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Home My WebLink About1993-1530.Fournier.95-09-22 - ._ --rfl $' - l ~ .... ' : ~ ' .', ',' ONTARIO EMPLOYES DE LA COURONNE '~#:ir ", '.':" CROWN EMPLOYEES DEL 'ONTARIO 11111 GRIEVANCE COMMISSION DE ~ SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. MSG lZ8 TELEPHONEITELEPHONE. (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) MSG lZ8 FACSIMILE ITELECOPIE (416) 326-1396 GSB # 1530/93 OPSEU # 93E549 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Fournier) Grievor - and - The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE W Kaplan Vice-Chairperson P Klym Member F Collict Member FOR THE E McIntyre GRIEVOR Counsel Cavalluzzo, Hayes, Shilton, McIntyre & Cornish Barristers & Solicitors FOR THE P Thorup ~ EMPLOYER Counsel Filion, Wakely & Thorup Barristers & Solicitors FOR THE S McCallum on his own behalf. THIRD PARTIES R Bishop on his own behalf HEARING Conference call September 8, 1995 ~.......--- ~ .-- :ey"" ~ 2 ) Introduction This case, which has yet to proceed on the merits, has now been the subject of three interim orders This is the fourth, and it concerns a request from the employer that two additional grievance$ be consolidated with the matters already before the Board. As this matter is next scheduled to proceed on October 25 & 26, 1995, and as the Board's earlier procedural directives could not be fully complied with until this consolidation request was disposed of, the Board, on September 8, 1995, held a conference call with the parties and third parties at which time the employer made its consolidation request, the union opposed it, Jand the third parties sought standing should the request be granted Position of the Parties on Consolidation Request In brief, the employer took the position that the additional two grievances, introduced as exhibits #4 and #5 at one of the earlier hearings, should, given that they were directly related to the matters presently before the Board, be consolidated with those matters and heard in a single case Counsel argued that this made procedural sense, would conserve the resources of all of the parties, and was entirely consistent with the Board's well-established jurisprudence The third parties took the position that if the consolidation request was granted, they should be given access to any particulars which were filed and, at a minimum, provided with an opportunity to apply for standing. Union counsel, however, opposed the request. In her submission, it was important to consider the nature of the two additional grievances One of t them, dated June 8, 1 994, took issue with the results of a posting, and involved, counsel advised one of the third parties who served as member of I ~ ~ I ,jj\ ) 3 the panel It would be unheard of, counsel argued, to give standing to a panel member in a job competition case. In addition, the second grievance, dated October 20, 1994, was also, in the union's submission, similarly distinct from the matters already before the panel and so should not be made the subject of a consolidation request. Moreover, with respect to both grievances, counsel argued that consolidating them with the instant case would only delay the proceedings, cause considerable discomfort to the grievor, who would find such an order highly prejudicial, and unnecessarily extend an already protracted and lengthy process with little benefit to anyone Accordingly, for these and other reasons, union counsel took the position that the consolidation request should be denied. In the event that consolidation was ordered, the union took the position that neither third party should have access to any of the particulars, nor should either third party be given standing rights with respect to that part of the proceeding Decision Before setting out our reasons for decision, it is useful to set out the text of the Board's Consolidation Order' WHERE ORDER MAYBE MADE Wnere two or more proceedings are pending before the Grievance Settlement Board and it appears to the Grievance Settlement Board that, (1) (a) they have a question of law or fact in common, (b) the relief claimed in them arises out of the same transactions or occurrences, or (c) for any reason an order ought to be made under this rule, <: -.... ~ ~~. I ,i, 4 I I the Grievance Settlement Board may order that, j (d) the proceedings be consolidated, or heard at the same time or one immediately after the other; or (e) any of the proceedings be, (i) stayed until after the determination of any other of them. (2) In the order, the Grievance Settlement Board may give such dir~ctions as are just to avoid unnecessary costs or delay and, for that purpose, the Grievance Settlement Board may dispense with service of a notice of listing for hearing and abridge the time for placing a grievance on the hearing list. I After carefully considered the arguments of the parties, we are of the view I I that this is an appropriate case to direct the consolidation of the two I outstanding grievances with the matters already before this panel of the Board We reach this decision for a number of reasons. Having examined the two grievances, it is clear that they are, at the very least, significantly related to the matters already before the Board. One, the grievance dated June 8, 1 994, alleges, among other things, "discrimination," "harassment," and violation of the Ontario Human Rights Code resulting from the employer's failure to award the grievor a posted position Obviously, this allegation relates to the earlier grievances as similar misconduct is alleged in them. The second grievance, dated October 20, 1994, is even more on point. It also alleges discrimination and harassment, and is not dissimilar in both statement of grievance and remedy sought to the two grievances already before us Quite clearly, this is an appropriate case for consolidation I I L__ \ _~ ... ~u .. ,~ -) . '\ ,~ ~ .~ / 5 In reaching this decision, we are not unmindful of the fact that a great deal of time has passed since the original two grievances first came before the Board In part, this has been the result of the need for an extraordinary -, number of procedural directives, not to mention an unsuccessful attempt to resolve the matter with the assistance of a mediator However, this is a complicated case involving diverse interests, and it is appropriate that care be taken with respect to the process that is followed. It should also be pointed out, having found that the two additional grievances raise common questions of law and fact and, moreover, seek similar relief, that consolidation is both in the interest of the parties, as well as the Board It would make no sense for this panel of the Board to begin hearings on the two grievances before it, while another panel became seized with matters essentially arising out of the same circumstances Nor would it make much sense to simply adjourn the additional grievances sine die until the conclusion of this case That would simply result in the rehearing of many of the same matters which will be subject to review in these proceedings. Accordingly, and for the foregoing reasons, we direct the consolidation of the two additional grievances with those already before the Board. Exchange of Particulars Having ordered consolidation, it is now necessary to turn to the matter of particulars. Consistent with the Board's earlier order, the union must prepare particulars of the two additional grievances and provide them to the employer for reply In addition, these particulars should also be provided to the Board for review If, following our review, we determine that the two third parties, or any other person, might have an arguable case ~ - -~, 6 to make for third party status, we will direct that such persons be given copies of those particulars for the sole purpose of making such an argument. Obviously, it is not possible, at this time, to determine wn~ther t." "\.....; third party status will be granted. However, it is worth noting that, ,one 'Qf , ....-...:'"'. _. __ .-.P these grievances refers to a job competition, and it is the Board's view that, in general, the interests of a panel member where the results of a job t competition are grieved are properly, and absent extraordinary circumstances, the interests of the employer and should, therefore, be advanced by the employer Other Matters A number of other matters relating to the exchange of particulars and the status of certain documents were discussed during the telephone conference call. The Board is satisfied that as the consolidation request has now been resolved, the parties can, in accordance with the Board's earlier directive, and as agreed during the conference call, complete the exchange of particulars and documents, not to' mention our other procedural directives, and thereby ensure that the hearing proceed on its next scheduled date DATED at Toronto this 22nd day of September 1995 (/,/ ,,------ William Kaplan Vice-Chairperson {Ie ~l/~ - I p(;jm F Co