HomeMy WebLinkAbout2015-3464.Nash.18-09-25 Decision
Crown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB# 2015-3464
UNION# 2016-5112-0024
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Nash) Union
- and -
The Crown in Right of Ontario
(The Ministry of Community Safety and Correctional Services) Employer
BEFORE D.J.D. Leighton Arbitrator
FOR THE UNION Gregg Gray
Ontario Public Service Employees Union
Grievance Officer
FOR THE EMPLOYER James Cheng / Laura McDonald
Treasury Board Secretariat
Employee Relations Advisors
HEARING
June 21, 2018
- 2 -
Interim Decision
[1] This grievance proceeded to hearing on January 18, 2018, using the expedited
process that the parties agreed to on April 8, 2011 in a letter of understanding
regarding improving and maintaining labour relations between the parties and the
“Local Mediation-Arbitration Protocol,” which was included in Appendix COR26 of
the collective agreement between the parties, dated November 18, 2016.
[2] Normally under this process the parties present evidence to support their case
and submissions as to why they should prevail on the day the case is set to be
addressed. If the case is not settled then the arbitrator decides the case, and
issues a decision without reasons. On occasion, the arbitrator may find that the
evidence is not clear and it would not be fair to decide the case as presented.
When this happens, the case is either referred to Joint File Review to be
assigned to a fresh arbitrator to hear the case. Some times when the case
proves to be more complex than anticipated, the parties will agree to a further
day of mediation with the arbitrator who heard the case during the med-arb.
[3] In this case towards the end of the presentation of Ms. Nash’s grievance, the
employer representative informed me that the manager with knowledge of the
case was not available, and they needed to be able to consult with her to
respond to the union’s claims. The union representative took the position that it
was late in the day to claim not to be ready to proceed. The case had been
presented to me with some interruptions over the course of the afternoon.
[4] The protocol requires that the parties be ready to present their cases when they
proceed and an interruption in the process defeats the purpose of dealing with
these cases expeditiously. However, in an attempt to be fair, I decided that the
employer should have an opportunity to consult the manager in question and so
we set a further day to resume the mediation, with the hope of ultimately settling
the case.
[5] Before this hearing could take place, the employer sought production of certain of
the grievor’s medical records from prior to her grievance. The motion was heard
by conference call and was opposed by the union. The union submitted that the
motion was seeking evidence beyond the scope of my decision to allow the
employer to consult the absent manager. And further, this should have been
done well before the January 18, 2018 hearing, not when it was almost over.
[6] Having carefully considered the submissions of the parties, I have decided to
dismiss the employer’s motion. There was never an agreement to hear the case
de novo. The delay was not an opportunity for the employer to marshal another
- 3 -
case. The adjournment was only for the purpose of consulting the manager who
was not present on January 18, 2018.
Dated at Toronto, Ontario this 25th day of September, 2018.
“D.J.D. Leighton”
D.J.D. Leighton, Arbitrator