Loading...
HomeMy WebLinkAbout2001-1573.Mondesir et al.05-09-07 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1 Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2001-1573 2001-1578 UNION# 2001-0582-0054 2001-0582-0055 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (MondesIr et al ) Union - and - The Crown m RIght of Ontano (Mimstry of Commumty Safety and CorrectIOnal ServIces) Employer BEFORE Damel Hams Vice-Chair FOR THE UNION Ed Holmes Ryder Wnght Blair & Holmes LLP Bamsters and SOlICItorS and Gavm Leeb Bamster and SOlICItor FOR THE EMPLOYER LIsa Compagnone Counsel Management Board Secretanat HEARING June 9 2005 2 DeCISIon ThIS IS another Intenm applIcatIOn brought by the employer In the matter of the dIscharge gnevances of Tim CollIn and Robert MondesIr The gnevors were both found gUIlty on January 27 2004 of beIng "partIes" to an assault caUSIng bodIly harm agaInst an Inmate at the Toronto East DetentIOn Centre On Apnl 29 2004 the gnevors receIved condItIOnal dIscharges for "assault caUSIng bodIly harm," as It IS put on theIr ProbatIOn Orders That IS, the findIngs of gUIlt are In regard to the charge of assault caUSIng bodIly harm. That day two other co-accused had convIctIOns regIstered agaInst them In the course of the reasons for sentence, the actIOns of one of the co-accused were descnbed as partIcularly VICIOUS That IS, the gnevors were found gUIlty of an assault that was VICIOUS and caused bodIly harm, on the basIs that they were partIes to the assault. The employer prevIOusly brought an applIcatIOn to have the gnevances summanly dIsmIssed. That request was demed [see MinistlY of Community Safety and Correctional Services (Sammy et al) (2004), GSB #2001-0224 et al (Hams, December 17 2004)] The employer subsequently provIded the umon wIth a proposed set of agreed facts, said to flow from the tnal Judge's findIngs In her dISposItIOn of the cnmInal charges Those facts were set out by reference to vanous numbered paragraphs In the tnal Judge's reasons The umon agreed that some of those paragraphs bInd thIS board but dId not agree to the full lIst provIded by the employer As an aSIde, I note that In the course of heanng the partIes' submIssIOns I dId not call on the umon for a response regardIng paragraph 51 because It was apparent that It was not a findIng of fact. 3 The employer now requests an "order" acknowledgIng that thIS Board IS bound by all of the factual findIngs made by the tnal Judge and the findIngs of gUIlt made agaInst these gnevors It also requests an order that the umon dIsclose the matenalIt Intends to rely upon wIth respect to mItIgatIOn of the penalty It charactenzes thIS request as "IdentIfYIng the Issues In dIspute" It was also submItted that the employer needs to know what It needs to prove and what It does not need to prove On behalf ofMr CollIn, It was submItted that thIS applIcatIOn IS an attempt by the employer to get a legal OpInIOn from the Board as to what eVIdence It should call In any event, the legal effect of City of Toronto and CUPE, Local 79 [2003] 3 S C.R. 77 (S C C ) IS to prevent the admIssIOn of eVIdence that would serve to Impugn the findIngs of gUIlt of the tnal Judge who presIded over the cnmInal charges On behalf ofMr MondesIr It was also submItted that to adopt the employer's approach would reqUIre a lIne-by-lIne parSIng of the reasons of the tnal Judge whIch would be wasteful and an abuse of process It was submItted that the onus IS on the employer to prove that the dIscharge was JUst. No oblIgatIOn anses on the part of the gnevors untIl the employer has put In ItS case Reasons for Decision Reduced to first pnncIples, the resolutIOn of the employer's prelImInary request IS reasonably straightforward. It seeks to draw from the cnmInal findIngs vanous facts whIch It says bInd thIS board. It has forwarded a proposed lIst of such facts to umon counsel In some Instances, the umon agrees that those are facts that need not be proven. As to the remaInIng proposed facts, the umon does not agree that those facts need not be proven. 4 It falls to the employer to decIde how to prove those facts If It IS of the VIew that, as a matter of law It need do no more than assert them as the tnal Judge's findIngs then It need call no eVIdence However I am not prepared to tell the employer at the outset of ItS case how It should proceed. ThIS IS an adversanal proceedIng. The umon has agreed to some facts and not to others It IS for the employer to decIde how It wIll establIsh any other matenal facts It belIeves It reqUIres In order to dIscharge ItS onus to prove that these two gnevors were Justly dIscharged from theIr posItIOns as unclassIfied correctIOnal officers In the context of theIr havIng been found gUIlty of a cnmInal assault that caused bodIly harm to an Inmate The employer's applIcatIOn IS dIsmIssed. Dated at Toronto thIS 7th day of September 2005 ~1