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HomeMy WebLinkAbout2005-3698.Samsone.09-07-29 Decision Commission de Commission de Crown Employeess Grievance Grievance règlement des griefs règlement des griefs Settlement Board Settlement Board des employés de la des employés de la Couronne Couronne Suite 600 Suite 600 Bureau 600 Bureau 600 180 Dundas St. West 180 Dundas St. West 180, rue Dundas Ouest 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Tél. : (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Fax (416) 326-1396 Téléc. : (416) 326-1396 Téléc. : (416) 326-1396 GSB#2005-3698, 2005-3699 GSB#2005-3698, 2005-3699 UNION#2006-0582-0001, 2006-0582-0002 UNION#2006-0582-0001, 2006-0582-0002 IN THE MATTER OF AN ARBITRATION IN THE MATTER OF AN ARBITRATION UUnnddeerr THE CROWN EMPLOYEES COLLECTHE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT TIVE BARGAINING ACT BBeeffoorree THE GRIEVANCE SETTLEMENT BOARD THE GRIEVANCE SETTLEMENT BOARD BETWEENBETWEEN Ontario Public Service Employees Union èÏÔÎÏ (Samsone) - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREKen Petryshen Vice-Chair FOR THE UNIONJorge Hurtado Cavalluzzo Hayes Shilton McIntyre & Cornish LLP Counsel FOR THE EMPLOYER Paul Meier Ministry of Government Services Counsel HEARING May 7, July 7 and July 22, 2009. - 2 - DECISION [1]I have two grievances before me signed by Mr. R. Samsone. The last two hearing days in this proceeding were adjourned. This decision will primarily address the circumstances which led to these adjournments. [2] One of the grievances before me is dated February 1, 2005 (?Grievance 1?) and the other is dated February 24, 2006 (?Grievance 2?). In Grievance 1, Mr. Samsone claims that he was threatened by an Operational Manager on January 1, 2005, and that another Operational Manager who was present at the time did not respond appropriately. The relief Mr. Samsone requests in Grievance 1 includes the removal of both Operational Managers from the Ministry and $100,000 in damages. Mr. Samsone alleges in Grievance 2 that a number of individuals at the Toronto East Detention Centre and other persons in the Ministry contravened the Collective Agreement by failing to conduct an investigation of the incident and to protect his health and safety interests as a result of the threat by the Operational Manager. [3] The Employer raised a number of preliminary issues going to the arbitrability of these grievances. Without detailing the basis for the it?s objections, I simply note that the Employer claims that the grievances were not filed or processed in accordance with the grievance procedure, that they are untimely and that they should be dismissed because of res judicata, estoppel or abuse of process considerations. [4] The first day of hearing before me on these grievances was May 7, 2009. During his opening statement, Employer counsel provided a detailed summary of the Employer's - 3 - preliminary objections and the factual context which formed the basis for the objections. A number of exhibits were entered on consent. After the lunch break, Union counsel made his opening statement relating to the preliminary objections. I then met with counsel to discuss some options for expeditiously addressing the preliminary objections. The hearing day concluded with counsel agreeing to consider process issues and to discuss those issues between themselves prior to the next hearing date of July 7, 2009. [5] Mr. Samsone did not attend the hearing on July 7, 2009. This led counsel for the Union to request an adjournment, which was opposed by the Employer. Union counsel indicated that Mr. Samsone was not receiving any income and that he could not attend the hearing because he was unable to make child care arrangements for his young daughter. Employer counsel noted that this was not the first time that Mr. Samsone had failed to appear at a hearing and he argued that no valid reason had been offered to justify an adjournment in this instance. After discussing some issues with counsel and after considering the Union?s request, I informed the parties that the hearing would be adjourned to the next hearing dates on a pre-emptory basis. I also directed the Union to provide the Employer with full particulars prior to the next hearing date. Counsel agreed to exchange the authorities upon which each intended to rely. [6] Mr. Samsone did appear at the hearing on July 22, 2009. Given the process agreed to by counsel, the Union proceeded to call Mr. Samsone as a witness. Before he could be affirmed, Mr. Samsone quickly indicated that he intended to tape record the proceedings for use in other proceedings he intended to pursue.Counsel for the Employer objected to the tape recording of the proceeding. Mr. Samsone, in a loud voice, then proceeded to direct some - 4 - critical comments at counsel for the Employer. Although I directed Mr. Samsone to discontinue speaking to Employer counsel and advised him that Union counsel was present to speak on his behalf, he would not desist. Mr. Samsone indicated that he did not want the Union or its counsel to represent him in this proceeding and he wanted Mr. Gordon, a Union member, to represent him. Counsel for the Union requested a brief recess, which I granted. While in the Vice-Chair lounge, the Register advised me that the Employer requested security to attend the hearing. When the hearing resumed, counsel for the Union advised me that Mr. Samsone had made threats directed at the Union and the Employer during the brief recess. Union counsel then requested that the hearing be adjourned. Mr. Samsone indicated that he wanted the hearing to continue. Employer counsel agreed that the proceeding had to be adjourned in the circumstances. It was on this basis that I adjourned the hearing. It was evident that it would be impossible to conduct a hearing given Mr. Samsone's conduct. [7] The hearing of these grievances is scheduled to continue on August 21, 2009. th Dated at Toronto this 29 day of July 2009. Ken Petryshen, Vice-Chair