GSB#2014-4401, 2015-1575

UNION#2014-0506-0014, 2015-0506-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Raja)

Union

• and -

The Crown in Right of Ontario (Ministry of Transportation)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

John Brewin Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Lisa Compagnone Treasury Board Secretariat Legal Services Branch Counsel

CONFERENCE CALL

December 17, 2015

Decision

1The Board is seized with a grievance filed by Mr. Faisal Raja. He grieves that he has been terminated without just cause. Additionally he has alleged that the employer had discriminated against him. This is a written confirmation of an oral ruling at the conclusion of the teleconference.

2This is a case where the employer bears the onus on the termination issue, while the union has the burden of proof in relation to the discrimination allegations. They were in dispute as to the hearing process that should be followed in the circumstances of the mixed onus.

3The union’s position was that the discrimination issues should be severed and disposed of first, before dealing with the termination issue. The employer, on the other hand, argued that the termination matter ought to be bifurcated and dealt with first, before turning to the discrimination allegations.

4Having considered the issues involved, and the nature and extent of the evidence that may reasonably be anticipated, I orally ruled on the matter to the effect that in the circumstances, neither position advanced by the respective parties was appropriate. It was ordered that all of the issues raised by the grievance be heard without bifurcation. To address the existence of a mixed onus, the employer will proceed first with its evidence on the termination, after which the union will have opportunity to respond with its evidence on that issue, and also to lead its evidence to substantiate its discrimination allegations. Next, the employer would lead any reply evidence on the termination issue, and its evidence in response to the discrimination allegations. Finally, the union will have the opportunity to call any reply evidence it may have on the discrimination allegations. It was ruled that the closing submissions would follow the same sequence.

5The oral ruling rendered is hereby confirmed. The hearing will proceed on the scheduled dates in accordance with the Board’s ruling.