GSB#2017-1132, 2017-1133

UNION#2017-0727-0004, 2017-0727-0005

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Marcil et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Natural Resources and Forestry)

Employer

BEFORE

Joseph D. Carrier

Arbitrator

FOR THE UNION

Alex Zamfir Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Caroline Cohen Treasury Board Secretariat Labour Practice Group Senior Counsel

TELECONFERENCE

February 8, 2018

Interim Decision

1The matter before me by way of teleconference on February 8, 2018 was a Motion by the Union that a hearing scheduled for February 15, 2018 be adjourned due to the unavailability of one of two Grievors.

2Although it was originally believed that both Grievors would not be available, it turned out that one could attend the hearing.

3The issue on the merits are claims for lost overtime opportunity for these two pilots which was allegedly occasioned when their supervisor worked hours which otherwise would have been available for them on overtime. Accordingly, the claim(s) arise from similar, or rather, the identical set of circumstances.

4The Union was seeking an adjournment in order to have both Grievors present for rescheduled proceedings as a matter of natural justice and to deal with any issue arising in relation to the apportionment of any remedy which might be awarded.

5In the circumstances set out below and for the reasons enumerated there, I declined that request.

The Facts and Timing

1. The hearing of February 15, 2018 had been set on September 14, 2017 and both Grievors had been so advised.

2. The Grievor "A" had, in the meantime, applied for and accepted a position in a northern outpost. That position involved two (2) weeks on duty and two (2) weeks off on a rotating basis.

3. We were advised that Grievor A's schedule of two weeks working included the February 15 hearing date.

4. There was no explanation why or if Grievor A could not have had his work schedule arranged such that his two weeks off would have included February 15th thereby allowing him to attend proceedings.

5. The Employer advised that the issue involving the supervisor will likely recur in the upcoming fire season. He is required to perform relevant pilot duties annually in order to maintain his credentials. An adjournment now would be prejudicial with respect to the employer's ability to manage the issue in the upcoming fire season.

6. Grievor A did contact his Union in early January to advise of his unavailability for February 15th.

7. The request for adjournment was not put to the employer until February 2, 2018. In all the circumstances including potential prejudice of a delay, the employer declined that request.

Decision

6Having considered the information provided and the submissions of counsel, I was satisfied that the Union's Motion to adjourn should be and was declined for the following brief reasons:

(i) There was no explanation why Grievor "A" accepted a two week work schedule which included the hearing date here nor was there evidence that he could not have made alternate arrangements with the other Employer.

(ii) The facts on the merits are similar, if not identical, for both Grievors and may even be the subject of an agreed statement by the Parties.

(iv) The other Grievor will be available for the proceedings and can testify should that be necessary.

(v) Any issue as to apportionment of remedy as between the Grievors can easily be remitted to the Parties for consideration and resolution failing which it could be referred back for final determination.

(vi) There is some legitimate concern with respect to prejudice to the employer regarding a delay impacting upon its ability to manage the issue in the upcoming fire season.

(vii) Finally, the Union has not established a sound basis for the adjournment. The Grievor knowingly made himself unavailable for the February 15, 2018 proceedings. The explanation for his unavailability was not satisfactory or acceptable to excuse him from attending.

(viii) Given the nature of the issue, the simplicity of the factual situation and the availability of the other Grievor, the matter may proceed in the absence of Grievor A without risk that proceeding in his absence would entail a denial of natural justice.

7In the circumstances, this was not a case in which I was persuaded to exercise my discretion. The Union motion to adjourn was, therefore, declined.