GSB#2009-3223, 2010-0613, 2010-0614, 2010-0615, 2010-0616, 2010-0617, 2010-0618, 2010-1484, 2010-1485, 2010-1486, 2010-1833, 2010-1834

UNION#2010-0112-0001, 2010-0112-0005, 2010-0112-0006, 2010-0112-0007, 2010-0112-0008, 2010-0112-0009, 2010-0112-0010, 2010-0112-0012, 2010-0112-0013, 2010-0112-0014, 2010-0112-0015, 2010-0112-0016

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Gill)

Union

• and -

The Crown in Right of Ontario (Ministry of Children and Youth Services)

Employer

BEFORE

Daniel Harris

Vice-Chair

FOR THE UNION

John Brewin Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Caroline Cohen Ministry of Government Services Labour Practice Group Counsel

HEARING

May 10, May 23, 2012.

Decision

1There are twelve grievances before me filed by the union on behalf of the grievor, Mr. Ajit Gill. They flow from the grievor being progressively disciplined and ultimately discharged from his employment. The employer has closed its case and the union has introduced a motion to non-suit the discharge grievance.

2The grievor’s discipline relates to his failure to adhere to his work schedule. He has a long history of medical issues that resulted in him being on an accommodated schedule. The employer concluded that the grievor was capable of working the schedule, but he was choosing not to adhere to it. Progressive discipline resulted, leading to his discharge. As set out above, the union seeks to non-suit the discharge grievance. It concedes that there is sufficient evidence on the other grievances to meet the non-suit test.

3The standard to be applied in determining a non-suit motion is set out in Re Allin GSB 2008-1407 (Dissanayake) at paragraph 10, which reads in part as follows:

. . . Thus the instant motion must be upheld if the union has failed to adduce evidence sufficient to support its claim. In assessing sufficiency, the Board must determine whether the union has proven its case on the balance of probabilities, if its witnesses are believed and the benefit of any inferences to be drawn are ruled in the union’s favour.

4Vice-Chair Dissanayake reached that summary after reviewing the Board’s decisions in Re Whan GSB 2003-3446 (Dissanayake) and Re Gareh GSB 1998-1665 (Brown). There are other observations from the cases that are helpful. These include that the test is whether some evidence exists to support the claim that requires an answer or explanation from the other side, viva voce evidence as well as documentary evidence must be considered and where a non-suit motion is granted a written decision with reasons will follow. However, where it is dismissed, no reasons will be given.

5Having regard to all of the evidence given to date, and the submissions of the parties, I am satisfied that the union’s non-suit motion must fail. The employer’s evidence is sufficient to prove its case on a balance of probabilities, if its witnesses are believed and the benefit of any inferences to be drawn are ruled in the employer’s favour.

6I am also of the view that in the specific circumstances of these grievances, it would be inappropriate to grant the motion with respect to the discharge grievance while all of the underlying discipline remains.