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HomeMy WebLinkAbout2007-0356.McIntosh.07-11-21 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB# 2007-0356 UNION# 2007-0584-0001 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (McIntosh) Union - and - The Crown in Right of Ontario (Ontario Clean Water Agency) Employer BEFOREVice-Chair Ken Petryshen FOR THE UNION Jim Paul Grievance Officer Ontario Public Service Employees Union FOR THE EMPLOYER Felix Lau Counsel Ministry of Government Services HEARING October 5, 2007. 2 Decision At a hearing on October 5, 2007, Mr. F. Lau, counsel for the Employer, requested that the hearing be adjourned. Mr. Paul, appearing for the Union, requested that certain conditions attach to the adjournment of this matter. The grievance before me concerns an issue about payment for working on a statutory holiday. The parties discussed the scheduling of the grievance at Joint File Review in May of 2007 and a Notice of Proceeding dated May 16, 2007 indicated that the hearing would be held on October 5, 2007. In requesting the adjournment, Mr. Lau advised that he had a discussion with Mr. Paul on Wednesday, October 3, 2007 about their positions concerning the grievance, and it was because of this discussion that he realized that there were ?some wrinkles? in this case. Because the decision on the grievance could have ?significant repercussions?, Mr. Lau attempted to obtain instructions at the corporate level, but given the time constraints, he was unable to contact anyone to receive instructions.On the eve of the hearing, Mr. Lau contacted Mr. Paul, advised him of his predicament and requested an adjournment. Mr. Paul was not prepared to agree to adjourn the hearing in these circumstances. At the outset of his submissions, Mr. Paul indicated that he assumed that the Employer?s request to adjourn the hearing would be granted, but he maintained that the matter should only be adjourned on conditions. Mr. Paul set out in detail the history of this grievance, including discussions with the Employer representative and discussions with Mr. Lau during the few days 3 prior to the hearing. In my view, it is unnecessary to reproduce Mr. Paul?s version of these events and discussions. Suffice it to say that the Union took the position that it was ready to proceed, that the Employer had ample time to prepare its case, that the Employer was well aware of the Union?s position on the grievance and that the Employer?s request to adjourn this matter on the eve of the hearing amounts to an abuse of process. Mr. Paul suggested that the Employer requested the adjournment simply because it was not prepared to proceed on October 5, 2007. The Union requested that an adjournment of the hearing be granted only on the following conditions: 1. That the issues in dispute not be expanded beyond those that were identified as of October 5, 2007. 2. That the Employer not be permitted to raise any preliminary issues. (I understand that no such issues had been raised previously.) 3. That I declare that the Employer?s conduct in this matter amounts to an abuse of process. It is also my view that it is unnecessary to set out the different perspective that the Employer has about the relevant events and the discussions that took place between Mr. Lau and Mr. Paul. During the submissions, I asked Mr. Lau if the Employer opposed the first two conditions, without admitting the basis for the requested conditions as articulated by the Union. Mr. Lau indicated that the Employer was not opposed to those conditions. After considering the submissions, I advised the parties at the hearing that I would grant the Employer?s adjournment request on condition that no new issues or preliminary issues are raised subsequent to October 5, 2007. I found these conditions appropriate, not because I accepted the Union?s version of events, but because all of the issues and any preliminary matters should have been identified prior to October 5, 2007, the first scheduled day of hearing. I also took into account that the Employer did not oppose these two conditions. I also advised the 4 parties that I was not prepared to declare that the Employer?s request to adjourn the hearing or that its conduct constituted an abuse of process. There was no evidentiary basis for making such a declaration. I also noted that hearing evidence to determine which version of the relevant events was accurate would not be in the best interests of the parties. Each party had requested particulars. I directed that each party provide the requested particulars and I noted that any issue about particulars should be addressed in a conference call well before the next hearing date. I note that Mr. Lau requested that I place on the record that he was ?distressed and deeply offended? by some remarks about him made by Mr. Paul. Other than noting that I thought some of Mr. Paul?s comments were inappropriate, there is no useful purpose in setting out the nature of the comments. I understand that Mr. Lau and Mr. Paul discussed the matter subsequent to the hearing in a positive way and they have put the matter behind them. The hearing of this matter will continue on January 15, 2008. st Dated at Toronto, this 21 day of November 2007. Ken Petryshen ? Vice-Chair