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HomeMy WebLinkAbout2003-1461.Press.04-12-08 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 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 2003-1461 UNION# 2003-0329-0010 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (Press) Grievor - and - The Crown In RIght of Ontano (Mimstry of Health and Long-Term Care) Employer BEFORE Loretta Mikus Vice-Chair FOR THE UNION Ed Holmes Ryder Wnght, Blair & Doyle BarrIsters and SOlICItorS FOR THE EMPLOYER Andrew Baker Counsel Management Board Secretanat HEARING June 1 2004 2 DeCISIon The gnevor KeIth Press, filed a gnevance dated May 16 2003 allegIng a vIOlatIOn of ArtIcle 9 1 and any other relevant artIcles of the collectIve agreement and any legIslatIOn that mIght apply He asked as a remedy that the Board order he be returned to hIS prevIOus ward, If desIred, wIth full compensatIOn, a guarantee of future career opportumtIes, an apology from hIS ImmedIate supervIsor and the removal of that supervIsor from hIS posItIOn of Nurse Manager for Incompetence The gnevance anses from allegatIOns of clIent abuse at the Oak Ridge DIVISIOn of the Mental Health Care PenetangUIshene The gnevor IS a regIstered nurse at the facIlIty and was the subJ ect of a formal InVestIgatIOn Into these allegatIOns of abuse He claims the InVestIgatIOn was Improper on several grounds and takes the posItIOn that the enSUIng psychologIcal, socIal and emotIOnal trauma he suffered as a result of that Improper InVestIgatIOn not only vIOlated the collectIve agreement but also gave nse to claims for damages for the tortuous conduct of the Employer Dunng the first day of heanng, the Employer raised some prelImInary matters related to process and asked the Board for an order respectIng those Issues FIrst, the Employer asked the Board to order these proceedIngs be bIfurcated Into a heanng on the lIabIlIty If any and then on the remedy that follows If the Umon succeeds on the ments WhIle It IS common to leave the Issue of damages untIl after a findIng on the ments, It IS usually done on agreement of the partIes In thIS case Mr Baker counsel for the Employer took the posItIOn that medIcal eVIdence relatIng to the consequences of a breach of the agreement could be aVOIded If the Employer succeeds on the ments, thereby saVIng the Board and the partIes the expense of the heanngs and the cost of the expert wItness' testImony Mr Baker also submItted that the Umon's claim for damages under the tort headIng of neglIgence was newly raised and the Employer was not prepared to respond to It at that tIme Mr Holmes, counsel for the Umon, took the posItIOn that It would be dIsadvantaged If It were ordered to lImIt ItS eVIdence as suggested by the Employer The Issue before thIS Board concerns a breach of the Health and Safety provIsIOns of the collectIve agreement. In order to establIsh 3 the effect on the gnevor's health of that breach, the Umon wIll be reqUIred to call expert medIcal eVIdence The charges agaInst the gnevor that led to thIS InVestIgatIOn are very senous and the Umon should have the broadest leeway to present ItS case The ments of the case are entwIned wIth the remedy to such an extent that separatIng them wIll be dIfficult and not necessanly an efficIent use of the partIes' tIme I am not prepared to make the order requested by the Employer WhIle I agree that some aspects of remedy are more efficIently dealt wIth at the conclusIOn of the heanng, IncludIng mItIgatIOn and losses, It IS up to counsel to determIne how to present ItS case If the Umon feels It must present the medIcal eVIdence to prove ItS case, that IS ItS decIsIOn to make We are at the commencement of a possIble 8 day case and there wIll be sufficIent tIme for the Employer to consIder ItS posItIOn WIth respect to the remedIes ultImately sought by the Umon. Another Issue raised by Mr Baker concerned the callIng of eVIdence The Umon has apparently made arrangements wIth the gnevor's specIalIst to attend and gIve eVIdence on the next day of heanng. The greIvor has begun hIS examInatIOn-In-chIef and we wIll have to Interrupt hIS eVIdence to hear the physIcIan. Mr Baker asked the Board to Instruct the Umon to delay hIS testImony because not all of the exchange of partIculars has been completed, whIch wIll place the Employer at a dIsadvantage AgaIn, I am not persuaded I should make such an order It IS up to the partIes to determIne what case It has to meet and how to present that case If the Umon has made arrangements for the specIalIst to cancel hIS appoIntments for the day and travel from BrockvIlle to attend the heanng, there IS no compellIng reason for me to Interfere wIth ItS decIsIOn. The last tIme we met In June there was agreement to exchange InformatIOn pnor to the next day ofheanng In November Apparently the Umon provIded some partIculars In October and the Employer responded Just pnor to the heanng wIth a request for specIfic InformatIOn from the gnevor's treatIng physIcIans There has been sufficIent tIme for the partIes to have fulfilled theIr oblIgatIOns and have provIded each other wIth the partIculars It Intends to rely on dunng ItS case and of theIr respectIve posItIOns If addItIOnal InformatIOn should come to lIght dunng the heanng, the Board wIll hear argument about an adJ ournment. 4 DECISION The heanng wIll reconvene on December lSth wIth the testImony of Dr Hector In the meantIme the Umon wIll ensure that the Employer has receIved the clImcal notes of Dr Hector so that It wIll be In a posItIOn the cross-examIne hIm. The Employer's concerns about cross-examInIng the gnevor wIthout thIS InformatIOn wIll have been addressed by the tIme he resumes hIS eVIdence Dated at Toronto thIS 8th day of December 2004 Loretta Mikus, Vice-Chair