HomeMy WebLinkAbout2009-3223.Gill.12-05-29 Decision
Crown Employees
rieva
nce Settlement
oard
1Z8
l. (416) 326-1388
x (416) 326-1396
t des griefs
es employés de la
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l. : (416) 326-1388
léc. : (416) 326-1396
UNION#
2010-0112-0009, 2010-0112-0010, 2010-0112-0012,
2010-0112-0015, 2010-0112-0016
IN THE MATTER ARBITRATION
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
ETWEEN
G
B
Suite 600
180 Dundas St. West
Toronto, Ontario M5G
Te
Commission de
règlemen
d
Couronne
Bureau 600
180, rue Dundas Oues
Toronto (Ontario) M5G 1
Té
Té
Fa
GSB#2009-3223, 2010-0613,
2010-1484, 2010-1485, 2010-1486, 2010-1833, 2010-1834
2010-0614, 2010-0615, 2010-0616, 2010-0617, 2010-0618,
2010-0112-0001, 2010-0112-0005, 2010-0112-0006, 2010-0112-0007, 2010-0112-0008,
2010-0112-0013, 2010-0112-0014,
OF AN
Under
B
Ontario Public Service Employees Union
Union
(Ministry of Children and Youth Services) Employer
(Gill)
- and -
The Crown in Right of Ontario
BEFORE Daniel Harris Vice-Chair
FOR THE UNION
lmes LLP
FOR THE EMPLOYER
John Brewin
Ryder Wright Blair & Ho
Barristers and Solicitors
Services
ractice Group
HEARING
Caroline Cohen
Ministry of Government
Labour P
Counsel
May 10, May 23, 2012.
- 2 -
Decision
[1] There are twelve grievances before me filed by the union on behalf of the grievor,
Mr. Ajit Gill. They flow from the grievor being progressively disciplined and
ultimately discharged from his employment. The employer has closed its case and
the union has introduced a motion to non-suit the discharge grievance.
[2] The grievor’s discipline relates to his failure to adhere to his work schedule. He has a
long history of medical issues that resulted in him being on an accommodated
schedule. The employer concluded that the grievor was capable of working the
schedule, but he was choosing not to adhere to it. Progressive discipline resulted,
leading to his discharge. As set out above, the union seeks to non-suit the discharge
grievance. It concedes that there is sufficient evidence on the other grievances to
meet the non-suit test.
[3] The standard to be applied in determining a non-suit motion is set out in Re Allin
GSB 2008-1407 (Dissanayake) at paragraph 10, which reads in part as follows:
. . . Thus the instant motion must be upheld if the union has failed to adduce
evidence sufficient to support its claim. In assessing sufficiency, the Board must
determine whether the union has proven its case on the balance of probabilities, if
its witnesses are believed and the benefit of any inferences to be drawn are ruled
in the union’s favour.
[4] Vice-Chair Dissanayake reached that summary after reviewing the Board’s decisions
in Re Whan GSB 2003-3446 (Dissanayake) and Re Gareh GSB 1998-1665 (Brown).
There are other observations from the cases that are helpful. These include that the
test is whether some evidence exists to support the claim that requires an answer or
- 3 -
explanation from the other side, viva voce evidence as well as documentary evidence
must be considered and where a non-suit motion is granted a written decision with
reasons will follow. However, where it is dismissed, no reasons will be given.
[5] Having regard to all of the evidence given to date, and the submissions of the parties,
I am satisfied that the union’s non-suit motion must fail. The employer’s evidence is
sufficient to prove its case on a balance of probabilities, if its witnesses are believed
and the benefit of any inferences to be drawn are ruled in the employer’s favour.
[6] I am also of the view that in the specific circumstances of these grievances, it would
be inappropriate to grant the motion with respect to the discharge grievance while all
of the underlying discipline remains.
Dated at Toronto this 29th day of May 2012.
Daniel Harris, Vice-Chair