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Home My WebLink About1990-1249.King-Marshall.92-11-10i i . ONTARJO EMPLOYES DE L4 Co”RONNE CROWNEMPLOYEES DEL’ONIARIO GRIEVANCE CQMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE: A. Barrett J. White F. Collict FOR THE m S. Philpott Counsel Xoskie & Minsky Barristers & Solicitors FOR THE EMPLOYER J. Ravenscroft Grievance Officer Ministry of Correctional Services REARING September 30, 1992 Before THE GRIEVANCE SETTLEMENT BOARD OPSEU (King-Marshall) - and - Grievor The Crown in Right of Ontario (Ministry Of Corrrectional Services) Employer Vice-Chairperson Member Member This decision concerns a preliminary issue raised by the employer. These grievances were "deemed terminated" on March 15, 1992, by the Grievance Settlement Board because, after two earlier adjournments, they remained on the inactive list for 13 months. This was done pursuant to an administrative policy of the Board which has been in existence in one form or another since 1984. Four times a year the Board sends to all of the parties an adjournment/inactive list containing all of the cases that have been adjourned sine die and the reasons for their adjournment, along with the original hearing date and the (date of the adjournment. There is an explicit warning attached to the list in the following form: These two grievances appeared on the adjournment/inactive list four I times in 1991-92, with a notation that they were "adjourned pending the “RE : ADJOURNMENT/INACTIVE LIST Attached is the latest copy of the Adjournment/Inactive List. This is to advise that all cases appearing on the~list for more than one year, up to and including February 15, 1991, will be closed by the Board on March 15, 1992 without further communication to the parties. It is the responsibility of the parties to advise the Board in writing to re-activate a case. NOTICE: THIS LIST CONTAINS CASES THAT HAVE BEEN SCHEDULED FOR HEARING AND HAVE BEEN ADJOURNED AT THE REQUEST OF THE PARTIES. THE LIST WILL BE PUBLISHED QUARTERLY. WHERE A CASE APPEARS ON THE LIST FOR MORE THAN A YEAR THE BOARD'S FILE WILL BE CLOSED AND THE PROCEEDINGS IN THAT CASE WILL BE DEEMED TO BE TERMINATED. IT IS THE RESPONSIBILITY OF THE PARTIES TO HAVE CASES REMOVED FROM THE INACTIVE LIST AND EITHER PARTY MAY DO SO BY ADVISING THE BOARD IN WRITING OF THEIR DESIRE TO ACTIVATE THE FILE FOR EITHER PRE-HEARING OR HEARING AS THE CASE MAY BE, OR TO HAVE THE CASE REMAIN ON THE LIST PENDING THE OUTCOME OF ANOTHER MATTER. REQUESTS TO ACTIVATE MUST BE MADE WITHIN A YEAR FROM THE DATE THAT THE CASE APPEARS ON THE INACTIVE LIST." 2 outcome of Barber et al". On March 31, 1992, the Registrar of the Board sent to the parties a list of cases th~at~ had been terminated due t~o'the operation of the policy, and these grievances appeared on that list. Finally in August, 1992, a union representative wrote to the Registrar of the Board requesting that the grievances be scheduled for hearing. The Registrar did so and the matter came on before us on September 30, 1992. The union says these grievances "slipped through the cracks" and th,at i TV never formed the intention to abandon or withdraw the grievances. Counsel argues that we should not give effect to an administrative policy of the Board to deem these grievances terminated. There was no defect in the grievance procedure set out in the collective agreement and no breach of any time limits therein. The Crown Employees Collective Bargaining Act makes no mention of deemed terminations for delay. On the contrary, section 19 of CECBA says that. the Grievance Settlement Board "after giving full opportunity to the parties to present their evidence and to make their submissions, shall decide the matter. . . “. While conceding that the policy may be administratively efficient, counsel warns against applying it in every case. This Board has a discretion to dismiss a grievance for delay, but we should not restrict our discretion by a rigid adherence to policy. Counsel also refers to section 20 of CECBA which creates the Grievance Settlement Board and sets out its powers. In particular, section 20(8) (now 20(9)) states: "The Grievance Settlement Board shall determine its own practice and procedure but shall give full opportunity to the parties to any proceedings to present their evidence and to make their submissions...". 3 Thus, while the Board may determine its own procedure, it must a ,110~ the parties to present their evidence and .make their submissions. While st.ressing the mandatory requirement for a hearing in section 19 and section 20 of Cm, counsel concedes that this. Board has jurisdict.ion to dismiss grievances for unwarranted delay. However, we shou1.d only do SO after hearing evidence about the causes for the delay and any possible prejudice to the employer arising out. of its. In this case t.he employer, in reliance upon the deemed termination, destroyed most of its file, but concedes that it would be able to reconstruct it and defend the grievances if necessary, although with some considerable difficulty. Union counsel argues that, absent real prejudice to the employer arising out of the delay, the grievor's right to a hearing should not be impaired by delay (Freedman, GSB #12/84 (Samuels)). Employer counsel relies upon Brand -, GSB #1516/87 (Dissanayake), where, when the same preliminary objection was raised with respect to the administrative practice, it was held at page 3: II This Board has been granted jurisdiction under section 20(8) of the Crown Employees Collective Bargainina Act, to determine its own practice and procedure. In our view, this authority includes the discretion to refuse to entertain grievances which have been referred to the Board but not pursued within a reasonable time and without reasonable excuse. . . . The issue here is whether we ought to exercise our jurisdiction in the particular circumstances to adopt and enforce the administrative note in question." In the Brand case, the Board declined to enforce the "deemed termination" because the condition precedent regarding notice set out 4 in the administrative note had not been met. It appears that in the Brand case, no one challenged the pronriety of the administrative note, The issue is raised squarely in this case, says union counsel. In our view, the Brand panel did consider the propriety of an administrative note governing our practice and procedure. The panel squarely framed the issue as to whether or not it should exercise its discretion to adopt and enforce the administrative note. There was no suggestion of rigid adherence to a policy or an assertion that we are automatically bound by it and that our discretion is thereby circumscribed. We.are not bound by the administrative policy, but we speak for all panels of the Board when we say that it is an eminently sensible and fair mechanism for disposing of slumbering cases which might otherwise linger for years in a state of suspended animation. The parties receive four written warnings of our intention to terminate the grievances, unless a simple request is made to keep them alive. This has the effect of lifting the onus to show prejudice from the party seeking to dismiss a grievance for delay and placing it on the party who has neglected~ to respond to urgings that it make a decision to proceed or terminate. It is open to a party to show cause to a panei of the Board why a deemed termination pursuant to our procedure would be unjust in special circumstances, but "slipping through the cracks" is not a special circumstance. which would warrant us exercising our discretion to reinstate a neglected grievance. 5 Arbit~ration is the process for the expe,fiitious determination of disputes between the parties. It is our~duty a:; a Board to expedite the determination of grievances to the extent our resources allow. To do so we have adopted a practice or procedure for disposing of cases not actively pursued so that our time and energy can be spent on the active grievances. In result, we dismiss these grievances for delay because the union has not shown sufficient cause that they should not be so dismissed. Dated at Toronto this 10th day ofnovember, 1992. A. Barrett, Vice-Chairperson F. Collict, Member