FPSLREB Decisions
Decision Information
Overtime - Probationary employee - Procedure - the grievor, a probationary employee, filed a grievance claiming payment for overtime - he was not present at the opening of the hearing - his counsel informed the adjudicator that the grievor could not be located - an adjournment was requested and granted - a new hearing date was set and the grievor was informed of it by registered mail - at that time, the grievor was notified that, unless he informed the Board of his intentions by a given date, the Board would assume that he did not wish to proceed with his grievance - the grievor informed the Board that he intended to proceed with his grievance - the hearing was rescheduled and the grievor confirmed that he would attend it - the grievor did not attend the rescheduled hearing - his counsel requested a further postponement, as he had been unable to communicate with the grievor since the hearing had been rescheduled - the adjudicator denied the request and ordered the parties to proceed - no evidence was adduced on behalf of the grievor - the employer requested that the grievance be dismissed - the decision was reserved for 14 days to allow the grievor to contact the Board to explain his absence - he did not communicate with the Board - the adjudicator considered the lack of justification for the grievor's absence at the hearing and the fact that no evidence had been adduced in support of the grievance - the adjudicator denied the grievance. Grievance denied.
Decision Content
Public Service Staff Relations Act
- Date: 2001-02-22
- File: 166-18-29542
- Citation: 2001 PSSRB 17
Before the Public Service Staff Relations Board
BETWEEN
TORVUL MONDRIAN BERRY
Grievor
and
STAFF OF THE NON-PUBLIC FUNDS,
CANADIAN FORCES
Employer
Before: Léo-Paul Guindon, Board Member
For the Grievor: Eric O'Brien, Counsel
For the Employer: Brenda A. Dagenais, Canadian Forces Personnel Support Agency
January 16, 2001.
[1] Mr. Torvul Mondrian Berry was hired as a Chef at the Hylands Golf Club, with the Staff of the Non-Public Funds, Canadian Forces, in Ottawa, on April 6, 1999. He was released from probation for cause on July 6, 1999.
[2] On August 19, 1999, Mr. Berry filed a grievance claiming payment for 297 hours of overtime which he had allegedly worked and for which he had not been compensated.
[3] The grievance was referred to adjudication on February 21, 2000.
[4] On March 23, 2000, the employer requested that, prior to the hearing, the Board rule on a preliminary objection based on three primary grounds:
the adjudication process is not open to a probationary employee, according to the collective agreement;
Mr. Berry has not presented his grievance up to the final level of the grievance process; and
the grievance would not be adjudicable under subsection 92(1) of the Public Service Staff Relations Act (PSSRA).
The Board forwarded that letter to Mr. Berry on March 23, 2000.
[5] On April 6, 2000, Mr. Berry responded to the objections raised by the employer.
[6] The employer's reply to Mr. Berry's response was filed with the Board on April 27, 2000.
[7] A hearing in this matter was scheduled for August 3 and 4, 2000, and the grievor was notified by registered letter dated June 28, 2000.
[8] On the morning of the hearing, Mr. Berry's counsel advised that it was impossible to locate Mr. Berry. A postponement of the hearing was granted, as Mr. Berry's testimony was required in this matter.
[9] Mr. Berry was notified, by registered letter, of the postponement of the hearing. He was also notified that, unless he informed the Board in writing of his intention to proceed in this matter by no later than August 25, 2000, the Board would assume that he did not wish to proceed with his grievance.
[10] On August 28, 2000, Mr. Berry informed the Board that he intended to proceed with his grievance and that he would attend at the hearing to testify.
[11] On August 29, 2000, the parties were notified that the hearing was rescheduled for December 18 and 19, 2000.
[12] On September 8, 2000, Mr. Berry confirmed that he could attend the hearing. However, due to the parties' limited availability, the hearing could not be rescheduled prior to January 16, 2001. The employer, Mr. Berry and his counsel were notified of the date of the rescheduled hearing by registered mail.
[13] The hearing commenced on January 16, 2001. In the absence of Mr. Berry, a further postponement was requested as he had declined communications with his counsel since the end of August 2000. The employer objected to such further postponement.
[14] I refused a postponement and ordered the parties to proceed with the hearing.
[15] Counsel for Mr. Berry had no evidence to submit in support of the grievance in the absence of the latter and the employer requested that I dismiss the grievance accordingly.
[16] I reserved my decision until January 30, 2001 to allow Mr. Berry to get in touch with the Board to explain his absence at the hearing on January 16, 2001. Since the Board received no communication from Mr. Berry, and considering all the circumstances described above, the lack of justification for Mr. Berry's absence at the hearing and that no evidence was submitted in support of the grievance, the grievance is dismissed and the Board's file is closed.
Léo-Paul Guindon,
Board Member
OTTAWA, February 22, 2001.