GSB# 2003-0247
UNION# 2003-0701-0002
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Lauzon)
Union
- and -
The Crown in Right of Ontario (Ministry of Health and Long-Term Care)
Employer
BEFORE
Loretta Mikus
Vice-Chair
FOR THE UNION
Mary Mackinnon Barrister and Solicitor
FOR THE EMPLOYER
George Parris Counsel Ministry of Government Services
WRITTEN SUBMISSIONS
December 12, 2005 and January 11, 2006.
Decision
The grievor, Gilles Lauzon, filed a grievance alleging the Employer had failed to accommodate his return to work. An attempt was made to mediate a settlement, which was unsuccessful. This preliminary motion was brought by the Union seeking an order that the Employer proceed first when the hearing resumes.
Ms. MacKinnon, counsel for the Union, took the position that the Employer is in possession of the relevant information pertaining to the reasons it has failed to accommodate the grievor and, in the interests of efficiency and brevity, it ought to proceed first with that evidence.
Mr. Parris, counsel for the Employer, does not take issue with that proposition in general but submitted that, in this case, there are facts in dispute and, before the issue of accommodation can be addressed, these facts must be heard and decided.
Having considered the written submission and the cases relied on by the parties I agree with the Employer’s position. While the arbitral jurisprudence favours an approach that will allow the evidence to be adduced in the most efficient and expedient manner by requiring, in some circumstances, the party with the particular knowledge of the facts to present those facts first, that only results where there is no dispute about the essential elements of the facts giving rise to the grievance. In this case there is an issue about the nature and extent of the disability that is within the knowledge of the grievor. As well, it is the position of the Employer that it had accommodated the grievor, who chose to leave the workplace and there is a dispute between the parties concerning that issue. It is the grievor who has knowledge of the facts leading to that decision that the accommodation was inadequate. It is for the grievor and the Union to provide that information.
It is therefore the order of the Board that the Union proceed first to call evidence on the merits of the grievance.
Dated this 3rd day of February, 2006.