IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Union Grievance)
Grievor
- and -
The Crown in Right of Ontario (Ministry of Correctional Services)
Employer
BEFORE
Ken Petryshen
Vice-Chair
FOR THE UNION
Nelson Roland Ryder Wright Blair & Doyle Barristers and Solicitors
FOR THE EMPLOYER
Suneel Bahal and Len Hatzis Counsel Management Board Secretariat
TELEPHONIC CONFERENCE
April 2, 2003.
DECISION
On April 2, 2003, I held a conference call with counsel, during which counsel for the Union requested that the April 3, 2003 hearing date in this matter be adjourned because Mr. D. Pickett, one of his advisors, was ill and unable to attend. Counsel also advised that the same request would be made for subsequent hearing dates if Mr. Pickett were unable to attend due to illness. The context within which counsel for the Union made this request is briefly set out below.
A significant number of employees at the Toronto West Detention Centre (“Toronto West”) did not work their shifts on November 6 and 7, 2001, which led the Employer to file an unlawful strike application with the Ontario Labour Relations Board and led the Union to file an application under section 50 of the Occupational Health and Safety Act. In a Memorandum of Settlement dated December 17, 2001, (“the Memorandum”) the parties agreed to withdraw their respective applications and also agreed that “Vice-Chair Ken Petryshen will be seized with determining the employees’ entitlement to pay, if any, for the shifts in question on November 6 and 7, 2001 ...” Paragraph 5 of the Memorandum provides that “The parties are committed to an expeditious resolution of the issue of the employees’ entitlement to pay.”
The parties agreed to 5 hearing dates to take place in September 2002, commencing on September 16, 2002. The parties agreed to adjourn two of these dates and on the remaining days they addressed a number of case management issues and unsuccessfully attempted to settle the matter. The Union was represented at the September 2002 hearing by counsel who had 4 advisors from the local union in attendance, namely Mr. D. Pickett, Mr. M. Vieselmeyer, Mr. J. Boychuck and Mr. V. Lauria. The parties agreed that the Union would not have more than four advisors attend a hearing during the course of this proceeding and that the Union would not call more than 4 witnesses a day. The hearing was scheduled to resume on April 2, 3, 8, 9, 10, 2003, and on additional days in May and June 2003.
When it was not possible to have a conference call on April 1, 2003, to deal with the Union’s adjournment request, the parties agreed to cancel the April 2 hearing and to hold the conference call on that day. During the conference call, counsel for the Union indicated that Mr. Pickett, his primary advisor, had been hospitalized recently and that he would be unable to attend on April 3, 2003. Counsel also stated that he did not know whether Mr. Pickett would be available for April 8, 9 and 10, 2003. Counsel forcefully submitted that the hearing should not proceed in circumstances where his main advisor cannot attend due to illness.
Counsel for the Employer referred to the nature of the issue in this matter and the fact that the parties had agreed to an expeditious resolution. Counsel submitted that the absence of Mr. Pickett due to illness was not a reason to adjourn the hearing.
At the conclusion of the conference call I informed counsel that, in my view, the absence of Mr. Pickett due to illness, by itself, was not a sufficient basis for adjourning the hearing. The Union has three other advisors who are able to instruct counsel. However, given that Mr. Pickett had just recently become ill and is still in the hospital, and given the likely effect of his sudden absence on the ability of the Union to deal with this matter, I determined that in these particular circumstances it was appropriate to adjourn the hearing scheduled for April 3, 2003. At this time it is unclear whether Mr. Pickett will be able to attend the hearing dates scheduled for next week. Hopefully he will have recovered by then. But if not, the hearing will proceed on April 8, 2003, to address the relatively narrow issue of whether employees who did not work their shifts on November 6 and 7, 2001, are entitled to payment for those shifts.
Dated at Toronto, this 4th day of April, 2003.