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Home My WebLink About1999-1001.Pickett et al.01-11-28 Order ~M~ om~o EAfPLOYES DE L4 COURONNE _Wi iii~~~i~T DE L 'ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#1001/99 1002/99 1224/99 1357/99 1565/99 1566/99 1567/99 1820/99 2019/99 UNION# 99B854 99B855 99E121 99D119 99D120 99D121 99D122,99D203 99D204 99D205 OODI13 00A154 00A155 00A156 00A157 00A158 00A159 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (PI ckett/McCormI ck/Hol den) Grievor -and- The Crown In RIght of Ontano (Mimstry of CorrectIOnal ServIces) Employer BEFORE Damel A Harns Vice-Chair FOR THE GRIEVOR John BrewIn, Labour RelatIOns Consultant c/o Ryder Wnght Blair & Doyle Barnsters & SOlICItorS FOR THE EMPLOYER Len HatzIs, Counsel Legal ServIces Branch Management Board Secretanat HEARING November 16 2001 ORDER [1] By Order of the Board dated October 31 2001 gnevances filed by Doug PIckett, Shelly Holden and Debra MattIngly were consolIdated, It beIng clear that there were common Issues of fact and law raised In them. The matters had prevIOusly been dealt wIth on the understandIng that Mr PIckett's gnevances would go forward and the other gnevances would be heard subsequently on the basIs that any findIngs of fact made In Mr PIckett's gnevances would be applIed In the other gnevances It was then determIned that any efficIencIes In takIng such an approach would be offset by the potentIal that the other gnevors mIght wIsh to partIcIpate In the heanng ofMr PIckett's gnevances as Interested thIrd partIes The dates for the heanng were set pnor to the consolIdatIOn order [2] Pnor to the first day of heanng, the Umon notIfied the gnevors of the date and It both requested and reqUIred theIr attendance One gnevor Shelly Holden, told the Umon she could not attend because she had recently gIven bIrth. No other detaIls were provIded. At the commencement of the next heanng day the Umon asked that the scheduled dates be adjourned In VIew ofMs Holden's request. The employer was prepared to consent to the adjournment only If preemptory terms were agreed to The Umon was not able to agree The Board made an oral rulIng that there was no eVIdence before It on whIch It could decIde to adj ourn the consolIdated gnevances In balancIng the Interests of all of the gnevors and the Employer such a decIsIOn could not be made wIthout some eVIdence AccordIngly the matters were ordered to proceed and the balance of the day was used to complete pre-heanng productIOns [3] When the heanng resumed the Umon renewed ItS request for an adjournment. The partIes were In essentIal agreement on the folloWIng facts 1 Ms. Holden is a grievor and a prospective witness in the grievances of Doug Pickett and Debra Mattinglv 2 She has been advised of the hearings and has been made aware of her interest in attending as a grievor to give instructions and as a witness. She has been advised that her grievances mav be dismissed if she does not attend. Indeed she was selVed with a summons to attend the hearing. 3 She has not communicated directlv with counsel for the Union but did speak with a staff representative of the Union last week prior to the November 8 hearing. 4 Ms. Holden had a babv six weeks ago 5 She advised the Union staff rep Diana Liu that she was in no emotional condition to attend the hearings (it having been e.\.lllained to her that she was needed as a witness and as a grievor) She was not even in an emotional condition to discuss the matter 6 The Union files an email note from the staff rep advising on the conversation in which the rep advises that in her view Ms. Holden did not seem to be in an emotional condition to attend. 2 7 Ms. Holden has been in touch with the Union in the past 10 davs about another matter completelv unrelated to this and in which her emplovment interests are involved. However she has failed to return phone calls following up on this initial contact. [4] The Employer agreed to the IntroductIOn of the emaIl referred to In paragraph 6 as an accurate account of the telephone conversatIOn between the staff representatIve, DIana LIU, and Ms Holden, referred to In paragraph 5 [5] In addItIOn, one of the other gnevors, Ms MattIngly gave eVIdence to the effect that she and Ms Holden were both pregnant prevIOusly at the same tIme In 1992 Ms MattIngly's eVIdence need not be described In detaIl Suffice It to say that as a result of that shared expenence she knew that dunng Ms Holden's her earlIer pregnancy Ms Holden exhIbIted behavIOurs that are consIstent WIth those attnbuted to her now Ms Holden's current SItuatIOn was descnbed by way of the emaIl message from DIana LIU. [6] The Umon argued the In all of the CIrcumstances It had secured the best eVIdence avaIlable to It and that eVIdence JustIfied an adjournment of the scheduled heanng days The gnevor was said not to be well enough to attend because of complIcatIOns folloWIng the bIrth of her chIld some SIX weeks ago [7] The Employer opposed the Umon's applIcatIOn. It noted that these gnevances arose from IncIdents that occurred In 1999 the allegatIOns of whIch have SInce hung over the heads of members of management. It also submItted that there was no medIcal eVIdence to support the applIcatIOn. In VIew of the gnevor's seemIng abandonment of the process, her gnevances ought to be dIsmIssed. In the alternatIve, OPSEU should be ordered to go ahead wIthout her In the further alternatIve, the Employer submItted that the matters should be set down for a heanng on a fixed date, faIlure to attend on whIch would result In dIsmIssal of the gnevances [8] In consIdenng the Umon's request, the Board has been provIded wIth scant eVIdence of the reasons underlYIng the request. Nonetheless the reasons advanced are grounded In personal health consIderatIOns faced by the gnevor that should be accommodated If establIshed. In the Board's VIew the eVIdence provIded IS sufficIent to raise a real concern that the gnevor IS not able to attend the heanngs for legItImate reasons The Board also notes that the dates were set pnor to the consolIdatIOn of these matters [9] With respect to the dIsmIssal of the gnevances, thIS IS not a case where the Umon would be unable to proceed In the absence of the gnevor There are two other gnevors Involved who are able to assIst counsel Should those matters go ahead wIthout Ms Holden, It would be open to the Umon to contInue to represent her Interests by lItIgatIng her gnevances as well The presence of the gnevor IS generally seen as necessary for the proceedIngs to take place however the gnevor IS not a party to the proceedIngs The Employer and the Umon are the partIes Should the Umon ultImately not be able to produce the gnevor It may proceed wIthout her If It so elects 3 [10] In the result, the heanng on the ments IS adjourned to a date to be fixed. However the Board does not have suffiCIent InformatIOn to fix a date for the resumptIOn of the heanng wIthout the further assIstance of the partIes AccordIngly the matters wIll resume on the next scheduled heanng date to fix a date for the heanng on the ments Dated at Toronto thIS 28th day of November 2001 10\ - Damel A Hams, Vice Chair 4