GSB#2007-0666
UNION#2007-0546-0014
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (O’Connor)
Union
- and -
The Crown in Right of Ontario (Ministry of Finance)
Employer
BEFORE
Michael Lynk
Vice-Chair
FOR THE UNION
Ed Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors
FOR THE EMPLOYER
Simon Heath Counsel Ministry of Government and Consumer Services
HEARING
August 16, 2007, December 5, 2007, December 17, 2007.
Decision
I Introduction
Paul O’Connor was employed as a collections officer with the Ministry of Finance until his written resignation from his employment on 17 April 2007. His employment with the Ministry had commenced in December 2000. This was the third occasion over the previous two years that Mr. O’Connor had resigned from his employment with the Ontario public service. On the first two occasions (in November 2005 and November 2006), he subsequently rescinded his decision in writing within the two week time-limit established by Section 19 of the Public Service Act, R.S.O. 1990, Chapter P.47, as amended. On this third occasion, however, Mr. O’Connor did not rescind his resignation in writing within the statutory time-limit. However, OPSEU filed a grievance on his behalf on 15 May 2007, where he and his union have sought to undo the effect of the April resignation. The grievance stated:
The union and the grievor claim that the employer has discharged the grievor without just cause. The grievor did not intend to resign and in fact, as the employer is aware, the grievor was not competent to intend to resign.
The Union reserves the right to rely upon any other applicable article in the Collective Agreement.
The union and the grievor seek reinstatement with no loss of seniority or compensation and benefits.
Following two days of mediation in May and August 2007, where no settlement was reached, three hearing dates for arbitration were set for December 2007. The first arbitration date in December was adjourned on the parties’ consent after the grievor did not appear at the hearing. At the second arbitration date, the grievor was again absent, and the Union decided to present its case based on the documentary evidence that had already been entered through agreement. Following the conclusion of the Union’s case, the Ministry introduced a motion to non-suit the grievance, and the parties argued their respective positions.
This award deals with the employer’s non-suit motion, which contends that the evidence led by the Union has failed to establish a prima facie case that the Ministry’s acceptance of Mr. O’Connor’s April 2007 resignation was in any way invalid.
II Award
The legal principles that govern the application of a motion for a non-suit have been set out in a number of rulings at the Grievance Settlement Board and in the general arbitral common law. Vice-Chair Nimal Dissanayake has aptly captured these principles in Ontario (Ministry of Transportation) and OPSEU (Whan et al) (GSB # 2003-3446):
The Board will not put the moving party to an election of whether or not to call its own evidence as a matter of course. The appropriateness of putting the moving party to such an election will be determined based upon the considerations of expedition and fairness in the particular circumstances of each case.
In a non-suit motion, the standard of proof expected from a responding party is that of a prima facie case, which is significantly lower than the standard of proof on a balance of probabilities.
In determining whether a prima facie case has been made out, the test is whether some evidence exists to support the claim, which requires an answer or explanation from the other side.
In applying the standard of a prima facie case, any conflicts in or doubts about the facts must be determined in favour of the party responding to the motion.
In assessing the existence of a prima facie case, viva voce evidence as well as all documentary evidence before the Board must be considered.
In examining the evidence before it, the Board will not assess the quality, reliability or the credibility of the evidence.
Where a non-suit motion is granted, a written decision with reasons will follow. However, where a motion is denied, no reasons, oral or written, will be issued.
These principles have been articulated in a number of recent GSB cases on non-suit motions that the parties submitted to me, and which I reviewed: Ontario (Ministry of Attorney General and Assn. of Law Officers of the Crown (Del Junco) (Re) (2006), 2006 CanLII 93268 (ON LA), 151 L.A.C. (4th) 409 (R. Brown); Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Beltrano et al) (GSB # 2003-3597) (Petryshen); Ontario (Ministry of Municipal Affairs and Housing) and OPSEU (Dhanju) (GSB # 2004-1101) (Dissanayake); Ontario (Ministry of Transportation) and OPSEU (Sager et al) (GSB # 2000-0377) (Mikus); and Ontario (Ministry of the Solicitor General and Correctional Services) and OPSEU (Ross) (Re) (2003), 2003 CanLII 89535 (ON GSB), 120 L.A.C. (4th) 171 (Herlich).
I have also reviewed the caselaw submitted by both counsel on the legal elements of resignation in modern labour arbitration: Toronto District School Board and C.U.P.E., Loc. 4400 (Calhoun) (Re) (2003), 2003 CanLII 89635 (ON LA), 117 L.A.C. (4th) 289 (Shime); Goodyear Canada Inc. and U.S.W.A., Loc. 189 (Tompkins) (Re) (2002), 107 L.A.C. (4th) 289 (Goodfellow); British Columbia (Public Service Employee Relations Commission) and B.C.G.E.U. (Philpott) (Re) (1997), 1997 CanLII 25066 (BC LA), 66 L.A.C. (4th) 335 (Sigurdson); and Ontario (Ministry of Community & Social Services) and OPSEU (Rao) (GSB #1542/85) (Fisher).
I have considered the documentary evidence submitted by the parties, and the submissions by both counsel in light of all of the foregoing. It is my conclusion that the employer’s non-suit motion must fail. In accordance with the Board’s practice, no reasons for the conclusion shall be set out.
This matter shall continue at dates to be determined by the Board and the parties.
Issued at Toronto this 7th day of February 2008.