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HomeMy WebLinkAbout1983-0713.Smith et al.89-05-29EMPLOY~S OELA COURONNE CROWNEMPLO”EES DE L’ONTARIO GRIEVANCE COMMISSION DE RkGLEMENT DES GRIEFS IN TEE HATTER OF AN ARBITRATION Under THE CROWN EBPLOYBES COLLECTIVE BARGAINING ACT Before GRIEVANCE SETTLEUENT BOARD Between: Before: For the Grievor: For the Employer: Hearing: OPSEU (Smith et al) Grievor - and - The Crown in Right of Ontario (Ministry of Health) and (Ministry of Community & Social Services) Employer J. Forbes-Roberts Vice-Chairperson I. Freedman Member G. Peckham Member R.E. Stoykewych Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors L. McIntosh Law Officer Crown Law Office, Civil Ministry of the Attorney General March 10, 1900 INTERIM DECISION -2- The instant case involves several identical classification grievances. FOUr (4) VCf@ filed in 1983 and tvo (21. vere filed in 1985. All the grievers occupied the position of Psychologist I on an underfill basis, and vere classif ied as Psychomotrists II. They seek to be classified as Psychologists I vith the attendant remuneration. Union counsel indicated that he intended to pursue his case on the basis of the usage test as opposed to the class standards test. He intended to put before the Board certain evidence to vhich Employer counsel raised tvo (2) preliminary objections. The Board vas asked to rule on the preliminaries before inquiring into the merits. To understand at least one (1) of the Employer’s objections it is necessary to provide a chronology of events leading up to the hearing in this matter. The initial stage of the chronology is laid out in the parties’ Agreed Statement of Facts appended hereto as “Attachment A”. On September 30,1983 Dr. F. Meek also filed a grievance identical to the instant matters. Folloving discussions betveen the parties it vas agreed that the Meek case vould proceed first, and that the other identical grievances vould be “held back” pending its outcome. It is important to note that vhile there vas an agreement to “hold the others back”, it vas & agreed that Meek vould be a representative case and thus dispositive of all like grievances. Meek vas fought solely on the basis of the class standards test and a panel of this Board dismissed the grievance. The matter vas taken to judicial reviev and in August of 1986 the Union’s application was dismissed. A subsequent application for Leave to Appeal vas dismissed in May of 1987. The Union then referred the instant matters to the Registrar to be scheduled for hearing. Some five (5) years, one hearing, one judicial reviev and one dismissed Leave to Appeal application later the matters came before this panel. As indicated above Union counsel intends to proceed on the basis of the usage test, an issue not pursued in &&i (G.S.B 774/031. The evidence vhich he seeks to introduce and to vhich Employer counsel objects falls into tvo (2) groups. The first group is comprised of three (3) vithout prejudice settlements and one grievance which vas alloved at second stage. All four of the grievances are identical to the ones presently being litigated. The second group is comprised of evidence of three (31 indivi- duals who vere granted the Psychologist I classification despite the ~fact that they lacked full registration vith the O.B.E.P.. All three 0) vere granted this classification at least one year before Dr. Meek filed his grievance. Employer counsel objected to the admissibility of the first group of examples on the basis that they have no probative value. -3- Counsel objected to the admissibility of the second group of examples on the grounds of tlmellness. Wlth respect to the Employer’s objection to the first group Union counsel raised Collective section 18 (2) of the Crown Employees Bargaining Act (“C.E.C.B.A.“). It was argued.that because C.E.C.B.A. give6 an lndlvldual carriage of a classifica- tion grievance, the fact that the Union and the Employer have settled a previous identical case cannot derogate from the individual’s right to use it as evidence in his or her ovn case. In short the provisions of C.E.C.B.A. create a statutory excep- tion to the rule regarding the admissibility of settlements. In response Employer counsel suggested that the Union vas blurring the distinction betveen the right to qr ieve and the right to call evidence. The Employer is objecting to the admissi- bility of the settlements, not the individual’s right to grieve. We agree vlth the Employer’s position. The rules of evidence are not governed by C.E.C.B.A.. The individuals’ right to grieve is; nor is anyone attempting to curtail that- right. The value of settlements in labour relations is unquestionable. But settlements are often a matter of expediency, and vlthout expedience labour relations fall apart. Barring the clearest of indications that the parties intend to be globally bound by the terms of a settlement their prejudicial value so far outveighs any probative value they m have that the rule against their admissibility ought to be followed. re:wti-Packard Electric u (1962) 12 L.A.C 236; re: -s Ltdt (1960) 10 L.A.C. 356; tor Mlncs (1975) 0 L.A.C.(2nd) 225; re: w 76) 13 L.A.C. (2nd) 211. We therefore find that first group of examples are inadmissible. The second group of cases on vhlch the Union seeks to rely a different matter. %-cause these It vas the Employer’s position that examples occurred prior to the filing of the Meek grievance the Unlon.knev or p&& to have knovn of their exls- tence at that time. Yet they vere not used as part of the argument in the w case. Because they vere not raised six (6) years ago vhen CLpek Gas argued the Employer is nov unduly prejudiced in the preparation of the present cases by the passage of time. Necessary vltnesses have either left the Mnlstry’s employ, disappeared, or become infirm of body or memory, and available records do ROb adequately fill the void. It vas argued that to nov admit the evidence vould give the Union a tactical advantage and deny the Employer the opportunity to put its best foot forvard. The Employer seeks to raise an equitable bar to the admissibility of the evidence. Union counsel responded that the mere passage of time.does not oows,tittitedelay such as to raise an equitable bar to the admisslbality of evidence, especially vis a vis individual grievors. He argued that this is particularly important when the - 4 - individual grlevors were in the instant matters. no way responsible for the delay in The &&plover and the !&&II alloved w to proceed first specifically witho& the understanding that it vould be a representative case. In light of this fact the have considered any potential Employer should Union. future tactical advantage for the It does not now lie in the Employer’s mouth because the to argue that Union chose a particular strategy in a non-represen- tative case it should be precluded from select inq a different strategy in a different case at a later date. Finally, Union counsel argued that any prejudice the Employer may suffer is of its ovn making. First, if records are inadequate, the Employer has only itself to blame. Second, on the basis of evidence called by the Employer at this hearing the Union argued that the Employer had failed to exercise diligent efforts to contact potential vltnesses. Vis a vb the second group of examples, ve agree vlth the Union’s position. In classification cases it has alvays been open to the Union to employ the class standards test pi the usage test, or both in the course of proving it65 case. In Meek it chose to restrict itself to the class standards test, and the parties agreed to hold the other like grievances in abeyance until its final determination. That happened to take five (5) years. But the parties had Q& agreed that Meek was a represen- tative case. Therefore just as the Union is not barred from bringing the instant matters forvard for hearing, it does not seem to make sense to suggest that they are somehov barred from choosing to pursue a tactic that vould have been available prior to && going forward. Perhaps more importantly, the individual grlevors indeed vere not responsible for the delay betveen grievance and hearing in their ovn particular cases. Just as there is a strong presump- tion against the admissibility of settlements, there is an equally strong case to be made against refusing to admit evidence on the grounds of lathes vhen the grlevors have been in no vay responsible for any actual or perceived delay. Both have their foundations in the paramount consideration of healthy labour relations, re: mdlev of London (Cgnadal Ltd, (1973) 4 L.A.C. (2nd) 75. Because at the time it agreed to hold the instant matters in abeyance the Employer was aware or ought to have been aware that the Union was free to employ the usage test (and any examples thereof) in furtherance of these cases ( whenever. they might get to hearing), ve find ‘that any prejudice the Employer may now potentially suffer is of f+zjr own making. The probative value therefore exceeds tne prejudice, and ve find that the second group of examples are admissible To. rule otherwise vould allow the Employer to use an equitable doctrine as a sword rather than a shield. For purposes of clarity the second group of examples is - 5 - comprised of Bartashunas, Solomon and Stacey. At the request'of the parties this Board remains seized and vi11 refer the matter to the Registrar for scheduling. Dated at Toronto this 263th day of Hay , 1989. I __-----___-____--__-L_____________ .I. Forbes-Roberts, Vice-Chairperson ' I. Freedman, nember / A ____---________--___-------------- I G. Peckham, Member