IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Scott)

Union

and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Loretta Mikus

Vice-Chair

FOR THE UNION

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Ferina Murji Counsel Management Board Secretariat

HEARING

November 19, 2004.

Decision

The grievor, Suzanne Scott, is a Correctional Officer at the Ottawa Carleton Detention Centre. On February 13, 2003 she filed a grievance alleging that the Employer had violated Article 3, No Discrimination/Employment Equity and Article 9, Health and Safety and Video Display Terminals, by condoning direct employee and management harassment. She asked for an order directing the Employer to eliminate all systemic and direct discrimination and harassment, that an independent consultant monitor and verify the Employer’s compliance with that order, that the elimination of harassment and discrimination apply across the entire Ministry, that she be paid $100,000.00 for pain and suffering and that she be compensated for all losses suffered as a result of the Employer’s conduct.

It was the Union’s position that the situation worsened after she filed the grievance and, on March 25, 2003, she went off on extended sick leave, which has continued to the present. She is now ready to return to work and has filed another grievance dated June 21, 2004, claiming that the Employer has failed to accommodate her return to work. She is seeking full redress and damages.

This interim award deals with the Union’s motion to consolidate these two grievances. Mr. Leeb, counsel for the Union referred to the GSB’s practice note of 1986 which reads as follows and which, it was said, continues to be the appropriate test:

WHERE ORDER MAY BE MADE

Where two or more proceedings are pending before the Grievance Settlement Board and it appears to the Grievance Settlement Board that,

(a) they have a question of law and fact in common;

(b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences: or

( c ) for any other reason an order ought to be made under this rule, the Grievance Settlement Board may order that,

(1) the proceedings be consolidated or heard at the same time or one immediately after the other, or

(2) any of the proceedings be

(i ) stayed until a determination of any other of them,

(ii) abridge the time for placing a grievance on the hearing list.

The Union took the position that these two grievances arise from same series of transactions and have overlapping and common facts that dictate they should be heard together. The only difference between the two is the timing: they will require the same evidence and witnesses.

Ms. Murji, counsel for the Employer, took the position that the first grievance deals with the issues of harassment and discrimination. There is no mention of accommodation. The Employer conceded that it has an obligation to accommodate her return to work but that accommodation arises from her medical condition, not from her allegations about harassment and discrimination. The two are separate and distinct issues and consolidating them will only delay the case on the merits of the earlier grievance.

I am of the view that these two grievances should be consolidated. They will have common questions of law and fact arising from the first grievance. The evidence necessary for the Union to prove its case will, according to Mr. Leeb, involve medical evidence about the effect the harassment and discrimination has had on her health. That evidence, the Union asserted, is central to its claims on the merits and the remedy. It makes no sense to require the Union to present that same evidence on the issue of accommodation in both hearings. It will prolong a decision on the merits and require additional time and resources that might be avoided by the consolidation of these two grievances.

The Union’s motion succeeds. The two grievances are to be consolidated and will be continued on the days previously scheduled.

Dated this 30^th^ day of December, 2004.

Ontario Public Service Employees Union (Scott) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2004 CanLII 55383

Case Summary

IN THE MATTER OF AN ARBITRATION

BETWEEN

Union