed the 90 day probationary pedod. In view of all of the above, this Member would have dismissed this grievance.