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Home My WebLink About2016-2532.Pozderka.19-09-04 DecisionCrown 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# 2016-2532; 2017-2157; 2017-2354; 2018-1449; 2018-1450; 2018-1638 UNION# 2016-0536-0003; 2017-0536-0004; 2017-0536-0005; 2018-0536-0002; 2018-0536-0003; 2018-0536-0004 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Pozderka) Union - and - The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE Deborah Leighton Arbitrator FOR THE UNION Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Andrew Lynes Treasury Board Secretariat Legal Services Branch Counsel HEARING April 10, 2019 -2- DECISION Introduction [1] There are six grievances before me all relating to discipline, and the discharge of the grievor. After his discharge, the grievor applied for long-term disability (LTD) insurance and received it retroactively, but he is not receiving any coverage for his benefits. The grievor filed a grievance on February 20, 2019 (the benefits grievance), complaining that he was not receiving benefits while collecting LTD. The union seeks an order from the board to consolidate the benefits grievance with the discipline and discharge grievances. The union relies on Rule 3 of the Board’s Rules of Procedure in support of its submission on consolidation and OPSEU (McClelland/Ward) and Ministry of Community Safety and Correctional Services, GSB 2006-2524 et al. (Briggs). [2] Counsel argued that the benefits grievance alleges a pattern of harassment and discrimination, which is a continuation of the pattern alleged in the discipline and discharge grievances and therefore should be consolidated. The union also argued that the benefits grievance be heard first, before the discipline and discharge grievances are heard. The union submits that the benefits grievance is pressing because the grievor requires urgent dental care, which is beyond his means. Thus, counsel urges the board to hear this case first. [3] The union also seeks an order that the discharge grievance proceed first, before the discipline grievances. The grievor is concerned about the length of the hearing, if the discipline grievances proceed before the discharge grievance. -3- [4] The employer opposes both motions. Counsel argued that the benefits grievance alleges a breach that occurred after the employer dismissed the grievor. The decision to deny benefits was a corporate decision and the managers of the MTO, who made the decisions on the grievor’s discipline and discharge had nothing to do with the benefits decision. Thus, there are no common issues of fact or law. The benefits grievance raises a discreet issue and should not be consolidated, or if consolidated, it should not be heard first. [5] Regarding the motion to hear the discharge grievance before the discipline grievances, counsel argued that the employer must be permitted to lead its case in discipline and discharge as it sees fit. Since the decision to discharge the grievor relied on the progressive discipline issued to him, it would be prejudicial to the employer’s case to be ordered to proceed with it before the discipline grievances. Counsel cited UAW and Massey-Ferguson Ltd. (1969) 20 L.A.C. 178 (Weatherill) in support of his submission. Analysis [6] The first issue before me is whether to consolidate the benefits grievance with the discipline and discharge grievances. The Board has the discretion under Rule 3 of the Rules of Procedure to consolidate cases. Rule 3 provides as follows: where two or more proceedings are pending before the GSB and it appears to the GSB that, a. They have a question of law or fact in common; b. The relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; c. For any other reason an order ought to be made under this rule, the GSB, on such terms as it considers advisable, may abridge the time for placing a grievance on the hearing list, and may order that: -4- d. The proceedings be consolidated, or heard at the same time or one immediately after the other; and or e. Any of the proceedings be stayed until after the determination of any other of them. [7] There does not appear to be a question of law or fact in common with the benefits grievance, and the discipline and discharge grievances before me. The relief sought arises out of different occurrences. A separate corporate entity denied the benefits, not the managers that decided on the discipline and discharge of the grievor. The benefits grievance raises a discreet issue, as to whether the grievor is entitled to receive health benefits while he is receiving LTD. All of this leads me to conclude that the benefits grievance should not be consolidated with those already before me. [8] As the Board found in McClelland, supra, citing, CAW-Canada and Dresser Canada Inc. [1987] OLRB Rep October 1234, consolidation means that two or more cases proceed as one: … consolidation will only be appropriate in circumstances where there is an identity of parties and issues in two or more proceedings. The term has come to be used somewhat more loosely so that “consolidation” may be appropriate where the parties and issues are substantially the same. Technically, it is more appropriate, in such circumstances, that the matters be “heard together” rather than consolidated”. When matters are heard together, they retain their individual identities but the evidence and representations of the parties with respect to all matters in issue in all the proceedings are heard at one time by one trier of fact and law. [9] I agree with and adopt this reasoning. It would not be appropriate for the discipline, discharge, and benefits grievances to be consolidated and proceed as one. As indicated earlier in this decision, the key issues in these cases are significantly different. -5- [10] However, given the allegations of discrimination and harassment in the discipline and discharge grievances and ongoing harassment and discrimination in the benefits grievance, I am of the view that the benefits grievance should be “heard together” with the other grievances before me. The benefits grievance will retain its individual identity, but still be heard by one trier of fact and law. [11] The next issue is whether the benefits grievance should go first. Rule 3 also gives me the discretion to proscribe the order in which I hear grievances. I recognize that the grievor’s pressing need for dental work and lack of funds was the main reason for the union’s motion for an order to put the benefits grievance first. And while I am sympathetic to the reason for the motion, the board must balance the rights of both parties to a fair hearing, keeping in mind also that the hearing should be conducted efficiently. [12] The union alleges, inter alia, ongoing, or continuing discrimination and harassment in the benefits grievance. I will have to hear evidence of the alleged pattern of discrimination and harassment in the discipline and discharge grievances, if the union is to prove the ongoing pattern in the denial of benefits. And this evidence is best tendered after the employer has had an opportunity to prove its case for just cause for the discipline and discharge. Thus, it is practical and more efficient to hear the benefits grievance after the others. [13] The union also seeks an order that the discharge grievance proceed before the discipline grievances. The union’s chief reason for this is the concern about the length of the hearing. The employer argues that it must lead evidence on the discipline grievances first, because the decision to discharge the grievor was -6- partly based on this discipline. It would be prejudicial to the employer’s case to proceed with the discharge first. [14] The Board must adhere to the principles of natural justice in making decisions about how a case proceeds. An essential element of natural justice is the right to be heard. Each party must have an opportunity to prove its case as it sees fit within reasonable limits. The employer has the legal onus to prove just cause in the discipline and discharge of the grievor and must be allowed an opportunity to prove just cause as it sees fit. [15] I am persuaded that it would be a breach of natural justice to order the employer to proceed first with the discharge grievance. I agree with employer counsel that such an order would be potentially prejudicial to the employer’s case, especially given position that the decision to terminate the grievor’s employment was based on the discipline that preceded it. Consequently, I have decided to deny the union’s second motion. [16] In summary, for the reasons above, I grant the first motion in part: the benefits grievance shall be heard together with, but after the discipline and discharge grievances; and I deny the second motion to hear the discharge grievance before the discipline grievances. Dated at Toronto, Ontario this 4th day of September, 2019. “Deborah Leighton” ______________________ Deborah Leighton, Arbitrator