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HomeMy WebLinkAbout1992-1721.Thompson.95-01-24., f ONTARIO - ’ . ( ’ CROWN EMPLOYEES EMPLOY& tiE LA COURONNE - DE L’ONTARIO GRIEVANCE SETTLEMENT CQMMiSSlON.DE REGLEMENT BOARD DES GRIEFS ‘, 180 DUNDAS STREET/IA(EST, StilTE 2100, .TORONTO, ONTARIO. 126 MSG TELE~H~NE/TEL$PHoNE: (4 161 326- 1386 160. RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G 12.9 fACS/MILE/T~LkOP/E : (4 161 326- 1396 GSB# 1721/92 OLBEU# qLB129/92 i IN TEE MATTER OF AN ARBITRATION Under THE CROWN BMPLOliEES COLLECTIVE BARGAINING ACT. Before .’ THE GRIEVANCE SETTLEMENT BOARD BETWEEN 7 BEFORE: FOR THE J. Noble, UNION " Counsel FOR THE EMPLOYER EARING OLBEU (Thompson) i , Grievor -' anu - - The Crown in Right of Ontario ' (Liquor Control Board 6f Ontario) I Employer I R. J. Roberts Voice-Chairperson' S. Urbain . Member *I F. Collic$ +. Member On&i0 Liqupr Boards Employees Union _’ D..Mombourquette Counsel Liquor Control Board of Ontario ,i \ November 15,. 1994 i ? F ! c: 2 .- c, INTERIM~AWARD . / ‘\ At the outset of the hearing in this matter, counsel for the Employer objected to ” jurisdiction. The basis \for this objection was that pursuant to a p&y of the Grievance Settlement Board the grievance at hand ,had been terminated. It was: further submitted that if, . in spite of this termination the Board concluded that it retained discretion to reinstate the case, this discretion should not be exercised here because the Union had not demonstrated any compelling reason to do so. For reasons which followJ the preliminary objection is dismissed. In the course of argument upon the preliminary objection, counsel referred to the following series of events involving the present case: On February 15, 1994 Owen B. Shime, the. .Chairperson of the Grievance Settlement Board, issued a memorandum to a number of. I Unions and Employers, including the Union herein, that incorporated by reference the latest copy of the Board’s ,Adjoumment/Inactive List. This list set forth a number of cases ‘that had been adjourned, including the present case. The date of adjournment for the present case was ’ identified as January 19, 1993. ~ The memorandum from the Chairperson stated, in pertinent part: THE ADJOURNMENT/INACTIVE LIST 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 _I every six months. 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. 3 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 in the case may be, or io have the case remain on the list pending the outcome of another *matter. Requests to activate .must be made within a year .from the dates that the case appears on the inactive list. Essentially, the recipients of the memorandum were notified that it was their responsibility to request the Board to keep open cases that had been on the Adjournment/Inactive List for one year; otherwise the file on the case would be, closed and the proceedings would be deemed terminated. ’ On April 5,l994, the Union herein identified in writing to the Registrar of the Grievance Settlement Board a number of cases from the Adjournment/Inactive List that it wished to remain active. The case at hand was not among them. -3 J I i. ,On May 2, 1994, the Registrar wrote, inter aha, to the Union at band, advising that a number of cases. from the Inactive List had been terminated. The case at hand was included -., among them. Interestingly, the May 2, 1994 memorandum from the Registrar stated that the termination of the cases was being effected “[i]n accordance with Mr. Shime’s letter of September 13, 1991.” When a. copy of this letter was requested by the Union, the letter could not be found. In its place, the Board sent the Union a copy of a memorandum from Mr. Shime dated November 19, 1990 that stated, in pertinent part: ’ On July. 5; 1989, we wrote you concerning a new procedure, involving an adjournment/inactive list. At that time it tias noted that unless either party to the proceedings requests that the cases remain open, cases that have not proceeded within a year from the date of their adjournment Will. be terminated and the files will be closed without further. communication to the parties. . - This was essentially the same notice as appeared in Mr. Shime’s memorandum of February 14, 1994, supra. It was indicated to the Union that Mr. Shime’s letter of September 13, 1991, was similar in nature. /‘ By letters dated June 15. and 22, 1994, the Union attempted to activate the case’at hand ,- and have it scheduled for an arbitration hearing. By letter dated June 22, 1994, the Employer ‘, confirmed to the Registrar its position that m the May 2, 1994 memorandum from the ” \ .’ Registrar, the case had been terminated. On August 9, 1994, the Registrar sent a letter to the Union advising that the case could not be activated because it was “already terminated on May 2, 1994.” By letter dated September 13, 1994, the Employer reiterated its position to the Registrar, enclosing a copy of the Registrar’s letter to the Union of August 9, 1994. This did not, however, end the matter. ‘On October 25, 1994, Gwen B. Shime, the Chairperson of the Grievance Settlement Board, sent a letter to Mr. John Coones, the President of the Union, agreeing to hold on the Adjournment/Inactive List” all Ontario Liquor Boards Employees Union files on the August 25, 1994 . . . ,List. ” A copy of this list was appended’ to the letter. Included among the cases on this list was the case at hind. The entry for this case * indicated that’it had been adjourned on August 9, 1994 for the purpose of rescheduling a I I \ i I i ’ i. \ . . :’ : 5 hearing. (August 9, ‘-1994, it will be noted, was the date upon which the Registrar sent a letter to the Union advising that the case could not be activated because it had been terminated.) At the hearing, it was submitted on behalf of the Employer that because this case was terminated pursuant to a policy of the Grievance Settlement Board, we did not have discretion to reinstate the case. In the alternative, it was submitted that if we concluded that we did have -_ this discretion, it should only be exercised where there were compelling reasons to do so and no such compelling reasons existed here. 1 The Union on the other hand submitted that we did have discretion to reinstate and that it would be unfair to the grievor and a windfall gain to the Employer to refuse to reinstate this . . case. It was further submitt+ that the case was, in fact, reinstated by the actions of Mr. Shime . _ ” in his letter to the Union dated October 25, 1994. In connection with these submissions, we were referred to Re Brand and Minis&v of Correctional Services (1990), G.S.B. No. 1516/87 (Dissanayake). Upon due consideration of the evidence and argument of the parties, we conclude that the case at hand was, in fact,reactivat@ by the action oP Kr. Shime in his letter.dated . - October 25, 1994. This letter indicated that the case had been adjourned on August 9, 1994 ‘for the purpose of rescheduling a hearing. Counsel for the Employer suggested that the Chairperson might have taken this action for the sole purpose of permitting the jurisdictional question to be placed before a panel. There is, however, no evidence to support such a narrow -interpretation \ I . \, _’ . 6 of the Chairperson’s intent. It was stated in the entry for this case that it was adjourned on August 9, 1994. for the purpose of rescheduling a hearing. There was nothing to indicate that the hearing was to be limited in any ivay. \ i The preliminary objection is dismissed and the Registrar is directed to schedule this case for a hearing upon the merits at the earliest convenience of,the Grievance Settlement Board; DATED at London, Ontario this 21th day of January, 1995. . . -L;r.,-dll: 5$L- Lll.k& S. Urbain, Union Member (y/7+&, : F. Co %t, mployer Member