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HomeMy WebLinkAbout2002-2964.McCormick.06-01-03 Decision Crown Employees Commission de Nj 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 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2002-2964 2002-296S 2002-2966 2004-2332,200S-0944 UNION# 2003-0634-0001 2002-0634-000S 2002-0634-0004 2004-0634-0003 200S-0634-0001 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (McCormIck) Union - and - The Crown In RIght of Ontano (Mimstry of TransportatlOn) Employer BEFORE RandI H. Abramsky Vice-Chair FOR THE UNION CarolIne V (Nim) Jones PalIare Roland Rosenberg RothensteIn LLP BarrIsters and SOlICItorS FOR THE EMPLOYER Sunee1 Bahal Counsel Mimstry of Government ServIces HEARING December 12, 200S addltlOnal wntten submlsslOns December 19 & 23 200S 2 DeCISIon The gnevor has filed seven gnevances, at least five of whIch are before the Board. The gnevances span a three-year penod, from 2002 to 200S Three allege harassment and dISCnmInatlOn, IncludIng a pOIsoned work envIronment. One alleges unJust dIscIplIne One gnevance asserts a vlOlatlOn of pnvacy In that the Mimstry neglIgently released pnvate medIcal InfOrmatlOn to a thIrd party One alleges a vlOlatlOn of health and safety and repnsal, and one alleges that the gnevor was forced to use her vacatlOn credIts Exactly whIch five of these seven gnevances are before the Board IS unclear Due a number of cIrcumstances, there IS no Vice-Chair currently assIgned to hear the ments of thIS matter and, as a result, arbltratlOn dates have not yet been determIned. The Umon has now moved for Intenm relIef In thIS proceedIng, and the partIes agreed that I would be seIzed for thIS motlOn only In ItS motlOn for Intenm relIef, the Umon IS askIng that the GSB order the Employer to place the gnevor on a paid leave of absence - on specIal or compasslOnate leave - untIl these gnevances are fully and finally resolved. A November 21 200S letter from the Employer tnggered the Umon's motlOn for Intenm relIef, although the Umon had been consldenng thIS actlOn beforehand. In that letter the Mimstry advIsed the gnevor that she had been off work SInce June 13 200S to date wIthout "medIcal documentatlOn from your medIcal practltlOner sufficIent for the mlmstry to determIne your fitness to perform your regular Job dutIes or whether or not there IS any workplace accommodatlOn avaIlable to qUIcken your return to the workplace" As a result, the Mimstry consIdered her absence to be "an unauthonzed leave of absence wIthout pay effectIve June IS 200S " Dunng that penod, however the gnevor had receIved short-term sIckness (STSP) 3 benefits The gnevor was then notIfied "that you are reqUIred to return to work on December 5 2005 " She was also advIsed that pursuant to SectlOn 20 of the Public Service Act that "a publIc servant who IS absent form duty wIthout officIal leave for a penod of two weeks may be declared by hIS or her deputy mlmster to have abandoned hIS or her posltlOn " The gnevor's STSP benefits were exhausted In early December and In late November she applIed for long-term Income protectlOn (L TIP) At the heanng on December 12, 2005 the Mimstry rescInded the November 21 2005 letter and wIthdrew ItS requests for Independent medIcal eXamInatlOns It had made In September and October 2005 Instead, It advIsed the gnevor that "[e]ffectlve December 7 2005 you wIll be placed In a leave of absence wIthout pay pendIng a declslOn of your applIcatlOn for Long Term Income ProtectlOn (LTIP) " Based on the reSClSSlOn of the November 21 2005 letter the Employer obJected to the Board's proceedIng wIth the motlOn for Intenm relIef SInce there IS no longer any threat to the gnevor's contInued employment. It further asserts that It has receIved no partIculars from the Umon on a number of the gnevances, so It IS unable to address whether or not the Umon has an "arguable case on the ments" It also asserts that the requested Intenm relIef - a specIal or compasslOnate leave- has not been requested prevlOusly by the gnevor It has therefore not been consIdered or demed by the Mimstry and there IS no gnevance concernIng that Issue On thIS basIs, the Mimstry asserts that there can be no basIs that the Board may order the relIef requested. It therefore contends that the Board lacks JunsdlctlOn, at thIS tIme, to hear the Umon's motlOn for Intenm relIef, and asserts that the Umon' s motlOn IS an abuse of process The Umon argues that the Board's JunsdlctlOn rests wIth the gnevances properly before the Board, the partIes' collectIve agreement and SectlOn 48(12)(i) of the Labour Relations Act, 4 whIch IS Incorporated Into the Crown Employees Collective Bargaining Act All of the Employer's arguments, the Umon contends, go to the ments of the motlOn, but not the JunsdlctlOn of the Board to hear thIS matter The Umon argues that the Mimstry' s reSClSSlOn of ItS November 21 2005 letter does not render ItS motlOn for Intenm relIef moot. It asserts that the letter does not prevent the Mimstry from changIng ItS mInd, agaIn, and requmng the gnevor to return to work. It further argues that the reSClSSlOn of the November 21 2005 letter does not alter the JunsdlctlOn of the Board to hear thIS motlOn. In terms of partIculars, the Umon submIts that partIculars have been exchanged between the partIes on a number of the gnevances, but not all of them It agrees that no partIculars have been provIded In relatlOn to the 2004 harassment gnevances, but contends that the Mimstry IS fully aware of the gnevor's allegatlOns through pnor medlatlOn seSSlOns before the GSB wIth another Vice-Chair It contends that after SIX medlatlOn seSSlOns, the Mimstry cannot now assert that It does not know the case It must meet. The Umon asserts that the Mimstry's contentlOn that It does not have sufficIent InfOrmatlOn about the gnevances Ignores the real hIStOry of the gnevances It also submIts that It would be Improper for the Umon to be ordered to provIde partIculars when the Mimstry faIled to partIcIpate In the gnevance process, as the Umon alleges occurred here The Umon further argues that In lIght of the very low threshold reqUIred to establIsh an arguable case on the ments, the Mimstry has ample InfOrmatlOn to rebut, should It choose to do so the broad posltlOn of the Umon that It has an arguable case on the ments In the Umon's submlsslOn, the threshold IS extremely low requmng lIttle more than a stated best case 5 The Umon questlOns the reqUIrement to provIde detaIled partIculars In a motlOn for Intenm relIef It argues that In lIght of the low standard reqUIred for an "arguable case on the ments" detaIled partIculars are not reqUIred to make that determInatlOn, and that to reqUIre them would defeat the expedltlOus, and usually urgent, nature of requests for Intenm relIef Should thIS motlOn be allowed to proceed, another Issue arose regardIng whether or not the Umon may rely on a sworn affidavIt from the gnevor wIthout callIng her as a wItness The Umon argued that sworn affidavIts have been found by the Board to be sufficIent In motlOns for Intenm relIef, and Indeed, the Board has ruled on such motlOns where no eVIdence IS presented. WhIle recogmZIng that the Board has, at tImes, allowed sworn statements In motlOns for Intenm relIef, the Employer argues that It has done so only when there were eXIgent cIrcumstances that precluded the submlsslOn of better eVIdence In thIS case, the Employer does obJect to the Umon's relYIng on the affidavIt. It argues that there IS no medIcal eVIdence to suggest that the gnevor IS unable to testIfy and It asserts that relYIng on the affidavIt, and precludIng the Employer from beIng able to cross-examIne the gnevor would be a demal of natural JustIce and procedural fairness Decision 1 I conclude that I do have JunsdlctlOn to hear the Umon's motlOn for Intenm relIef The Board's JunsdlctlOn IS based on the gnevances before It and SectlOn 48(12)(i) of the Labour Relations Act That IS the source of the Board's JunsdlctlOn. In thIS case, there are five gnevances before the Board and the Umon has moved for Intenm relIef, pursuant to SectlOn 48(12)(i) As a result, thIS Board has JunsdlctlOn to hear that motlOn. All of 6 the Employer's arguments go to the ments of whether or not the motlOn should be granted. They do not go to the Board's JunsdlctlOn. 2 In regard to partIculars, I conclude that under the Board's Junsprudence the partIes must exchange partIculars In relatlOn to the motlOn for Intenm relIef, before thIS matter may be heard. OPSEU (Union Grievance) and MinistlY of Public Safety and Security (2003) GSB No 2113/02 (Dlssanayake) In that case, the Board ordered the Umon to provIde the partIculars It relIed on to establIsh an arguable case on the ments In support of ItS applIcatlOn for Intenm relIef, IncludIng when, where and by whom the alleged vlOlatlOn was commItted. It also reqUIred the Umon to provIde partIculars as to the CIrcumstances It Intended to rely on to establIsh the adverse Impact It Said wIll result, If the Intenm relIef sought IS not granted. The Employer was also ordered to provIde the umon wIth partIculars of the facts It Intends to rely on In response to the allegatlOns In the Umon's partIculars and the CIrcumstances It Intended to rely upon to establIsh the adverse Impact It says wIll result, If the Intenm relIef sought by the umon IS granted. 3 In OPSEU (Gareau) and Ministry of Community Safety and Correctional Services (2005), GSB No 2004-0901 (Abramsky), I followed that declslOn, although I concluded, on the facts, that the Umon had presented sufficIent partIculars 4 Under the pnnclple of Blake et al. and Amalgamated Transit Union and Toronto Area Transit Operating Authority (1988 GSB No 1276/87 (Shlme) I am bound to follow the declslOn In OPSEU (Union Grievance) and Ministry of Public Safety and Security supra I would note, however that I agree wIth the Umon that there are some practIcal dIfficultIes wIth requmng detaIled partIculars In a motlOn for Intenm relIef, partIcularly when It Involves a matter of some urgency The provlslOn of detailed partIculars takes tIme to prepare and respond to InevItably causIng a delay In heanng the motlOn. It may also lead to dIsputes about whether or not the order for partIculars has been complIed 7 wIth. On the other hand, the provlslOn of partIculars ensures that the Issues In the Intenm motlOn may be fully and fairly lItIgated. 5 In thIS case, there has been no exchange of partIculars In connectlOn wIth a number of the gnevances The Umon asserts that the Employer has learned about the gnevances through the pnor medlatlOn seSSlOns before the Board. Although one would expect that InfOrmatlOn would be exchanged dunng the medlatlOn process - partIcularly SIX sesslOns - I sImply have no factual basIs to make that determInatlOn. I have no knowledge of when these seSSlOns occurred, whether they predate any of the gnevances, or what was dIscussed. There are many tImes, In medlatlOn, when the focus IS stnctly on resolutlOn, not the detaIls of the gnevances Further I am very reluctant to conclude that dlscusslOns dunng medlatlOn, or the gnevance procedure, are a SubstItute for partIculars 6 Consequently based on OPSEU (Union Grievance) supra, the Mimstry IS entItled to know the case It has to meet In regard to these gnevances, and be able to challenge whether the Umon has an arguable case on the ments Further neIther sIde knows, at thIS pOInt, the CIrcumstances that the other sIde wIll rely on to establIsh adverse Impact. Based on OPSEU (Union Grievance) supra, these partIculars are reqUIred In a motlOn for Intenm relIef 7 AccordIngly I conclude that the Umon must provIde partIculars regardIng the gnevances for whIch no partIculars have been provIded as well as the adverse CIrcumstances It submIts wIll result If the Board does not grant the Intenm relIef requested. OPSEU (Union Grievance) supra, case The Employer IS then to respond. 8 The Umon IS ordered to provIde partIculars to counsel for the Employer by January 6 2006 wIth the Employer to respond by January 10 2006 If these dates are unworkable, because of the Chnstmas/New Year's holIday and the consequence delay In ISSUIng thIS 8 declslOn, the partIes are to advIse me and I wIll address the Issue through a conference call arranged by the GSB 9 I make no comment on the standard suggested by the Umon that the test for an "arguable case" IS "extremely low requmng lIttle more than a stated best case" That IS certaInly the ImplIcatlOn of my declslOn In OPSEU (Clarke) and MinistlY of Attorney General (2005), GSB No 2004-3263 (Abramsky) Yet that concluslOn may need to be revIsIted because It may be InCOnsIstent WIth earlIer Board cases, such as OPSEU (Moon) and Ministry of Education (2003) GSB No 2003-2128 (Mikus) and even OPSEU (Union Grievance) and Management Board Secretariat (1997), GSB No 1196/97 (Dlssanayake) whIch went beyond a "stated best case" InqUIry lOIn terms of whether the Umon may rely on the affidavIt of the gnevor at the motlOn for Intenm relIef, wIthout callIng the gnevor to testIfy I conclude that It may not do so In OPSEU (Nield) and MinistlY of Labour (1996), GSB No 1471/96 (Roberts) the Board relIed on the unsworn affidavIt of the gnevor for a lImIted penod, because of "the CIrcumstances were so urgent as to make vIrtually ImpossIble the submlsslOn of better eVIdence" (DeclslOn at p 6) The Umon's request for Intenm relIef was made on the busIness day before the heanng. The Board decIded that "[i]t would not have been possIble to call Mr Nield and, perhaps, hIS partner to gIve cross-examIned eVIdence " (Dec p 6- 7) The second declslOn In OPSEU (Nield) supra, decIded by Vice-Chair McKechme, relIed upon the sworn affidavIts of Mr Nield as "better" eVIdence to contInue the Intenm relIef In that case, however there was no obJ ectlOn to relYIng on such eVIdence 11 In thIS case, there IS an obJectlOn to proceedIng by way of affidavIt. It seems to me that affidavIt eVIdence should only be relIed upon If better eVIdence IS unavaIlable, or If the partIes' agree to proceed on that basIs The nght of cross-eXamInatlOn IS basIc to natural 9 JustIce and procedural fairness In thIS case, there IS no medIcal eVIdence whIch states that the gnevor IS unable to testIfy and there has been no JustlficatlOn presented for allowIng her to submIt eVIdence through affidavIt, and not be subJect to cross- eXamInatlOn. AccordIngly when the heanng resumes on the Umon's motlOn for Intenm relIef, the Umon wIll not be allowed to rely solely on the gnevor's affidavIt. Conclusions 1 The Board has JunsdlctlOn to hear the Umon's motlOn for Intenm relIef See paragraph 1 above 2 The partIes, In lIght of OPSEU (Union Grievance) and Ministry of Public Safety and Security supra, must exchange partIculars concermng the motlOn for Intenm relIef, before thIS heanng may proceed. See paragraphs 2 to 7 above 3 At the heanng on the motlOn for Intenm relIef, the Umon may not rely exclusIvely on the gnevor's affidavIt, wIthout callIng the gnevor to testIfy See paragraphs 8 and 9 above Issued at Toronto thIS 3rd day of January 2006 hruxs