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HomeMy WebLinkAbout2012-1875.Gaunce.16-12-08 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2012-1875, 2012-1876, 2012-2036, 2012-2037, 2012-2038, 2012-2039, 2012-2040, 2012-2041, 2012-2042, 2012-2043, 2012-2322 UNION#2012-0411-0013, 2012-0411-0014, 2012-0411-0017, 2012-0411-0018, 2012-0411-0019, 2012-0411-0020, 2012-0411-0021, 2012-0411-0022, 2012-0411-0023, 2012-0411-0024, 2012-0411-0028 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Gaunce) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Barry B. Fisher Vice-Chair FOR THE UNION Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Stewart McMahon Treasury Board Secretariat Legal Services Branch Counsel HEARING November 21, 2016 - 2 - Decision [1] The Grievor personally has requested that she be permitted to withdraw the balance of her grievance and proceed to have the balance of the issues put before the Ontario Human Rights Tribunal. Currently the OHRC file is deferred pending the outcome of this grievance process. (2013 HRTO 1258). [2] OPSEU is not requesting the balance of the grievances be withdrawn. The Employer is opposing the application. [3] The Grievor indicated that she wishes to withdraw the balance of her grievances for the following reasons. 1. It has taken from 2013 to resolve 1 out of 3 aspects of this case, namely the need for future accommodation. She is quite properly concerned that it will take another inordinate amount of time to resolve this matter at the current rate of progress. 2. She claims to incur personal costs every time she has to come to Toronto for a hearing. 3. She is concerned about being away from her family in Ottawa if the matter proceeds to hearings in Toronto. She indicates that she understands that a hearing before the OHRT would be in Ottawa. 4. Although she admits that her OPSEU lawyer has been “awesome”, she now wants to represent herself. I will address her points in the same order. 1. I agree that this matter has taken an inordinate amount of time to move along. I will insure that the balance of the hearing is held in a timely fashion. I will do this by setting fixed time limits for the balance of this hearing. 2. The Grievor admitted that through the provisions of the Collective Agreement and OPSEU policy, she does not incur any income or expense loss to attend at GSB hearings in Toronto. 3. GSB Board policy dated March 19, 2013, reads as follows: As the Board schedules and assigns new cases, such cases will be held at the Board or in a location proximate to the VC's residence(s), as will all continuation dates involving such cases. As of April 1, 2013, all multi case Corrections days will be held at the Board. - 3 - An exception to the foregoing will be effected to address any special circumstances such as an accommodation or the need to take a view. The Grievor’s reasons to have the hearings in Ottawa do not rise to the standard of either special circumstances or accommodation as set out in Board Policy. Therefore the hearing will continue to in Toronto. 4. Grievors do not get to act for themselves or choose their own lawyers. [4] These were the only reasons given by the Grievor for her request to withdraw. At no time did the Grievor express any concern about her ability to get a fair and just result before the GSB. [5] Under arbitral and GSB case lase, as this case has started but is not yet completed, I, as Vice Chair, have the discretion to allow the withdrawal. [6] In McKeown v Royal Bank of Canada ( 2001 F.C.J. 231) O’Keefe J. held that under the unjust dismissal section of the Canada Labour Code, a non-unionized complainant has a unfettered right to withdraw a complaint any time prior to the issuance of the award as the Adjudicator in fact loses jurisdiction automatically if the complaint is withdrawn, [7] In my opinion the McKeown case is distinguishable from the current grievance in that the Union has carriage rights and secondly, the weight of arbitral law indicates that the matter of a withdrawal is one of the Arbitrators’ discretion, not a loss of jurisdiction. [8] I choose not to allow the withdrawal of the claim for the following reasons: 1. All of the reasons given by the Grievor for this request for withdrawal, except the request that the hearing be held in Ottawa, have been dealt with above. 2. Only the Union can withdraw a grievance, not an individual Grievor. (See OPSEU v. Ministry of Community Safety and Correctional Services (Tardiel et al, Vice Chair Albertyn GSB #2005-1443, 2005- 3884) at paragraphs 7, 12 and 14). 3. The issue that has already been decided (the degree of accommodation required by the Grievor to do her job as a C.O.) is related to the balance of the grievance issues remaining to be adjudicated (namely whether in the past the Grievor was discriminated against or harassed because of her need to be accommodated and if so, the appropriate remedy). I therefore make the following procedural order. - 4 - 1. The Grievor’s request to withdraw the balance of the grievances is refused. 2. Within 90 days of the issuance of this decision, the Union is to provide full particulars of all allegations of discrimination and harassment that it intends to rely upon. The Union will be restricted to those particulars at the hearing. I note that the Grievor asked for 90 days because of the upcoming holidays, as I had originally proposed a shorter time period, in an effort to not cause further delay. 3. Once the Particulars have been delivered, the Ministry will have 30 days to notify the Union of any preliminary objections. I will then deal with those objections either by way of written agreement or at a hearing. 4. Together with the particulars, the Union is to advise the Employer of its best estimate of how many days of hearings it requires, taking into account all the relevant issues. The parties will then advise the GSB of this and it will schedule the dates in Toronto. It is my intention to schedule as many consecutive days as possible, both to speed up this process and to limit the costs and inconvenience of all parties. 5. In my original Order of June 7, 2013, I ordered the bifurcation of both liability for past events and remedies. I now order that both liability and remedy issues will be determined in the same set of hearings. In other words, Items 2 and 3 of paragraph 2 are now combined. This is being done to try to expedite this process. Dated at Toronto, Ontario this 8th day of December 2016. Barry B. Fisher, Vice Chair