HomeMy WebLinkAbout1976-0001.Tam.76-03-31CROWN EMPLOYEES
GRIEVANCE SETTLEMENT
6OARO
416/965/1410
-
O”m3”‘S Park
Toronto, Ontario
M?A 125
Between:
IN THE MATTER OF AN ARBITRATION
Under The
CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
'Mrs. S. Tam
And
The Ministry of Revenue
North York Regional Office
Thornhill, Ontario
(Grievor)
(Employer)
Before: 0. M. Beatty Chairman
E. J. Orsini Member
P. A. Sigurdson Member
For the Grievor
G. Richards - Ontario Public Service Employees DniOn
&r the Employer
W. E. Stanley - Ministry of Revenue
Hearing: Westbury Hotel, Toronto Ontario, February 19, 1976
1.
Mrs. S. Tam, who until December 22, 1975 was employed as a
Key Punch Operator at the North York Regional Assessment Office
of the Ministry of Revenue,prieves that on that date she was
dismissed without just cause. However and at the outset of the
hearing, Mr. W. E. Stanley,for the employer,argued that in fact
Mrs. Tam had not been dismissed but rather had been declared to
have abandoned her position pursuant to s.20 of The Public Service
Act. Indeed and notwithstanding that he had, prior to the hearing, -
apreed with the griever's representative as to certain facts with
respect to the circumstances surroundino the grievance, Mr. Stanley
claimed,for the first time before this Board,that because Mrs. Tam
had abandoned her position her grievance was not arbitrable before
this Board. After hearing argument with respect to this preliminary
issue, the Board adjourned to consider the matter. Upon reconvening
the Board advised the parties, for the reasons that follow, that we
would, pursuant to the procedure outlined in an earlier award, (Re
Eriksen 12/75),reserve our decision on this jurisdictional issue and
proceed to hear the evidence with respect to the merits of the case.
In that earlier award the Board outlined in some detail the
procedure it expects to follow when matters of jurisdiction or
arbitrability are raised before it. In that decision the Board
referred to and adopted the reasoninq of other arbitrators in the
private sector who have stated:
These later awards appear to be much mre sensitive to the ramifications of so dividing the hearing. They note
such d bifurcation could in some instances operate to the prejudice of one of the parties and~necessarily in all cases will result in further delay in the resolution
3.
of the real issue between thee parties; Re Int'l Union of
Electrical Workers, Local 549, and Sylvania Electric
(Canada) Ltd. f1972), 24 L.A.C. 361 [SimnaxJ; Re ifiram Walker & Sons Ltd. and Distillery Workers, Local 61 (19731,
3 L.A.C. (2d) 203 Adams). In that latter award Professor
Adams considered the premises underlying historical approach taken by arbitrators to this issue and finding
them wanting, offered specific guidelines that arbitrators
should consider before acceding to such a request to split
the hearing. He stated (at pp. 205-6);
Arbitration hearings, in themselves, guite apart
from the outcome, can be quite therapeutic in
the sense of "speaking one's mind" and "revealing
the facts". ~Furthermxe, it may be nxxe frustrat-
inq for a griever to be denied this "experience"
and forced to listen to a very techiiical presen-
tation on the issue of arbitrzbility. "hirdly,
many issues ofarbitrability cannot be resolved
without considering the merits (this obser- vation has become very relevant to the case at
hand). For these reasons, I find both Ottawa
Citizen, supra, and Construction Products Inc.,
supra, insufficient justification for elon-
gating the period between the conduct grieved
and final resolution.
One important function of arbitration is to
supply "speedy relief" to the pxties, and
this function should not be overridder. by
mere speculation, in fact, it is mmmn
knowledge that this speculation is not the reason why a party will ask for a separate
hearing on the issue of arbitrability.
Parties normally make this reqzst in order that the hearing take on a structure thzt
will instire that the arbitrator does not
let the merits of the grievande affect his decision on its arbitrability - and there is nothing improper in this motivation.
Arbitrators are only hunan and can >e af-
fected by the merits of a grievance in
dealing with a technical argument concern-
ing the availability of relief. An
arbitrator's appmach to the issue of
arbitrability may, therefore, be little mire than a "sham" and this affects the integrity
of the entire process. Consequently, if a
bifurcation of the hearing will strengthen
the integrity of the arbitral process with-
out unduly impinging upon its function of providing "speedy relief", reqwzsts that
7 . .
this be done should be given serious con--
sideratibn. But, they should not be acceded
to unless:
(1) the party requesting the adjournment made this fact Anown to the other
party before the hearing date to
enable the other party an opportunity
to refrain from having his witnesses
in attendance;
(2) the merits appear to be severable
from the issue of arbitrability;
(3) the delay will not seriously affect
the availability of witnesses; and
(4) no other serious prejudicial effect,
uncompensable by money, will be
experienced.
RE FABRICATED METALS AND STAXPIA'G LTD. AND WITED
AUWMOBILE NORKERS, LOCAL 222 (19751, 9 L.A.C.
(Zd) 161 (Beattyl
In the case before us then, manifestly it would have been in-
appropriate to do otherwise than proceed to hear the evidence with respect
to the merits of the dispute while reserving our decision on the issue of
arbitrability. In the first place, as noted above, the employer at no
time advised this Board or the grievor or her representative that he intended
to raise such a preliminary objection. That alone would have been sufficient
grounds on which this Board could have founded its decision to reserve on
the issue of arbitrability. Very simply, the manner in which the employer
has raised the issue of arbitrability in the grievance before us strikes
this Roard as being both discourteous and insensitive to the interests of
the.grievor and her representative to say nothing of its effect on the
parties'relationship. Particularly is this so where,as here during
the communications between the .parties prior to the hearing, certain
facts on the merits of the grievance had been agreed to, the griever and
her representative could have had no expectation that such an issue would
be 'raised.
However a second and equally fundamental reason supports the
,..
procedure adopted by the Board with respect to the challenge to its
jurisdiction to hear this case. By the very nature of the challenge
made by Mr. Stanley, it is apparentthat the issue of arbitrability
is inextricably bound up with the merits of the grievor's case. That
is, and reqardless of our jurisdiction under s.20 of The Public Service
A&, it is manifest that the employer may not unilaterally usurp the
jurisdiction of this Board and deny the grievor the opportunity to
come before us by asserting that her grievance is one of abandonment
rather than dismissal. Ultimately that determination is one this Board
must make pursuant to the mandate with which it is charged under s.1811)
of The Crown Employees Collective Bargaining Act. However, in making
that determination, this Board would, of necessity, be required to hear
the evidence surrounding the termination of the grievor. That is, it
would only be when that evidence had been properly placed before this
Board that a final determination could be made as to whether Mrs. Tam
had abandoned her position or had been dismissed. Accordingly and in
order to make a determination on that issue it is to that evidence that
we now must turn.
In most material respects there was little difference between
the parties as to the events giving rise to Mrs. Tam's grievance. AS
noted at the outset, Mrs. Tam was employed as a Key Punch Operator for
the Ministry and had been so employed since October 1974. In that
capacity, according to Nr. C. Cassidy, the Assessment Services Manager
5.
of the North York Regional Office, she was a diligent and capable
employee and a person whose services he was anxious to retain. On or
about October 15, 1975, as a result of a phone call she.had received
from her brother-in-law in Hong Kong, Mrs. Tam approached Mrs. Wall,
her immediate supervisor, about the possibility of, taking two months
off work as a vacation in order that she could return to Hong Kong to
attend to certain familty matters that had been the subject of the phone
call she had received, and as well to seek certain medical care for a
chronic shoulder and back condition which had caused her some pain for
some considerable period of time. More specifically, and with respect
to the family business for which Mrs. Tam's presence was required in
Hong Kong, it is sufficient to note for purposes of this award, that
while in Hong Kong Mrs. Tam, acting under a power of attorney bestowed
upon her by her husband,was expected to represent and act for him in
the settling of certain matters of his late mother's estate. In any
event, after making this request of Mrs. Wall, the latter apparently
decided that the matter should be referred to Mr. Cassidy for his
consideration. After discussing the matter with her,Mr. Cassidy caused
to be prepared an application in which Mrs. Tam would request four weeks'
1.~ vacation leave from October 21 until November 18 and four weeks'leave
without pay from November 19 until December 21. After Mrs. Tam had signed
this application Mr. Cassidy referred it to his imnediate superior Mr. R.
Guinn who is the Regional Assessment Commissioner for the North York
Region. After considering her request with Mr. Cassidy, Mr. Guinn decided,
because of the heavy volume of work associated with the annual mailing of
assessment notices and the returning of the assessment rolls which would
take place during this period, that he simply could neither afford nor
justify the absence of one of his four Key Punch Operators for that length - (
6.
of time. However and believing that Mrs. Tam did have urgent family
business to attend to in Hong Kong and that in any event she was entitled
to her four weeks'vacation, Messrs. Guinn and Cassidy agreed to propose
a compromise to Mrs. Tam in which, in addition to her four weeks'vacation
from October 21 to November 18, she would be given an additional two weeks
of leave without pay from November 19 until November 28, 1975. Again
Mr. Cassidy prepared an application embodying this request and again
Mrs. Tam signed it.
Having concluded this arrangement Mr. Cassidy testified that
several days later, indeed just prior to her departure, he sought out
Mrs. Tam to ensure that she understood the terms of the arranpement and
to reiterate that she would be required to be back at work on the morninq
of December 1, 1975. However, during the course of this conversation it
is apparent that both Mr. Cassidy and Mrs. Tam considered and discussed
the contingency that Mr.s. Tam might not be able, for unexpected reasons,
to return pursuant to the terms of their arrangement. Indeed, according
to Mrs. Tam, at one point during this conversation, Mr. Cassidy advised
the grievor not to worry if she couldn't return on time because"if she had
to resign he would ensure she would be rehired again". In fact and almost
in anticipation of her late arrival, Mr.. Cassidy provided Mrs. Tam with
his address and phone number which was to be utilized by Mr. Tam to
contact Mr. Cassidy if he,were advised by his wife that she would be
unable.to return by the December 1st deadline.
In any event Mrs. Tam left for Hong Kong on or about October 20,
1975. During the course of her stay Mrs. Tam sought and received certain
medication from a Chinese herbal doctor for her back and shoulders
condition and as well was treated for an ankle injury she suffered shortly
-
7.
after her arrival in Hong Kong. However and with respect to the family
matters which, according to her own and her husband's evidence, had been
the motivating, if not primary, inducement for her travels to Hong Kong,
it transpired that sometime in the middle of November it became apparent
that the presence of her husband would be required in Hong Kong in order
to finally settle the family's affairs~. Accordingly and to advise Mr.
Tam of the need for his presence in Hong Kong and to advise Mr. Cassidy
that she would be unable to return on December 1, Mrs. Tam and her
in-laws phoned Mr. Tam sometime during the week of November 17, 1975..
Several days after receiving this call and pursuant to the arrangement
made by.Mr. Cassidy and Mrs. Tam, Mr. Tam phoned Mr. Cassidy to advise
him of his wife's inability to return to work on December 1st. Although
the witnesses differed as to what was actually said during the course of
this conversation, according to Mr. Tam, Mr. Cassidy did say he would see
what he could do about it. In any event within a few days of this con-
versation Mr. Tam himself left for Hong Kong and neither he nor his wife
again contacted the Ministry or any of its officials until Mrs. Tam
showed up for work onDecember23, 1975.
It is, essentially, those circumstances on which the employer
claims that the grievor had abandoned her position pursuant to s.?.O Of
The Public Service Act and on which the grievor claims she was dismissed
without just cause. Section 20 of The Public Service Act provides:
A public servant who is absent from duty without
official leave for a period of tw weeks or such longer period as is prescribed in the regulations m?y by an instrument in writing be declared by his deputy minister to have abandoned his position, and
thereupon his position becomes vacant and he cea.ses
to be a public~servant. R.S.O. 1970, c. 386, ~7.20.
From its terms it is manifest that if it were established that an emplovee
8.
had been absent without official leave for the period described the
deputy minister would be authorized to declare that the employee had
abandoned his or her position and regardless of the actual intentiOn
of the employee. ~.That is, and in sharp contrast with those grievances
in the private sector wherein the employer alleges that an employee
has quit his or her job,,(see,Re Ma&lan.Bloedel .Industries ltd.), lfarmac
Division And Pulp Workers Of Canada; Local ~8 (1974) 5 L.A.C. f2dl 337
(wei er) ; SKemptville
Operating Engineers, meal 796, (2975) 8 L.A.C. (2d) 144 (O'COnnor)),
under s.20 if the employer is able to estabiish simply that the employee's
?. absence was "without official leave", the deputy minister may declare
the employee to have abandoned his or her position regardless of the employee's
actual intention. In this sense, if an analogy is to be drawn to the
private sector, it would more properly be to those cases in which an
employer, pursuant to the terms of the agreement, strips an employee of
his or her seniority rights for having been absent without leave for some
prescribed period of time. (See.ReGmadian 'Tyler Refrigeration Ltd. And
United Steelworkers, .r,ocal$585 (1974) 8 L.A.C. f2dJ 63 fshimd)
However it is equally plain from the language of s.20 that
simply being absent from work for some period in excess of two weeks
would not support a declaration of abandonment. Rather,the condition
precedent which must be satisfied in order to validate a declaration
/I
of abandonment is that the absence be "without official leave". k
Necessarily .then if it could be established that an employee was absent,
on official leave but the employer persisted in its assertion that the
employee had abandoned his or her position, this Board could properly
9.
assume jurisdiction of a grievance filed by that employee and afford
the appropriate relief. Very simply, in such circumstances, if the
employer remained adament in its position thatan employee had abandoned
his or her position in circumstances in which s.20 did not apply, it
would both be proper and necessary for this Board to declare, in the
absence of any other claim by the employer, that the grievor had been
dismissed without just cause and to afford him or her the necessary
relief.
In essence then the task confronting this Board is to determine
whether Mrs. Tam was absent from December 1 until December ,232 "without
official leave". Although Regulation 749, promulgated under The Public
Service Act is replete with sections providing for leave,of various
descriptions and durations, no where in that Act or in the Regulation
h ~ is the phrase "official leave" defined. In the absence of such a
definition one must presume that the phrase "official lea~!.~@~s
to leave for which the requisite authorization actually was, would have
been, or should have been granted. That leave which was properly
authorized would properly be characterized as "official leave" is manifest.
Similarly there could be no dispute that an employee who suffered some
unexpected injury or illness could properly be said to be absent on
"official leave" even and although of necessity such leave could not
have been authorized until after his or her absence had occurred.
Equally we believe one would be obliged to hold that an employee was
on official leave, even and although the employer may have refused
to authorize his or her absence, if it could be established that the
employee did in fact have reasonable and justifiable reasons for
his or her absence. Put somewhat differently it would not suffice
10.
for an employer who claimed that an employee had abandoned their position
to argue that a leave was or would have been denied. Rather and to the
contrary, to sustain the finding that an employee was absent "without
official leave", it would be incumbent upon the employer to establish
such leave was not unreasonably, discriminatorily or arbitrarily d
withheld. \
Applied to the facts of the case before us it is plain that
the grievor did not either before or after her trip to Hong Kong
receive "official leave" for the period of her absence from December
1, 1975 until DecemberE3, 1975. Indeed and to the contrary on the
evidence it is clear she was expressly denied any leave for that
period. In the result the single issue which remains for this Board
to determine is whether the employer acted reasonably in denying her
that leave. More specifically and inthe circumstances of the grievance
before us in determining whether the employer acted reasonably in
withholding or denying official leave two different inquiries must be
made. That is one must determine not only whether Mrs. Tam had a
valid and legitimate-reason for failing to return to work on December 1,
1975 but in addition, and even assuming that she did not, one must
consider the effect of Mrs. Tam's conversation with Mr. Cassidy in
order to determine whether the latter,in his concern for here personal
circumstances, could be said to have given her tacit permission to
remain off work beyond the December 1st deadline.
An examination of the evidence before this Board reveals that in
no sense could it be said that Mrs. Tam had a legitimate or valid
excuse for remaining in Hong Kong beyond December 1st. Although both she
and her husband testified that her purpose in leaving for Hong Kong in
11.
October was two fold, it is clear that the motivating and primary reason
was to act on her husband's behalf in settling the affairs of his late
mother's estate. From the evidence it is plain that it was only when
she received the phone call in early October from her brother-in-law
in Hong Kong that the trip to Hong Kong became imperative. At no time
was it suggested, and indeed Mr. Tam testified ?o the contrary, that
the condition of her back and shoulder alone would have induced her to
take time off work and return'~to Hong Kong to received medical care
there. Indeed that conclusion accords with the understanding of both
Mr. Guinn and Mr. Cassidy as to the reason why her presence in Hong
Kong was required. That is and whateverelse she may have told Mrs.
Wall, the evidence clearly reveals that both Mr. Guinn and Mr. Cassidy
were under the definite impression that the only purpose of her trip
to Hong Kong was, pursuant to the power of attorney vested in her, to
act on her husband's behalf in the settling of her mother-in-law's
estate. Indeed both Mr. Guinn and Mr. Cassidy apparently assumed
(mis~takenly as the evidence ultimately revealed) that Mr. Tam's mother
had not yet died ancl it was that fact which added the element of
urgency to her visit. .Indeed it was only that "urgent family matter"
which was referred to on her application as teing the reason why she
requested, her leave. In fact, it is clear from the evidence that
it was in anticipation that Mrs. Tam might not, for reasons beyond her
control, be able to finally settle these family matters within the
time stipulated in her leave that Mr. Cassidy made the contingency
arrangements described above.
However from Mrs. Tam's own testimony it is beyond dispute
12.
that the settling of her mother-in-law's estate had nothing to do
with Mrs. Tam's remaining in Hong Kong until late in December. To
the contrary, as described above, Mr. Tam himself had arrived in Hong
Kong a full week prior to the December 1st deadline and from that point
on he was eminently capable of taking charge of the settling of his
late mother's estate. Very simply from the time Mr. Tam arrived in
Hong Kong on or about November 24, there was no further need for her
to remain to attend to and settle the family's business. Given that
she had initially gone to Hong Kong with a power of attorney from her
husband to represent his interests in the settling of the estate,
it necessarily follows that, upon his arrival there was simply no
further need for the power of attorney nor any cause for her not to
return to work.
Indeed Mrs. Tam herself candidly admitted that the reason she
decided to stay over in Hong Kong until December 20, was so that she
could continue'to see the Chinese doctor and receive his herbal
medicines. However and as described above at no time were either
Mr. Guinn or Mr. Cassidy ever made aware that her medical condition
was even a cantributory, let alone motivating cause for her going to
Hong Kong. From the evidence described, even if they had been aware
of her medical condition. it is clear that at no time was that factor
considered by them in granting her leave until December 1, 1975. Indeed
even if her medical condition had figured in their deliberations as to
how much leave they should grant Mrs. Tam, we do not believe her medical
condition was's0 grave as to prevent her from returning to work on the
date stipulated in her application. At no time did lcrs:Tam testify that
I
13.
her medical condition had so incapacitated her that she was unable
to return to her job. Indeed her attendance at work on the day after
her return to Canada would suggest just the opposite. To the contrary,
from her own evidence, it was simply her desire to continue with the
medication prescribed by the Chinese doctor that induced her to remain
in Hong Kong beyond the period stipulated in her leave. In our opinion
that reason, standing alone, was not sufficient to justify her extended
absence. Clearly, if there were difficulties in having such medicines
shipped directly to her residence in Canada, Mr. Tam was as capable as
she was to bring them with him when he ultimately left
Hong Kong. Further and given her knowledge of the conditions under
which she secured her leave, at the very least Mrs. Tam should have
communicated directly with Mr. Cassidy to advise him of the precise
reasons for her inability to return. Even if her presence in Hong
Kong was required to secure,these medicines, (which after Nr. Tam's
arrival'we would find difficult to believe) at no time had the employer
ever been advised that this was reason for the delay in her return.
In these circumstances we are constrained to conclude that her continued
absence from work beyond December 1st was both unreasonable and un-
justified,
~For much the same reason we can not subscribe to the assertion
that Mr. Cassidy had tacitly consented to Mrs. Tam's remaining away
from work beyond December 1st.. In the first place, from the con-
versation itself it is not self evident that Mr. Cassidy tacitly gave
her permission to remain away beyond the December 1st deadline. That
is, if as the grievor stated Mr. Cassidy said,to her that "if she had
to resign I'll get you hired again" one could cogently argue that Mrs.
14.
Tam should have known that her failure to return to work on December 1
would result in her termination. Second~ly, it must also be recalled
that even if one could construe Mr. Cassidy's remarks as tacit per-
mission to remain.in Hong Kong beyond December 1st. that permission
was given on the assumption that Mrs. Tam might not be able to finally
settle the family affairs within the prescribed period. However
and as Mrs. Tam herself concedes the reason that she did not-return
on December 1st simply had nothing to do with the settling of the
estate. There is simply nothing in the evidence which could remotely
support the conclusion that Mr. Cassidy had consented to Mrs. Tam's
absence for any reason other than that associated with the estate.
In the result, and once Mrs. Tam's services were no longer required in
that matter any tacit approval that Mr. Cassidy might have qiven would
have been spent. We would add that we do not believe that anything
Mr. Cassidy may have said to Mr. Tam when the latter called in mid
November to advise of his wife's inability to return can be characterized
as expressing approval of or giving permission for her extended absence.
In the first place, from his evidence, it is apparent that at no time
did Mr. Tam fully explain the existing circumstances in Hong Kong. That
is at no time did he explain that her presence would no longer be
required to settle the family estate or that she was not SO incapacitated
that she was physically unable to return. Further in light of Mr.
Cassidy's conversation with Mrs. Tam prior to her departure, in no sense
could one construe the remarks "we'll see what we can do" as tacit oer-
mission for Mrs. Tam to remain in Hong Kong. Although Mr. Cassidy
might well have advised Mr. Tam that Mrs. Tam should make every endeavour
to return to work or contact him personally, in the context of an un-
expected phone call and particularly given the circumstances surrounding
the granting of the leave, Mrs. Tam herself should have been well aware
I
15.
of her obligation in that regard.
In the result we must conclude that Mrs. Tam's absence from
December l-22, was though perhaps understandable, both unreasonable
and unjustified. In the circumstances the conclusion must follow that
Mrs. Tam was indeed absent without official 1eaVe from December, 1 untjl
December 22, 1975. Having satisfied the only condition stipulated in
s.20, it must also follow that the employer was entitled to invoke the
provisions of that section and declare that Mrs. Tam had abandoned her
position. In the face of such a finding it necessarily folloivs that
it can not be said that Mrs. Tam was unjustly dismissed and this
grievance must necessarily be denied. Once having determined that the
conditions on which.the deputy minister's declaration must be premised
have been satisfied, this Board has no jurisdiction to interfere with
that declsJ@n. Having satisfied ourselves that Mrs. Tam was not im-
properly dismissed, this Board's function ceases. We simply possess
no power or authority to review or interfere with the merits of a
decision which has validly been taken under s.20 of the Act. In the
result Mrs. Tam's grievance must be denied..
However and'by way of postscript, this entire Board feels
constrained to add certain comments with respect to certain circum-
stances which succeeded the events giving rise to this grievance. We
have already alluded to procedure adopted by the Ministry in challenging
the arbitrability of this grievance that we deplore. Equally we were
appalled at the behaviour of the supervisors in the North York 9ffice
in their treatment of Mrs. Tam on her return to work ~. More specifically
16.
it struck this Board that the Ministry's officials were callous., insensitive,
uncivil and impolite to Mrs. Tam when, upon her return to work, they refused
to even look at the medical documents she nroduced to document her visits to
various doctors in Hong Kong and ordered her to immediately leave the office.
Even more SO is this true where, as here Mrs. Tam was completely unaware, on
her return to work, that the Ministry had declared her to have abandoned her
position. No matter how long she had over extended her leave of absence and
particularly given her unblemished employment record surely common decency
and good manners, quite apart from considerations of proper personnel ad-
ministration should have induced them to examine those documents, hear her
explanation for her absence and explain the Ministry's policy. Although
s.20 of The Public Service Act may be as familiar as the ten commandments
to certain management officials we doubt that many, if any, of the employees
in Mrs. Tam's position are familiar with theirs terms. Very simply given
her record with this employer Mrs. Tam deserved better and more considerate
treatment than the perfunctory and heavy handed reception she received.
In addition we feel obliged to make reference to the conduct
particularly of Mr. Richards, and to a lesser extent Mr. Stanley, in
their treatment of each other prior to coming before this Board; From
their conduct it would appear that they too are unaware qr insensitive
to what others might consider common sense, cocmron courtesy and sound
labour relations procedures. It was,,from the facts of the case, known
tom both Mr. Richards and Mr. Stanley that the medical evidence tendered
by Mrs. Tam on her return to work might well be introduced into evidence
in this case. Mr. Richards manifestly would be aware of this because
he sought to introduce these documents into evidence at the hearing.
Mr. Stanley too was obviously aware of this because tucked in his
. .
17.
brief case was a copy of s.52 of The Evidence Act on which he relied
to object to their admissibility. The result of course was that this
Board was subjected to formal argument as to the admissibility of this
evidence. Surely. and particularly given the origin and language of
these documents, Mr. Richards should have been aware that it was not
only proper but expected that he would advise Mr. Stanley of his in-
tention to introduce these documents into evidence and allow the latter
some time to consider their propriety. Equally one would have expected,
in a relationship which was mature and positive,that Mr. Stanley,
realizing such documents might well be tendered would ask Mr. Richards
for the opportunity to view them prior to the,hearing. Although
manifestly the onus and initiative was on Mr. Richards to tender these
documents to Mr. Stanley prior to the hearing it seems obvious tom this
Board that Mr. Stanley need not have taken his example from Mr. Richards
and could himself have asked for and raised any concerns he anticipated
he might have with that evidenc,e prior to the hearing in this matter.
This Board has had occasion in the past to admonish ot~hers who
have appeared before it-as to the need for a full and frank discussion
between the parties before coming before this Board. (Re Harris 7/75)
Very~simply and regardless of the views one may hold as to the nature
of the collective barqaining relationship this Board simply can not and
will not continue to tolerate the cat and muse or Perry Masort games
played out by the parties prior to coming before this Board. We have
been charged by our legislation to resolve all grievances brought before
this Board. We simply can not fulfill that mandate if.we are required
to expend endless energy and time in resolving matters which could
easily be settled~ prior to the hearing by the parties themselves. Ouite
i . .
apart from taxing the time and patience of the members of this Board,
and apart from the obvious effect it must have on the parties' own
relationship such gamesmanship at the very least interferes with and
indeed precludes this Board from hearing those other matters which
are ready to come before it. Although some may think otherwise,the
adversary nature of the proceedings before this board does not imply
that grievances are to be won or lost by surprise and chance. Rather
it is the purpose of this Board to resolve all of the grievances
coming before.it in as expeditious a manner as possible after all of
the relevant evidence admissible in law is properly put before it.
It is only when ~the parties have sufficient confidence in the system
and in each other to allow a full and frank interchange before the
hearing that this Board will be able to fully discharge its mandate.
In short it will only be when the parties themselves adhere to the
principles described above that this Board will be able to fully serve
their interests.
Finally we must add and without in any sense condoning Mrs.
Tam's activities that we perceive her experience as a senseless and
unnecessary tragedy.On all of the evidence untilthis incident she had per-
formed in a highly proficient manner. Accordi~ng to Mr. Cassidy exceotfor this
incident, she was a valuable and dedicated public servant. To
allow her talents to be lost to this Ministry and to the public service
for a~single irresponsible act strikes this Board as a senseless and
negative result. Accordingly and recognizing that we have no
power to interfere with a decision validly taken by the deputy -
minister under s.20 of The Public Service Act, we would urge the
19.
employer to seriously consider rehiring Mrs. Tam for the first
available vacancy for which she is qualified.
I
Dated at Toronto this 3lst day of March 1976.
D. M. Beatty
Chairman
E. 3. Orsini
Member
P. A. Sigurdson
Member