GSB# 1630/01

UNION# 02U014

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

HEARING

April 9, 2003.

DECISION

The general issue before me is whether a significant number of employees at the Toronto West Detention Centre (“Toronto West”) are entitled to be paid for their shift commencing on November 6, 2001. When employees did not report for work on that day the Employer filed an unlawful strike application with the Ontario Labour Relations Board. The Union filed 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 Petryshen will be seized with determining the employees’ entitlement to pay, if any, for the shifts in question on November 6 and 7, 2001 …” The parties also agreed in the Memorandum that the parties “are committed to an expeditious resolution of the issue of the employees’ entitlement to pay.”

On April 2, 2003, during a conference call, counsel for the Union requested that the hearing scheduled for the following day be adjourned because Mr. D. Pickett, one of his advisors, was ill and unable to attend. Counsel indicated that this request would be made for subsequent hearing dates if Mr. Pickett remained unable to attend due to illness. Mr. Pickett had been hospitalized recently and it was unclear when he would be discharged. When they had completed their submissions, I advised counsel that the hearing scheduled for the following day would be adjourned due to the relatively recent and unexpected hospitalization of Mr. Pickett. I also advised counsel that the absence of Mr. Pickett due to illness, by itself, was not a sufficient basis in the circumstances for adjourning future hearing dates, particularly since the Union had three other Local Union Executive board members available to instruct counsel. I indicated to counsel that the hearing would proceed on April 8, 2003, even if Mr. Pickett were still unable to attend. This ruling is reflected in a written decision dated April 3, 2003.

When the parties attended at the GSB on April 8, 2003, Mr. Pickett was not present. He was still in hospital and unavailable to the Union. For reasons not relevant to the issue now before me, the matter was adjourned for the remainder of that day. When the hearing resumed on April 9, 2003, counsel for the Union made an opening statement, followed by an opening statement from counsel for the Employer. After hearing the Employer’s perspective on Mr. Pickett’s involvement in the relevant events, counsel for the Union again requested that the matter be adjourned until Mr. Pickett was able to attend or was available to the Union. Given what counsel perceived as the prominent role of Mr. Pickett in the relevant events, he argued that it was necessary to at least have Mr. Pickett available for consultation in order for the Union to properly conduct its case. Counsel for the Employer took the position that Mr. Pickett’s absence alone was not a basis for adjourning the hearing. On April 10, 2003, at the commencement of the hearing, I ruled orally, with brief reasons, that the Union’s request for an adjournment was denied.

Having regard to counsels’ submissions and the nature of this case as disclosed in the opening statements, I was not convinced that this matter could not proceed at all in the absence of Mr. Pickett, given the presence of the three other Local Union executive board members as advisors. By agreement of the parties the Union will call its evidence first. The testimony of its witnesses is intended to provide a context for the events of November 6, 2001, and will address what occurred on that day. The parties anticipate that where entitlement to pay for an employee is in issue, each such employee, approximately ninety in number, will have the opportunity to testify in order to explain why he or she decided not to work that day. Mr. Pickett, the President of the Local Union at the time, was involved in some of the relevant events, and this involvement was commented on during counsel for the Employer’s opening statement. Counsel for the Employer did suggest that Mr. Pickett might not have acted appropriately in some instances.

It cannot be said that the Union has a shortage of advisors for this case. As I indicated in the decision dated April 3, 2003, the absence of one advisor due to illness, when others are available, is not a sufficient ground for granting an adjournment. In my view, the Union would be prejudiced by Mr. Picket’s absence only when there is evidence during the course of the hearing about Mr. Pickett’s conduct which is disputed. This would likely arise when the Employer calls its evidence, but conceivably might also arise during the course of the Union’s evidence. If such a situation arises during the hearing and the Union is still unable to have access to Mr. Pickett, the Union can renew its adjournment request at that time. My sense from the opening statements is that such a development is unlikely to occur until the Employer calls its evidence. Since it was my view that the Union could call most, if not all of its evidence, without being prejudiced by Mr. Pickett’s absence, I denied the Union’s blanket request for an adjournment.

Dated at Toronto, this 13th day of May, 2003.