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HomeMy WebLinkAbout1994-2624.MONTGOMERY_RANKIN.96-01-22 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180. RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 2624/94, 2625/94 OPSEU # 95C376, 95C418 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Montgomery/Rankin) Grievor - and - The Crown in Right of ontario (Ministry of Health) Employer BEFORE H Finley Vice-Chairperson J C Laniel Member D Clark Member FOR THE T McEwan GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE D Chondon EMPLOYER Counsel Mathews, Dinsdale & Clark Barristers & Solicitors HEARING August 30, 1995 September 18, 1995 November 27, 1995 January 17, 18, 19, 1996 GSB 2624/94, 2625/94 Intenm DecIsIon Respectmg the ExclusIOn of WItnesses Mr John Montgomery and Mr Blake Rankm filed separate gnevances (OPSEU 97C376 and OPSEU 95C377 changed to OPSEU 95C418) followmg theIr dIsmIssals on March 9 1995 as a result of theIr mvolvement m the same mCIdent on December 9 1994 They were partnered ambulance officers on the mght m questIon, and had worked together for some tIme In January and February 1995 pnor to theu dIsmIssals, a pre-dIscIplmary was held under the Public Service Act regulatIOns and the pre-dlsclplmarv hearmgs of both mdlvIduals were dealt WIth Jomtly The two dIsmIssal gnevances were forwarded to the Gnevance Settlement Board under separate covenng letters on March 27,1995, receIved on March 29, 1995 and were gIven the Gnevance Settlement Board file numbers of 2624/94 (Montgomery) and 2625/94 (RankIn) (The dIfference m year occurs because the Gnevance Settlement Board uses the fiscal year for Its filmg system.) A letter to the Gnevance Settlement Board mdlcates that the partIes had agreed on consolIdatIOn b) mId-June, although It was understood by one of the partIes that separate hearmgs were set for August 1 a.Tld August 11 1995 Nonetheless, It was agreed that for admmIstratIve convemence and effiCIency of the arbItratIOn process the two dIsmIssal gnevances would be consolIdated and the first hearmg date would be August 11 1995 The mltIal day of the Jomt heanng was held on August 30th, due a cancellatIon of the earher date, and the subsequent heanng days have all been Jomt. Further, an Intenm DeCISIOn respectmg mtenm remstatement was Issued followmg WhICh the Employer applIed both to have the order staved and Judlclallv revIewed, Both \-vere submItted Jomtly The applIcatIOn to sta) the order was dIsmIssed and the applIcatIOn for JudICIal reVIew subsequently WIthdrawn. Mr DaVId Chondon, Counsel for the Employer submItted that m order for the Board to hear the best eVIdence, that wlnle the first Gnevor to be called as a WItness IS gIVmg ll1S exammatIon-m-chIef and IS undergomg cross-exammatIOn, and then re-exammatIOn, the second should be excluded, Mr Chandan does not object to the first Gnevor remammg to hear the eVlcence of the second GrIevor, once his testimOny IS concluded. Mr Terry McEwan, Counsel for the Umon, opposes this motIOn on the grounds that no specIal cIrcumstances eXist to warrant a departure from the usual procedure of GrIevor s bemg present durmg the complete case Mr Chondon submItted that whIle the partIes agreed to the amalgamation of the two dIsmIssal grIevances for the sake of convemence and efficIency had the grIevances proceeded WIthout thIS agreement, the two GrIevors who would almost certamly have testIfied at each other shearIng They would have had no rIght to be present under the normal procedure of grantmg an exclusIOn of wItnesses, With the exceptIOn of the Gnevor and the AdvIsor untIl the) had gIven theIr eVIdence. Mr Chondon emphaSIzed that there are very sIgmficant Issues of credibIlIty In tills case and that It had become apparent, In both the openIng statement and In the eVIdence most speclficallv In the transcnpt of the commumcatIOns between the dIspatcher and the ambulance officers, how each Gnevor may have perceIVed thIS, what each thought about It and how each chose to respond. Mr Chondon IS of the OpInIOn that the Employer's abIlIty to conduct a full and proper cross eXamInatIOn IS sIgmficantly lImIted If both GrIevors remam present when one of them has yet to gIve eVIdence The Employer S motIOn IS based, he stated, on a Wish to have the best eVIdence come forward, untaInted by anythIng gIven by other wItnesses and that ItS concern IS further elevated In a case of thIs nature whIch deals WIth Issues of publIc serVIce and safety and the senous allegatIOns raIsed by the Employer WIth respect to these Mr McEwan argued that the Board, whIch has dIscretIOn In tills matter should accept the general rule set out In Re York (City) and CUPE, Loca/840 (1989),6 L.A.C (4th) (H.D Bro\vn) at p 349 The general rule at arbitration heanngs is that where one party request the exclUSion of a witness prior to the eVidence being submitted, that witnesses will be excluded from the hearmg with the exception of the grievor and an advisor to each party's representative [Emphasis added] He submitted that In order for a board to exclude the Gnevors, that there IS an onus on the emplover to show specIal circumstances why the general rule should be depaned from, The fact 2 that there may be Issues of credIbIlity ansIng between testlmony of the two Gne\ ors In thIS case In particula. with respect to the transmISSIon between the dispatch and the ambulance as set out In the transcrIpt taken from the dIspatch tape does not fall Into the category of speCial circumstance and does not warrant the exclusIOn of the Gnevors Counsel referred the Board to the folloWIng cases Re Ontario Council of Regents for the Colleges of Applied Arts and Technology in the form of Humber College and the Ontario Public Service Employees Union (for Academic Employees) (1991), Unreported, (McLaren) There were four female gnevors In thIS case InvolvIng five IndIVIdual gnevances allegmg sexual and/or age dIscnmmatIOn agamst the Chair of the Department of SocIal and CommunIty SerVIces The partIes were In agreement that the grIevances ought to be heard together on the basIs that the Uillon was allegmg a pattern of conduct WhICh was common to each of the gnevances. ThIs agreement gave nse to a request from the College that all of the Grievors, other than the one testIfvmg, be excluded throughout the examination m chief and cross-examination of anyone of them, After each had given therr own evidence L.1ey would proceed to sit in at the hearing in the usual fashIOn associated with arbitration hearings. It was submitted on behalf of the Union that such a procedure was both unruly and unfarr It was further submitted that the evidence of one grievance is evidence in the other grievances, Therefore, the Grievors ought to be able to be present throughout. The ratIOnale and rulmg of ArbItrator McLaren were as follows, The parties have agreed that the five individual grievances ought to be heard as a single matter If these gnevances had been heard a[s] five individual separate arbitration hearmgs then an order excluding witnesses would include the grIevors not associated with the particular mdlvidual grievance being arbitrated, They would be treated no differently than any other witnesses m that particular individual single proceeding, There is on this basis some justification for excludmg the GrIevors until they have given their testimonv The Board wants to ensure that the best evidence comes forward through full cross- exammation. The nature of the allegations demands a full cross-examinatiOn to further that evidentian process. In order to ensure thiS, there must be a full and effective cross-examinatIOn of each of the gnevors The Board is usmg its power to set its own procedure to amend the order excludmg witnesses. Therefore, the Board m orderIng the exclusion of witnesses is also ordermg that each of the GrIevors will be excluded during the testimony of an) other GrIevor unless the particular excluded indiVidual Grievor has testified. The onus m thIS case IS WIth the Uillon to prove the allegatIOns It has put fonvard, rather than the Emplover provmg allegatIOns agamst the Gnevors 3 Toronto Star Newspapers Ltd. And Southern Ontario Newspaper Guild, Local 87, (19q2) 28 L.A C (4th) 444 (Spnngate) Mr Spnngate was the sole arbItrator for the mdIvIdual suspensIOn gnevances of twelve emplovees suspended for alleged mIsconduct dunng a stnk.e The partIes agreed that these suspensIOns would be dealt wIth by way of 10 separate arbItratIOn proceedmgs. Durmg the mItIal hearmg da'" ArbItrator Spnngate made three procedural rulmgs, one of whIch related to the exclusIOn of potentIal wItnesses, a request put forward by Counsel for the GUIld, He mdIcated that although he felt that he had the right to retain both grievors throughout the hearmg, nevertheless when one of the grievors was giving evidence he would exclude the other grievor from the hearing room It was the pOSItIOn of Counsel for the Employer that m order to maintam the credibility and integrity of the arbitration process, [he] should exclude the grievors from the hearing room whenever any evidence was being given by a witness called by the union, Counsel submitted that the parties to the arbitration proceeding are the guild and the company and thus the grievors have no right to be in the hearmg room except when they themselves give evidence [EmphaSIS added] The Employer m thIS case, relIed on a Judgement of the Alberta Supreme Court, Tnal DIVISIOn, m Re C.J.A., Loc. 1525 and Norfab Homes LId. (1975) 62 D.L.R. (3d) 516 That case arose out of a hearing before a board of arbitratIOn with respect to the discharge of two employees, A majority of the board of arbitration held that the Union and the company were entitled to one representative each at the hearing and that all others, including the discharged employees, would be excluded from the hearing except when giving eVIdence The arbItration board subsequently upheld the discharge ofthe employees, The union applied to the court to quash the award on the grounds that the exclusion of the two employees from the hearing had been a breach of the principles of natural justice The court held that the arbitratIOn hearing had not been between the grievors and the company but rather between the Union and the company and thus a party to the proceedings had not been excluded from the hearmg. The court also held that it was not llTIproper for the arbitration board to exclude witnesses, including the discharged employees, from the hearing when they were not giving eVidence The baSIS for this deCIsion was set out as follows at pp ')23- 4 The arbitratIOn process does not have to be understood as a contest between the umon and the company although both are parties, but even If it IS so regarded, it certaml" is not, accordmg to the collective agreement, a contest between the gnevor and the company Somewhat of an analogous situatlOn in Court procedure is a crimmal action between the Crown and an accused, The 4 aggrieved who lays a complaint ma.., be a necessary witness but is not a part) to the litigation. The arbitratIOn board dId not exclude the 'parties to the arbitration and no complaint on that ground IS made The complaInt then resolves Itself to thIS - that the board excluded wItnesses except when giving their own testimony The procedure of excludmg witnesses, at least until their testimony IS given, IS the traditional Court procedure, ThiS procedure is meant to assure that evidence given by a witness is not coloured by the eVidence of a preceding witness and is considered good procedure There can be nothmg Improper m excludmg from the arbitratIOn hearing witnesses after they have given their eVidence smce the arbitratIOn is a pnvate proceeding, In Courts, which are public proceedings, WItnesses are usually allowed to remam m the courtroom after giving their evidence as their contributIOn to the case is concluded. However, Courts have held that if a witness might be called in rebuttal It IS better that he be excluded until his rebuttal eVidence IS concluded. The suggestion of the minority report that "all witnesses be present m order to hear and refute testimony of other witnesses" carries a suggestIOn that the witnesses constitute the tribunal or that witnesses are conducting the hearmg, ThIS obvious I} is a misunderstanding of the function of a witness, The conduct of the hearmg is in the hands of the parties to the hearing through their representatives and these representatives call their witnesses and call them if desired, [Emphasis added] Based on the above case, ArbItrator Spnngate reasoned as follows Except m special circumstances not present in this case, the only parties to an arbitration proceedmg are the relevant employer and the trade union, Accordingly, the grievors are not parties to these proceedings, In accordance with the reasoning in the Norfab Homes case, it IS Within my junsdictlOn to exclude the grievors from all or part of the hearing except when they themselves are giving evidence, It is also, however, within my jurisdiction not to exclude them, Although the grievors are not parties to these proceedings, they will be directly affected by the outcome of these proceedings, It IS their discipline records and their entitlement to be compensated for a one-month suspension which are in issue Presumably it is because grievors will usually be directly affected b} the outcome of arbitration proceedings that a general practice has developed of allowing a grievor to be present throughout the hearing, This practice was referred to as follows in Re York (City) and CUPE Local 840 (1989) 6 L A,C 347 eRD Brown) at p 349 The general rule at arbitration hearings is that where one party requests the exclusion of a witness prior to the eVidence being submitted, that witnesses Will be excluded from the heanng with the exception of the grievor and an advisor to each party s representative In the mstant case the two gnevors were allegedly mvolved in the same senes of mcidents, Should they hear each other's evidence, credibility issues not present ill other cases might arise, The exclUSIOn of the gnevors from the hearing room when the other grievor is giving eVidence however should be suffiCient to address any concerns m this regard, Accordingly 5 dunng the hearing I ruled that I would not direct that the gnevors be excluded from the heanng room \\- henever eVidence IS bemg given b} any witness called b\ the union Re United Food and Commercial Workers International Union A.F.L-CI.O-CL.C, Local 1000 and NatIOnal Grocers Co. Ltd., (1993) Unreported (MItchmk) ThIs case mvolves the dIscharge of five mdIvIduals alleged to have submItted a fraudulent SIck form, breach of trust and dIshonesty On a smgle mght shIft when they were scheduled to work, none reported for work, all called m SIck dunng the shIft and later submItted a claim for SIck pay" and when mtervIewed, demed the allegatIOn that the, had been playmg hocke} statmg mstead that he had slept through lus alarm and called mto work on wakmg All five were fired followmg a second mdIvIdual mtervIew at whIch each was gIVen an opportumty to change hIS stOry whIch none dId. At the hearmg Counsel for the Umon advised that the grievors will acknowledge that they had been playing hockey that mght, but will testify that the game ended prior to the start-time of their shift, that each then went their separate ways, and that each subsequently called in sick due to their own individual Circumstances, As for their original denial of playing hockey to the employer, the reasons the grievors chose to do that would be explamed, A..rbltrator MItchmk dealt WIth the Employer's request for the ArbItrator to mc1ude m hIS exclUSIOn of WItnesses each of the gnevors except when testIfvmg The ArbItrator commented as follows In a nutshell, what the company savs is that the grievors obviously conspired to concoct a story the first time, and the same will happen if each IS allowed to hear the evidence of the other no\\- ThIS ArbItrator conSIdered the Norfab Homes and the Toronto Star cases referred to above and commented that ArbItrator Spnngate struck the balance there by excludmg the gnevors only dunng the eVIdence of other gnevors He noted that for hIS part, he dId not fmd the reasonmg of the Alberta Court particularly persuasive Nor do I think an analvsls of who legally IS the 'part)" having carriage of a gnevance to be particularly instructive, beyond a context where the questIOn of such carriage in processmg the grievance to arbitration is the real issue But the matter in any event can simply be dealt With as a matter of discretIOn. There IS no doubt but that a much better way to enhance the credibility of the indiVidual gnevors, particularly given the account of events which has led to the discharges and grievances which are before me here would be to hear their evidence wlthout theIr allege co-conspirators bemg permitted at the 6 same to be present. The Spnngate fonn of order accomplIshes that. However, gIven what IS at stake, I view that as a tactIcal deciSIOn whIch ought to be left to be made by the grievors, Unlike, for example, an unfair-labour-practice proceedmg before the Labour Board, where individual discharges may affect the mterests of an organizmg trade UnIon as well, here the only competmg mterest to that of the companv is the gnevor's, and I am uncomfortable in excludmg them from any portion of the proceeding, absent a deCIsion which they make voluntanly to exclude themselves while their fellow grievors testify to enhance their own credibility in the detennination of this matter The company s request for me to make an order to exclude the gnevors from all or even part of the proceeding IS hereby denied, DeCision The gnevances m the mstant case were consolIdated by the partIes for practIcal and senSIble reasons There appear to have been no condItIOns to the consolIdatIOn of these files when the agreement was made However, consolIdatIOn can pose ItS own set of problems and one of these anses With respect to the exclUSIOn of one of the gnevors dUrIng the testImony of the other Once the partIes have agreed that the matters should be consolIdated, however, the context m whIch motIOns are conSIdered IS that of a consolIdated hearmg. The fact that these two ambulance-officer partners were dIrectly mvolved m the mCldent m questIOn, WIthout charactenzmg the mCldent, IS not m dIspute. The onus IS on the Employer m thIS mstance to make Its case and It IS up to the Umon to defend agamst the Employer's case The allegatIOns are agamst the Gnevors. There IS no assumptIOn on the part of thIS Panel that the findmgs or the outcome relatmg to each Gnevor must be the same The cases referred to above have sImIlantIes and dIfferences. In the Humber College the four Gnevors were bnngmg an allegatIOn agamst a smgle mdIvIdual and the partIes had agreed to consolIdate the mdlVIdual gnevances and the ArbItrator ruled that 'the nature of the allegatIOns demands a full cross-exammatIOn" and to achIeve that each Gnevor was excluded dunng the testImony of an) other unless she had already testIfied. In Toronto Star, the twelve Gnevors were suspended for alleged mIsconduct dunng a stnk!:" and It was agreed that the gnevances would be heard as ten separate gnevances ArbItrator Spnngate struck a balance and 7 ~ excluded the Gnevors from the heanng room only when another Gnevor was gIvmg testImOny rather than, as requested, exclUSIOn whenever eVIdence was bemg gIven by any wItness called b' the Umon. In Norfab Homes the Board consIdered two gnevances respectmg dIscharge of two employees and the maJonty of the Board ruled that each party could have one representatIve m the hearmg room and that all other wItnesses mcludmg the dIscharged Gnevors would be excluded. The Court upheld thIS exclUSIOn on the baSIS that the Gnevors were not techmcally partIes to the actIOn and that smce the Employer and the Umon were the actual partIes that the exclUSIOn of the Gnevors dId not constItute an exclUSIOn of a party The Court likened the Gnevors sItuatIOn to that of an aggneved person m the Cnmmal Court when the actIOn IS between the Cro"'TI and the accused, and that aggneved person IS sImply a necessaI) WItness City of York was aJob competItIOn case m whIch a normal exclUSIOn of WItnesses would have resulted m the sole wItness for the Umon, that IS, the Gnevor, remammg wlnle all the Employer s Witnesses would be excluded. The Board enforced Its InItIal order for the exclUSIOn of wItnesses With the nght of the gnevor to remam and of counsel for the corporatIOn to retam an adVIsor who mIght also be a wItness m the proceedmgs" Fmally ArbItrator MItchnik, m National Grocers, a dIsmIssal case m whIch the allegatIOns strongly suggested a conSpiraCY of dIshonesty amongst five gnevors, was not wIllmg to Impose an exclUSIOn on them for an',- part of the proceedmg. These rulmgs when conSIdered as a group, demonstrate that the rulmgs do not fit a pattern but respond to the partIcular sItuatIOns for a vanety of ratIOnale For mstance, gnevors were both excluded and not excluded m dIsmIssal cases It IS the practIce m arbItratIOn heanngs for \\1tnesses to be excluded on the request of eIther party, WIth the exceptIOn of a smgle adVIsor for each SIde, and the gnevor(s) The attendance of a gneyor at hIS or her hearmg IS not compulsory, smce that person IS techmcall) not a party to the actIOn and the Umon can contmue m a gnevor s absence Nor IS the attendance throughout a heanng an absolute nght of a gnevor However It IS accepted that a gnevor IS present, unless there are speCIal CIrcumstances whIch convmce a Board that hIS O[ her exclUSIOn IS approprIate under the partIcular CIrcumstances. 8 ThIS IS a dlSITIlSsal case In WhIch the Gnevors Jobs' and perhaps theIr livelIhoods and ongoIng careers are at stake It IS not a case In WhIch the Gnevors are brIngmg the allegatIOns It IS reqUIred, because of the senousness of the consequences to the Gnevors that the eVIdence whIch determInes the outcome be clear and cogent. Both partIes are aware of thIS and of the cruCial nature of the eVIdence of the declSlons and actIOns of the Gnevors dunng a short penod of tIme The Employer wIll try to prove that the actIOns and deCISIOns of the Gnevors were appropnate grounds for dIsmIssal, whIle the Umon Will try to prove that the actIOns and the deCISIons of the Gnevors dId not warrant dIsmIssal. The detaIls of preclselv what occurred durIng that penod of tIme are m dIspute At the same tIme there has been no allegatIOn of conspIracy between the two Gnevors relatIng to the InCIdent Itself, or otherwIse, nor has there been any suggestIOn by the Employer of prevIOusly untruthful conduct on the part of eIther employee Further, the Gnevors are not the only WItnesses. We have lIstened to the relevant taped portIOns of the commlL.'1lCatIOn between the two IndIVIduals whIle they were en route and the dIspatch tapes, and we have transcnpts aVaIlable of these communIcatIOns whIch have been subjected to a thorough eXamInatIOn and analysIs dunng the testImony of the dIspatcher That IS not to sa) that It clanfied or determIned the InterpretatIOn of each IndIVIdual Involved, We already have, and shall have more testImony from other WItnesses at the Ambulance Base as part of the Employer s case What we have not heard to thIS pOInt, IS eVIdence surroundIng the actIOns of the two Gnevors and theIr perceptIOns, thoughts, InteractIOns and declSlons whIle en route and InSIde the ambulance The Board does not belIeve that an assumptIOn can be made that 11 may be In the Interest of two gnevors In a SItuatIOn such as the one at hand to contnve to ensure that theIr stones are IdentIcal or almost so for mutual or recIprocal benefit. Another scenano IS that one gnevor mIght WIsh to ImplIcate the other m some way to deflect responsibIlIty from hmvberself, and present hIs/her eVIdence In order to achIeve that. Nonetheless, If It IS a matter of recall, It IS not dIfficult to see that, the second gnevor to testIfi could be mfluenced by the testImony ofthe first, although not necessanly to accept that eVIdence and repeat It. q The Employer IS askmg the Board to exerCise Its dlscretlOn to exclude the second Gne\ or to test1f\ to ensure ngorous cross-exammatlOn and quaht\ eVIdence The Board IS of the opmlOn that the mhlbltIon Imposed on the ngour of the Employer s cross-exammatlOn does not outweIgh that Gnevor s nght to be present throughout the hearmg, m thIS partIcular context. In ItS consIderatIOn of the eVIdence when commg to a deCISIOn. the Board must go through the process of analvzmg, exammmg and carefully welghmg the eYldence and as one would expect, the Board WIll gIve less weIght to eVIdence of a wItness when that wItness has been present for the exammatIOn-m-chJef, the cross-exammatIOn and the re-exammatIOn of a WItness Involved m the same mCldent. That IS a factor whIch the Board has taken mto account m arnvmg at Its declslOn. HaVIng consIdered the above reasons, It IS the deCISIOn OfthIS Board that It WIll not exercIse ItS dIscretIOn to order the exclUSIOn of the Gnevor who IS to testIfy last dunng the testimony of the Gnevor who testIfies InItIally In domg so the Board WIshes to draw attentIOn to the reduced weIght whIch the Board WIll In all probabllItv gIVe to eVIdence gIven In the presence of another WItness, partIcularly a WItness who IS closely Involved In the mCldent In questIOn. It now rests \vnh the Umon to deCIde whether or not It WIshes to have the Gnevor who IS to be called second, retIre from the hearIng room dunng the testImony of the first. - Dated at (!;Lf2 Wq H.S~~ January 22, 1996 "I Dissent" (dissent to follow) - - -- J C Lame! 10