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HomeMy WebLinkAbout1992-0347.Massey.94-07-21gNTARI0 EMPLOY& DE LA COURONNE DE L’ONTARIO t&f:: rIANCE : CQMMISSION DE I SETTLEMENT REGLEMENT , -. BOARD . DES GRIEFS 180 DUNOAS STREET WES’T, SUITE 2100;.TORONTO, ONTiiRlQ MSG 128 TELEpkfGNE/T~L$PHONE: (4 16) 326- 1388 - 180, RUE DIJNOAS OUEST, BlJR5AU 2?00, TORONTO (ONTARIO). MSG 128 FACS~~~ILEIT~L$COPIE :, (4 76) 326- 1396 I ’ ‘1, 347/92 < ( IN THE MATTER OF AN ARBITRATION Under THE,CROWN EMPLOYEES COLLECTIVE BARGAINING ACT / Before .Y . THE GRIEVANCE SETTLEMENT BOARD BETWEE& OLBEU (Massey) - and - . , Grievor The Crown in Right of Ontario k (Liquor Control Board of Ontario)‘ Employer, _ BEFORE : R. Roberts Vice-Chairperson J. Carruthers Member / My Milich Member FOR THE GRIEVOR R. Davis ' ' Counsel 1 Koskie & Minsky Barristers f Solicitors FOR THE . D. Mombourqtiette -. *EMPLOYER Counsel Liquor Control Board of Ontario ' : HEARING June 1 & 7, 1994 .- _ . . . . ‘L.[. _. ,..-. jr .-., r . . 1 .., -Ty--yy- 7 --.:‘--y- ; _ _. / I 2 i INTERIM AWARD i> .’ \ At the outset of the hearing in this matter counsel for the Employer raised’ a preliminary / I objection to jurisdiction. The grounds for this objection were that the grievance was out of time because it was filed some 20 months after the grievor became aware of the events giving rise to the grievance. Essentially, the Employer took the position ithat the grievor became aware in May, 1990 that a C Store Manager posting for which he had applied in January; 1990, had been I filled by lateral transfer. Because the grievance was not filed until January, 1992, counsel for the Employer submitted, the grievance was stale and out of time. Counsel for the Union, however; disputed the assertion of the Employer that the grievor ’ was aware as early as May, 1990, that the position had been filled by lateral transfer. In this regard, he noted that, contrary to established practice, neither the grievor nor any of the other unsuccessful candidates received formal writteninotification that the position had been filled. Because of this and other difficulties, counsel submitted, the grievor did not learn.of the outcome ~ of the competition until January, 1992, a few -days before he filed his grievance. These submissions raised a substantial factual issue for determination in this proceeding, and both ‘. . parties called evidence in support of their respective positions. For reasons which follow we conclude that, on a balance of probabilities, the grievor was aware at least by June, 1990, that the job’ posting was filled by lateral transfer but forgot about 3 I it because at the time he was primarily concerned with the results of job competitions that were more attractive. Ii was only when the grievor was reminded in some way in January, 1992, that ‘. he decided to file a grievance. The resultant delay was unreasonable and was the responsibility of the grievor. In light of this, we conclude that the matter at.hand is not a situation in which our discretion to exercise jurisdiction ought to* be exercised. We must allow the preliminary objection and dismiss, the grievance. \ II .L I At the hearing, we heard evidence from two witnesses: the grievor; and, Ms Nicole Mahoney, a Human Resources Assistant in the Central Region Office in Hamilton, Ontario. Due to the passage of time, it seems, this evidence was not of the highest quality. There were I inconsistencies in the evidence and on both sides, a degree of revision upon cross-examination. Neither party, however, seemed to have any corroborative evidence available, and so it, was / L upon’ the evidence of these two witnesses that the Board had to rely. in making its findings of : / fact. ’ J Upon direct examination, the grievor testified that he had been employed by-the LCBO for 18 years as of October 4, 1994. In 1990, when the events leading to the present grievance took place, the grievor was a B Store Assistant Manager. At that time, the grievor applied for a considerable number of posted positions in A, B, and C Stores inthe Toronto area, including \ Hamilton; Mississauga, Central Toronto, Brampton, Scarborough, and other areas. In making , -_ . . ,’ 4 ., this effort, the .grievor said, he most interested in more attractive positions at the A and B Stores. He considered the position of C Store Manager to be lower in priority. i / The grievor said that he-never was notified by the LCBO regarding the outcome of the I .. posting for the C Store Manager position which is the subject of this grievance. He said that he tried to find out but it was difficult to figure out by himself what had happened. Then, in J 1’ January, 1992, a liquor salesman came into his store and in the course of their conversation, he said, the salesman informed him that the C Store Manager position was filledby lateral transfer of an A Store Assist& Manager, Mr. A. MacDonald. According to the grievor, he called Mr. D. Golding, his District Manager,‘and asked for confirmation of this information, Mr. Golding replied that the LCBO did what it wanted to do. \ Upon receiving this information, the grievor said, he. telephoned the Union and filed the i grievance leading to this proceeding. The grievance was filed a few days after the telephone said, occurred at about the same time that he wrote a letter to the Chairman of the LCBO complaining about this discrimination. The trouble was, the letter to the Chairman of the LCBO conversation with Mr. Goldmg. i Upon cross-examination, however, certain inconsistencies came to light. The .grievor testified .that he spoke to the liquor salesman a week or two after he had spoken to a Union i representative about filing a human rights complaint regarding his being -denied promotion to the I position of an A orB Store Manager. This meeting with the Union representative, the grievor ’ 5 , w/as shown to have been sent by the grievor on May 24, 1990. Using this date ‘as a reference r point, then, it would appear that the grievor was advised by the liquor salesman of the successful candidate in the present job competition in late May or early June, 1990, and not in January, i 1992, as he had initially thought. The witness for the Employer, Ms Nicole Mahoney, testified upon direct examination that on May 8, 1990, she received a telephone call ‘from the grievor in which he enquired why Mr. MacDonald had been transferred to fill the job that became the subject of the present grievance. In the course of this conversation, Ms Mahoney said, the grievor indicated that he had not received a letter informing him of the’result of this competition and that this was probably when she’discovered that, by error, no’ such letter had gone out to any of the unsuccessful candidates. Because the grievor sounded upset, Ms Mahoney added, she then referred the grjevor to her Supervisor, Mr. Henry McNaughton, the Human Resources Co-ordinator for the Central Region. Ms Mahoney further,testified that, as was her habit when she received-calls from agitated persons, .she made a diary entry of what happened in her telephone call with the grievor. Counsel for the Employer then sought to enter into evidence what purported to be a photocopy of this diary entry. It stated: D. Massey, re: CR04/90 / He called - upset - questioning re J. MacDonald getting trans[ferred] into job. Heard him out & then I asked him to speak to Henry [McNaughton] or Jack [Powell, the grievor’s District Manager and the person who requested the competition to be cancelled by virtue of the transfer]. ‘I . .., :. ‘Y” ,, ,.. ,..,._ -. 1. I. * . . *. /’ I ~-’ . . .- 6 As can be seen, this fiurported diary entry was very specific as to the state of knowledge of the I grievor. The probative value of this evidence, however, was subsequently cast into doubt . When counsel for the Union requested the original of the witness’ diary for pur$oses of adequate cross- examination, the original could not be produced. Ms Mahoney explained that she only discovered the diary entry the day before she was scheduled to give evidence at our hearing and that after making a photocopy to give to counsel for the Employer, she placed her 1990 diary!, along with several others, into a trash: bag and left them with other superfluous items to be thrown out by the maintenance staff in her building. It seems that.at the time, Ms Mahoney’s office was moving, and this action on the part of Ms Mahoney was in response to a directive to dispose of unnecessary items before the move took place. When cross-examined with reference to the purported diary entry, Ms Mahoney became considerably less clear in her testimony regarding what was said in her telephone conversation with the grievor. She said that she remembered two telephone conversations with the grievor: -’ the first was a fairly common occurrence before a competition closed, ,and that was to ,enquire where he stood with respect to other applicants regarding seniority; the second was the May 8, 1990 call, which was confrontational. She said that in this call, the grievor asked her questions , regarding the C Store Manager competition but she did not recall what he had asked. She said that she told him that the competition was cancelled and someone had been transferred into the position. She added that she probably did not give him the name of the person who was transferred. .’ , \- I 7 This evidence clouded somewhat the evidence given upon direct examination. The thrust of Ms Mahoney’s evidence upon direct was’that the grievor essentially knew who the successful ‘. candidate was prior to calling her and called her to find out why Mr. ‘MacDonald had. been . transferred into,the job. On cross, Ms Mahoney stated that she could not recall what the grievor I had asked and did not think she named the successful candidate. These differences, along with the disappearance of the’otiginal diary, cast into doubt the question whether as of May 8, 1990, , the grievor actually knew that Mr. MacDonald had been the successful candidate. ‘_ III Nevertheless, we are convinced’on a balance of probabilities-that the grievor knew by late May, 1990 or early June, 1990 that the position in question had been filled by lateral i transfer. This inference is supported by the grievor’s own evidence upon cross-examination, which established to our satisfaction that the conversation with the liquor salesman ‘that induced the grievor to file the instant grievance occurred in May; 1990 and,& as the grievor thought, I January, 1992. This was at least 18-19 months before the.grievance was filed. The question then becomes:, in the circumstances of this case, was an. 18-19 month delay in filing too unreasonable to permit the grievor to bring the merits of his grievance to arbitration 1 before the Grievance Settlement Board? We think that it was, and jurisdiction of this matter must be respectfully declined. ,’ , i. :. -‘T: .,.. --“--c’T .,; Local 1280 (1992), ,27’L.A.C. (4th) 154 (Brandt), the board reviewed as follows the factors to be considered in deciding whether to exercise its discretionary power under s. 45(6) -of the Labour Relations Act to relieve against time limits: The factors to be taken into account by a board of bbitration in deciding whether or not to exercise the discretionary power conferred under s. 45(6) of the Labour Relations &t are reviewed in Re Becker Milk Co. and Teamsters Union. Lot. 647 (1978) 19 L.A.C. (2d) 217 (Burkett), and Re Greater Niagara General Hospital and O.N.A, (1981), ~1 L.A.C. (3d) 1 (Schiff). In the Greater Niagara General Hospital case Professor Schiff lists the following relevant factors: the nature of the grievance, whether the delay occurred in initially launching the grievance or at some later stage, whether the grievor was responsible for the delay, the reasons for the delay, the length of,the delay, and whether the employer could reasonably have assumed the grievance had been abandoned. . . . a. at 156. These factors. have been applied in a number of arbitration awards. Considering the foregoing factors, it seems that, upon the facts as found by the board, there is little in the way of foundation for exercising our discretion. As to the nature of the ~ grievance, .a job posting grievance can involve significant rights. under the collective agreement, and in particular, those relating to seniority. At the same time, however, the nature of the, grievance dictates the’nature of the evidence, and here, that would involve calling evidence of the relative qualifications and seniority of the grievor and Mr. MacDonald as of January, 1990, some four years ago. This evidence would relate to a competition that never took place because of a lateral transfer, and so would be in the nature of a first-time run before this Board. As has been experienced in the evidence upon this preliminary objection, the quality of the evidence 1’ / ‘, _ \ : 9 ’ brought before the Board after the passage of such a lengthy period’ of time might be : questionable and provide little in the way of an adequate basis for any reliable determination. . . \ _ ,. , Moreover, the delay occurred in initially launching the’ grievance. In light of (this, it f would have been ‘reasonable for the Employer to have inferred that no such grievance was forthcoming.’ As we have already found, the grievor was responsible for this delay. While ,it was true that the Employer did not formally notify ,the grievor or pther candidates of the results of the competition, we have found as a fact that the grievor learned ,through other means that i \ : Mr; MacDonald had filled the job by a lateral transfer. It seem unfortunate that other more . : pressing concerns regarding more attractive job postings caused the grievor to forget about this particular competition; however, this cannot be regarded as adequate reason,for relieving him of the consequences. , , As was said in Re Metronolitan Senarate School Board,’ supra: .- ^ : We accept that, in principle, genuine disputes between the parties to a collective agreement should be resolved on their merits and not be disposed of on what might be considered to be a technicality, However, we consider the position taken by the union to be too broad. It would render s. 45(6) of the Labour Relations ‘Act useless except in cases in which the grievance raised issues which were entirely personal and idiosyncratic to the grievor. . . . We do not believe the Act should be applied in such a fashion. ..&l. at 158. .It is not possible for the existence of a genuine dispute potentially ,involving a significant right under the Collective Agreement to save every grievance from the consequences of undue delay in filing. Here, the 18: 19 month delay was undue. :- , / i: : ,._ : , -,-T---p-,---y--- ! 10 The preliminary objection ,is allowed and the grievance is dismked. DATED at London, Ontario, this 21 st day of July, 1994. . I , ‘I erson ’ I concur I concur 1 Au&P x M. Milicb, Employer Member J \ -.----- ‘.+.‘.L. ._.. ,:.