GSB# 2015-3464

UNION# 2016-5112-0024

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Nash)

Union

• and -

The Crown in Right of Ontario (The Ministry of Community Safety and Correctional Services)

Employer

BEFORE

D.J.D. Leighton

Arbitrator

FOR THE UNION

Gregg Gray Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

James Cheng / Laura McDonald Treasury Board Secretariat Employee Relations Advisors

HEARING

June 21, 2018

Interim Decision

1This grievance proceeded to hearing on January 18, 2018, using the expedited process that the parties agreed to on April 8, 2011 in a letter of understanding regarding improving and maintaining labour relations between the parties and the “Local Mediation-Arbitration Protocol,” which was included in Appendix COR26 of the collective agreement between the parties, dated November 18, 2016.

2Normally under this process the parties present evidence to support their case and submissions as to why they should prevail on the day the case is set to be addressed. If the case is not settled then the arbitrator decides the case, and issues a decision without reasons. On occasion, the arbitrator may find that the evidence is not clear and it would not be fair to decide the case as presented. When this happens, the case is either referred to Joint File Review to be assigned to a fresh arbitrator to hear the case. Some times when the case proves to be more complex than anticipated, the parties will agree to a further day of mediation with the arbitrator who heard the case during the med-arb.

3In this case towards the end of the presentation of Ms. Nash’s grievance, the employer representative informed me that the manager with knowledge of the case was not available, and they needed to be able to consult with her to respond to the union’s claims. The union representative took the position that it was late in the day to claim not to be ready to proceed. The case had been presented to me with some interruptions over the course of the afternoon.

4The protocol requires that the parties be ready to present their cases when they proceed and an interruption in the process defeats the purpose of dealing with these cases expeditiously. However, in an attempt to be fair, I decided that the employer should have an opportunity to consult the manager in question and so we set a further day to resume the mediation, with the hope of ultimately settling the case.

5Before this hearing could take place, the employer sought production of certain of the grievor’s medical records from prior to her grievance. The motion was heard by conference call and was opposed by the union. The union submitted that the motion was seeking evidence beyond the scope of my decision to allow the employer to consult the absent manager. And further, this should have been done well before the January 18, 2018 hearing, not when it was almost over.

6Having carefully considered the submissions of the parties, I have decided to dismiss the employer’s motion. There was never an agreement to hear the case de novo. The delay was not an opportunity for the employer to marshal another

case. The adjournment was only for the purpose of consulting the manager who was not present on January 18, 2018.