GSB# 2004-4000, 2005-0251
UNION# 2005-0302-0003, 2005-0302-0002
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Edwards)
Union
- and -
The Crown in Right of Ontario (Ministry of Health and Long-Term Care)
Employer
BEFORE
Randi H. Abramsky
Vice-Chair
FOR THE UNION
David Wright Ryder Wright Blair & Holmes LLP Barristers and Solicitors
FOR THE EMPLOYER
Fateh Salim Counsel Management Board Secretariat
HEARING
September 19, 2005.
Decision
At the outset of the hearing, a preliminary issue arose regarding the order of proceeding. The Union asserts that the Employer must go first since this case involves a disciplinary matter. The Employer asserts that it is the Union which must go first, since no discipline is involved. Instead, it asserts that the grievor has failed to comply with an earlier decision of the Grievance Settlement Board, which determined that a conflict of interest exists. In its submission, the Union must proceed first to establish why that earlier Award is no longer binding.
I conclude that the Employer must proceed first.
This case may be characterized either as a disciplinary matter or as an alleged breach by the grievor of the earlier GSB decision. Under either characterization, the onus rests with the Employer, and the Employer must proceed first.
In so ruling, I note that Vice-Chair Finley, in her earlier Award – OPSEU (Edwards) and Ministry of Health, GSB No.2216/94 (January 9, 1996), at p. 24 – determined that the issue of the grievor’s transfer as a result of a conflict of interest determination by the Deputy Minister was “disciplinary” in the sense that the issue was one of “‘insubordination’ should the Grievor fail to comply with the order of the Deputy Minister set out in her letter of November 18, 1994.” As the Board held: “It is not the application of the conflict-of-interest regulations and procedures which is disciplinary in this case…; it is the insubordination which may ensue from the failure to notify the Deputy Minister or to follow the orders set out by the Deputy Minister which may attract discipline.” The same situation applies here.
I further note that the “Conflict of Interest and Post-Service Directives” state that where there is a failure to comply with the conflict of interest standards, the employee will be “disciplined as appropriate.”
Alternatively, this case may be viewed as an alleged breach by the grievor of the earlier GSB decision. The January 4, 2005 letter to the grievor states that “in light of this breach, the Ministry has no option but to enforce the decision of the Deputy Minister and the Grievance Settlement Board that you must remove yourself from the conflict of interest situation.” Clearly, it is the party alleging the breach which bears the onus on that issue and must proceed first.
Conclusion:
For the reasons set forth above, I conclude that the Employer must proceed first in this matter.
Issued at Toronto this 20th day of September, 2005.