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HomeMy WebLinkAbout1998-0949.Reid.00-01-20 DecisionONTARIOEMPLOYÉS DE LA COURONNE CROWN EMPLOYEESDE L’ONTARIO GRIEVANCECOMMISSION DE SETTLEMENTRÈGLEMENT BOARDDES GRIEFS 180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G 1Z8TELEPHONE/TÉLEPHONE,(416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G IZ8FACSIMILE/TELECOPIE:(416) 326-1396 GSB # 949/98, 951/98 OLBEU # OLB347/97, OLB 306/97 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Liquor Boards Employees Union (Reid, Paulos) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Loretta MikusVice Chair FOR THE Julia Noble GRIEVOR Legal Counsel Ontario Liquor Boards Employees Union FOR THE Alison Renton EMPLOYER Counsel, Legal Services Liquor Control Board of Ontario HEARING June 23, 1999 September 17, 1999 2 This grievance concerns a job competition dated August 5, 1997 for seven full time Customer Service Representative positions. This award deals with the preliminary objection of the LCBO to the introduction of the Union=s argument that the Employer is estopped from changing its practice regarding the placement of part time employees into full time positions. The vacancies arose out of a newly negotiated job vacancy review that established the need to convert part time position into additional full time positions. In this case, thirty-five employees applied for the seven positions, and thirteen were interviewed. The decision as to who should be interviewed was made on the basis of the candidates= seniority, last two performance appraisals, disciplinary record and completion of the Product Knowledge Level II course. The performance appraisals were given numerical values and scored against a total of 40% of the final mark. The interviews were valued at 60% of the final mark and candidates were considered for jobs based on a combination of those two factors. From those totals was calculated a relative equality range that determined the candidate=s final placement on the chart of those to be offered a position. The hearing into this matter commenced on June 23, 1999. Prior to the hearing the parties had exchanged particulars concerning the factual and legal underpinnings of their cases. During this time the Union did not raise any argument regarding estoppel. The Union, in another case before me concerning the same form of job competition in another region, raised in final argument the issue of estoppel, which it later abandoned. As a result of the Union=s conduct in that case the Employer sought and obtained from the Union an assurance that it did not intend to raise an estoppel argument in the instant case. Two weeks later it received a letter from Union counsel advising it that the Union would, in fact, be raising an estoppel argument at the commencement of the next day of hearing, which was September 17, 1999. The LCBO took the position that it was too late in the process to raise a new legal argument. The job competitions were not done in secret. The Union knew that the Employer intended to introduce a competition process in awarding these jobs. At no time during the grievance procedure did the Union raise any objection to the introduction of the new process. In the alternative, it was contended that the Union 3 was attempting to alter or expand the grounds of the original grievances. The estoppel argument of the Union is not inherent in the original grievances and is substantially distinct from the original grievances that would require additional and distinct evidence. Finally, it was argued that the LCBO will be prejudiced if the Union is allowed to proceed. The Board has heard evidence from two of the grievors and the LCBO has lost its opportunity to cross-examine those witnesses with respect to estoppel. The Employer asked this Board to dismiss the Union=s motion to proceed on its estoppel argument. The Union took the position that the Union should be allowed to raise its estoppel argument for several reasons. In the first instance, there will be no prejudice to the Employer if the Board should rule in the Union=s favour. The first day of hearing was June 23, 1999 and the grievor John Paulos was called as a witness. At the commencement of the hearing on September 17, 1999, the Union raised its request to be allowed to advance its estoppel argument about. The grievor, Leslie Reid was then called as a witness, without objection from the Employer. It was agreed at the time that the Grievance Officer for the Union, Jean Chaykowski, would not be called as a witness because her evidence would relate, in part, to the estoppel issue. The two grievors who have testified would have little if any knowledge of or evidence relating to the issue of estoppel. If, however, the Employer does want to question them about the past practice, they can be recalled to the stand. The Employer will have suffered no prejudice with respect to the hearing itself. The Employer has not yet opened its case and, it was submitted, it is through them that the evidence regarding the issue of estoppel will be found. The Union asserted that it is entitled to raise any relevant arguments in the presentation of its case, particularly technical legal arguments that may not have arisen in the early stages of the grievance procedure because of the absence of legal counsel at those stages. If the Employer takes the position it has been unfairly surprised by the introduction of this new argument, the appropriate remedy is an adjournment to allow it time to prepare to meet the union=s case. In the instant case, the Employer can hardly argue that it has not had sufficient time to prepare. The next hearing date is February 9, 2000. The Employer has had 4 four months to prepare its witnesses and gather the evidence it requires to meet the Union=s case. The Union took the position that the estoppel is an equitable doctrine that is applied to rectify an unfair situation in which one party acts to its detriment because of its reliance on the other party=s representations. It is not, in and of itself, a grievance. Raising it at this stage of the process cannot be characterized as the introduction of a new grievance or an expansion of an existing grievance. Having considered the submission of the parties I have concluded that the Union=s motion to include its estoppel argument should be allowed. There will be no prejudice to the Employer if I allow this motion. The Union=s two witnesses are available to be recalled if the Employer believes their evidence will be necessary. The Union=s major witnesses on this issue have not yet testified and the Employer will have ample opportunity to cross-examine them after their evidence in chief. The Union has given the Employer sufficient notice to overcome any surprise that might have resulted from its introduction at this stage of the proceedings. The Union=s motion is therefore granted and it may introduce, at the next day of hearing, its evidence regarding the issue of estoppel. However, to be clear, this decision only applies to the Union=s request to include the issue of estoppel in its case against the LCBO. Whether an estoppel exists remains to be determined once the evidence and submissions of the parties have been concluded. Signed this 20th day of January, 2000 Loretta Mikus, Vice-Chair