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HomeMy WebLinkAbout1986-0863.Farley.87-12-07863186 IN THE MATTER OF AN ARBITRATION Under THE' CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Emerson Farley) Grievor and The Crown in Right of Ontario (Ministry of Correctional Services) Employer Before: E. J. Ratushny I. J. Thomson H. Roberts Vice Chairman Member Member For the Grievor: Helen Sharpe Counsel Gowling and Henderson Barristers and Solicitors For the Employer: A. P. Tarasuk C0lJIBel Central Ontario Industrial Relations Institute Hearing: November 19, 1987 DECISION This decision deals with the request by counsel for the Grievor for an adjournment'and the motion by counsel for the Employer to dismiss the grievance for failure to comply with mandatory time limits. The circumstances surrounding the request for an adjournment are as follows. The Grievor is on vacation in Barbados. Correspondence dated November 12th indicates that the Grievor was aware that this matter would be proceeding. However, it does not indicate that he was aware that it would be proceeding on the date of this hearing (November 19th). On November 16th, when she became aware that the Grievor was out of the country, counsel for the Grievor contacted the Ministry and requested an adjournment. The person responding was not in a position to deal with the request but, late the following day, counsel. for the Bmployer contacted her by telephone. The position of the Employer was to agree that the matter should not proceed on the merits. However, he saw no reason why the preliminary issue of possible failure to comply with the mandatory time limits could not proceed. At this hearing, both counsel agreed that the time limits in question were, indeed, mandatory. The problem relates to a purported lapse between the stage one and stage two proceedings. The Grievor's position is that a letter dated May 27, 1986, was sent to the Employer forwarding the second stage grievance. The Employer's position is that this letter was never received. Counsel for the Employer argued that since the letter in question was signed by the Chief Steward, rather than the Grievor, questions of fact involving the letter could have been resolved at this hearing without the presence of the Grievor. However, although the Employer -initially took the position that the time limits had not been met, a meeting was “I ., -2- subsequently scheduled by the Employer and actually held. Counsel for the Grievor takes the position that the holding of this meeting raises the issue of whether there has been a waiver of the time limits by the Employer. She adds that this can only be determined by hearing evidence from the Grievor and others as to what actually transpired at the meeting. In addition, the correspondence referred to at this hearing includes a letter dated June 24, 1986, from the Chief Steward to the Deputy Minister. The letter refers to a conversation between Mr. Kevin Wilson, steward at the Toronto jail, and an assistant personnel administrator with the Ministry. Counsel for the Grievor submitted that this conversation might also provide evidence of the contended waiver. Apparently, Mr. Wilson is on a one year leave of absence from his work and is presently somewhere in the Huntsville area. In the Board's view, the preliminary motion of the Employer with respect to timeliness cannot be resolved without the determination of questions of fact. These cannot be addressed in the absence of evidence from witnesses such as the Grievor, Mr. Wilson and, possibly, others. With respect to the absence of the Grievor, the Board has taken into account the reality that vacations abroad usually require booking far in advance and that, as late as November 12th, there was no indication that the Grievor was aware of the exact date of this hearing. In view of these circumstances and the absence of any indication of prejudice to the Employer, the adjournment is granted. This Board makes no ruling on the issue of timeliness which may be dealt with completely by the Board which will be constituted to deal with the merits. However, we do note that counsel for the Employer has raised the issue of continuing -3- liability and requested that delay should be. taken into account in relation to any liability which might be found. Again, we are of the view that this issue is best addressed by the Board which will be constituted to deal with the merits. However, during the hearing, Board members expressed concern that these proceedings not be subjected to further delays in future. In particular, the future availability of the witness, Kevin Wilson, was raised. Counsel for the Grievor indicated that every effort would be made immediately to locate Mr. Wilson and that a subpoena would be issued, if necessary, to ensure his presence at the next hearing. The Rmployer offered to co-operate fully by consulting'its records and making information available in order to locate Mr. Wilson. The Board is of the view that this matter can be dealt with most expeditiously by the Registrar re-scheduling it for hearing before another Board as quickly as possible after confirmation from counsel that the witness, Wilson, has been located. No exhibits were filed before this Board. DATE0 at Ottawa this 7:th day of December, 1987.