GSB #0844/99
OPSEU#99B779
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Nathan)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of the Attorney General)
Employer
BEFORE Ian A. Hunter Vice Chair
FOR THE Don Martin
GRIEVOR Grievance Officer
Ontario Public Service Employees Union
FOR THE Roslyn Baichoo, Counsel
EMPLOYER Len Hatzis, Counsel
Legal Services Branch
Management Board Secretariat
HEARING January 22, 2001
AWARD
On April 5, 2000 three (3) grievances that were filed by Mr. Dexter Nathan came on for hearing before me.
After hearing opening statements from counsel for the Employer, Ms. Baichoo, and counsel for the Union, Mr. Martin; and having been advised by Ms. Livia Sessions, the incumbent, who was present, but she did not wish to make an opening statement nor to retain independent counsel, ten (10) exhibits were filed with me on consent.
On a motion by Ms. Baichoo, I ruled that the first grievance (Exhibit 1A) was dismissed; I did so on the Employer’s undertaking to provide the relief requested in that grievance, namely that the letters of which the Grievor complains are not, and never have been, part of his personnel file.
The second grievance (Exhibit 1B) I held to be moot.
With respect to the third grievance (Exhibit 1C) which challenges the results of a job competition, there was a private discussion between counsel. Following that discussion, Mr. Martin requested an adjournment. I granted that request on his undertaking that he would meet with Mr. Justice Farley to review the content of a reference letter (Exhibit 10) that Mr. Justice Farley had provided for the Grievor. If Mr. Justice Farley confirmed the essentially unfavourable nature of that reference (Exhibit 10), Mr. Martin indicated that the grievance should be dismissed.
At the hearing on January 19, 2001 Mr. Martin confirmed that a meeting was held on April 17, 2000; present at that meeting were Don Martin, Roslyn Baichoo and Steven Patterson, a senior solicitor in the Ministry of the Attorney General. The meeting lasted for approximately half an hour. Mr. Justice Farley confirmed that Exhibit 10 was an accurate representation of what he had said with respect to the Grievor’s qualifications, and he further confirmed that any viva voce evidence he might give would simply reiterate what is contained in Exhibit 10.
On April 18, 2000 Mr. Martin met with the Grievor, Mr. Nathan, and conveyed this information to him. Mr. Martin requested the Grievor to withdraw the Grievance (Exhibit 1C). The Grievor refused to do so.
At the hearing on January 19, 2001, on the basis of this information, Mr. Hatzis, counsel for the Employer, brought a motion to dismiss the grievance (Exhibit 1C) based on the undertakings given by Mr. Martin on April 5, 2000. Mr. Hatzis submitted that the Union’s request for adjournment was granted on the express undertaking that, unless Mr. Justice Farley varied his reference, the grievance should be dismissed.
On January 19, 2001 responding to this motion Union counsel, Mr. Martin, said: “The understanding between us was that unless Mr. Justice Farley repudiated the contents of Exhibit 10, then the grievance would go no further. I cannot deny that this was the understanding of counsel.”
On the basis of the undertaking given between counsel on April 5, 2000 and confirmed before me on January 19, 2001, I dismissed the grievance of Dexter Nathan dated June 2, 1999 (Exhibit 1C).
Accordingly, my disposition of the three (3) grievances before me is as follows:
Grievance #99B538, dated March 25, 1999 (Exhibit 1A), is dismissed.
Grievance #99B780, dated May 7, 1999 (Exhibit 1B), is hereby declared to be moot.
Grievance #99B779, dated June 2, 1999 (Exhibit 1C), is hereby dismissed.
Dated at the City of London this 25th day of January 2001.