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Home My WebLink About1981-0472.Alten et al.81-12-021 . -;~ ‘, ,c SETTLEMENT Before: For the Grievor: 472/81 IN THE MATTER OF AN ARBITRATION UNDER THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BEFORE THE GRIEVANCE SETTLEMENT BOARD OPSEU (Mr. C. Alten et al) Grievors, and The Crown in Right of Ontario Ministry of Government Services Employer. R. L. Verity, Q.C. - Vice-Chairman J. McManus :?enber H. J. Laing Member J. A. Ryder, O.C., Counsel Cameron, Brewin & Scott For the Employer: E. Kulman Senior Perscnnel Administratcr Ministry of Government Services Hearina: Octcber SDth, !gBl November 20th. i981 I I , I I I I I I I I I I I I I I I I I AWARD All four Grievors have filed Grievances alleging improper classification pursuant to article 5.1Jof the relevant Collective Agreement. Three of the Grievors are currently classi?ied as Godfrey is present1 All four Grievance forms seek as a settlement the remedy of re-classification to a "2reparator 1" classification. Each Grievor is employed by the Ministry of Government Services at the Ontario Science Centre. On October 3Oti, 1981, the first Searing date before the Joard, the Union attempted to alter grounds of all four Grievances zbbandoning the remedy of re-classification under Article 5.1.1, and substituting a request for certain interpretations and remedies oursuant to Article 6 of the Collective Agreement. In a letter dated October 26th, 1981,, to the Snployer, Counsel for the Union cave notice to the Employer 'hat tSe Onion wocld be recgesting ceriein rmedies for t-he 3oard to consider. That letter contained oo reference to abandoning the origi.?a- 1 settlement requested of "le-classification". I I I 1’ I I I, I I I I I I I I I I I I I - 2.- Kiss Xulman's letter to Mr. Ryder dated October 28th, 1981 further illustrates that point. Miss Xulman is a senior personnel administrator with the Ministry and is not a lawyer. On the other hand Mr. Xyder is a Queen's Counsel with considerable ability and experience to his credit. Accordingly, after having heard part of the evidence of one of the Grievors, a Richard Quigley, the Board adjourned the Hearing at Miss Xulman's request in order to'?e?znit her a reasonable opportunity to properly prepare the Ministry's case to adequately * address the Union,'s ,altered grounds of the four Grievances. In a letter to each of the Board members dated November l;th, 1981, the Employer's spokesman formally objected to tSe Union's "OOdi* =ication of the Grievance complaint". The essence of that letter was to the effect that all four Grievances we:e clearly "classification Grievances" under Article 5.1.1 of the larties' Collective Agreement, and that *he Union's case should be restricted to thcie grounds. !Ir. 3yder raplied in a detailed letter dated xcvember 16tS, 1981, addressed to tSe Soard Vice-CSainnan, the essence of which -gas that xiss ZXulman *was oarred from raising an objecticn at &is-point i;l tile as she had failed to do so on the first Bearing date, and further that she had uzcerlaken to Trcceed on t.Se rreri:s of 5e altered Grie7axes on \lcve.zAer 2355, 1981. I I I I I I I I I I I I I I I I I I -3- On the resumption of the Hearing on November 2Oth, representations were made by each of the Parties concerning the merits of the Employer's objection to the alteration of the Grievance grounds, and the effect'of the agreement between the Parties and the Board that had precipitated the adjournment on October 30th. No evidence was introduced on that date. Briefly, the Employer's position was that it was improper for the Union to alter the substance of the four Grievances at the Hearing. F!iss Xulman argued that ?&-. Byder's letter of October 26th qave her no notification that the tinion was abandoning the . original Grievance. She alleged that the first indication she had that the‘union was abandoning the original Grievance under article 5.1.1 was at the iiearinq, and that she was taken completely by , surprise. \ The Employer argued that to accept the Union's altered destroy. the various In rep>?, Z-Z. Ryder argued tSat tSe 3card should not accept Xiss Xulman's representations tSat she was unaware of the substance of tSe Grievance being altered as Ser letter of October 28th wculd hdicate o-Lye--disc. 2. .?-7Cer argued t-Sat :<iss :iulxan Sad Se: c~~or~~.i~~~ I I I I I I I I I I I I I I I I .I I I -4- to object atthe Hearing on October 20th and failed to do so. He argued forcefully that an agreement had been made at the Hearing binding all Parties, including the Board, the effect of which was to proceed on November 20th on the merits of the "altered" Grievances. In 'a determination of theissue, the 3oard is of the opinion that Niss Xulman was in fact taken by surprise in spite of the letters prior to the first Hearing date. We are of the opinion that Mr. Ryder's letter to Miss Xulman is not sufficiently clear and that Miss Xulman had no way of knowing that the Union was abandoning the original grounds of the Grievance filed under Article 5.1.1 until the first Hearing date. Admittedly, Miss Xulman should have objected to the Union's procedure at that time. Undoubtedly, she would have done so had she not been taken by surprise and had she had greater experience in procedure before the Board. There is ample authority for the proposition that the form of any Grievance should~not be so strictly construed that cases can be won or lost on tSe technicality ~of fem. On the 0tSer hand, there is a difference between a technical enlarqement of form and a real chanqe.in substance -- See Eeffering'and the Crcwn in the ilicht of Cntario, ?".inistry of Cons.umer and Ccrmercial Relaticns, SO4/30 (!?elisle, Vice-Chairman). In the case at hand, the 3oard is of tie . . opinion that it is improper to abandcn Lhe or'iginal qrounds of the Grievances and proceed at tSe Yearias on totally new grounds witSout the ccnsent cf both Pazties. I I I I I I I I I I I I I ~~1 I 5 I T - 5 - The more important issue here is whether there was any such consent between the Parties. What was the effect of the agreement made between the Parties and the Board for the purposes of granting an adjournment at the request of the Employer? Was that agreement solely for the purpose of allowing the Employer to prepare to meet the merits of the Union's altered qrounds? Is the Employer effectively barred from raising an objection at the second Hearing date? 'We are of the opinion that the adjournment was granted and consented to by t??e Parties for.the purposes of allowing the Emp‘loyer a reasonable opportunity to Prepare her case. The 3oard finds that bliss Xulman came to the first Xearinq prepared to argue the merits of classification Grievances under Article 5 of 'be CollectiGe Xgreezent. ?Ir. Ftyder came to that iiearinq prepared to arque a Grievance under Article 6. We have a10 hesitaticn in finding that A%\?Fss Xulman was taken by surprise. An adjournment was qrau ted for the purposes of allowing her a reasonable period of time to examine the 'case that she had to meet. it is obvious that Hiss Kuhan has ~consisteztly take-3 ‘Lae position t:aa t tSis is a classification Grievance. 3y no stretch of the imagin- aticn can it be said that the Imployer accepted tSe amended grounds of the Grievances. To find otherwise WOUX be tctS c-fair and unreascn&jle. I - 6 - )I I I I I I I I I I I I I I ~1 I I Accordingly, the Board is of the opinion that the Employer had the right to bring an objectionas set forth above, and that she is not barred from so doing by the agreement of October 30th, 1981. Therefore, having considered each of the arguments carefully, the Board'accepts the merits of the Employer's objection, We are of the opinion that it is improper to substantially alter the original grounds of the Grievances at the Hearing without the consent of both Parties. We find that in this fact situation there was an absence of any such consent. Accordingly these Grievances shall be dismissed without prejudice to the filing of new Grievances. by any or all of the Grievors pursuant to the Collective Agreement. DATED at Brantford, Ontario, this 2nd day of December, 1981. R.. L. Verity,.Q.C. - Vice-Chairman J. McManus - Member H. Laing Xember