HomeMy WebLinkAbout1993-1724.Longe.99-02-03Oh’-LARib EMPLOY& DE IA COURONNE
CROWN EMPLOYEES DEL’ONTARK)
GRlEVi4NCk COMMISSION DE
SEllLEMENT RCGLEMENT
BOARD DES GRIEFS.
180 DUNDAS STREET WESr, SUL?E 800, TORONTO ON M5G iZ8
180, RUE DLJNDAS OUES7; BUREAU 600, TORONTO (OM M5G lZ8
IN THE MATTER OF AN ARBITRATION
Under
TELEF’HONE/7iLh’HONE : (416) 326-1388
FA~SItdLE/T~tiCOPIE : (416) 328-1395
GSB # 1724193
CUPE 1750 - 93-30
, .,
THE-CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Canadian Union of Public Employees Local 1750
(Wayne Longe)
BEFORE
FOR THE
GRIEVOR
FOR THE
EMPLOYER
EXECUTIVE
SESSION
- and -
The Crown in Right of Ontario
(Workplace Safety & Insurance Board -
formerly Workers’ Compensation Board)
Loretta Mikus
James Carnithers
Michael Milich
Vice-Chair
Member
Member
James K. McDonald
Counsel
Sack Goldblatt Mitchell
Barristers & Solicitors
Elizabeth Kosmidis
Solicitor, Legal Services Branch
Workplace Safety & Insurance Board
October 16, 1998
Grievor-
Employer
On July 9, 1997 this Board dismissed the grievance of Wayne Longe alleging unjust
termination from the Workers’ Compensation Board. The reasons for the dismissal are found
on page 3 of the decision as follows:
us to reconsider our earlier decision. At the hearing in March of 1997, we were satisfied that
abandoned any retroactivity to obtain that adjournment.
With respect, we are not persuaded that there has been any new information that would allow
In determining whether a delay is sufftcient to invoke the doctrine of,laches or
undue delay, there must be acquiescence by the party seeking to enforce a
right and a change in position or detriment on the part of the other side. In this
case, the Union allowed some 30 months to elapse between the adjournment
and the next hearing date. During that time it took no steps to enforce its or
the grievor’s rights. In the interval, the one person who had direct knowledge
of the incidents giving rise to the allegations of incompetence expired. While
her supervisor was involved in the decision to terminate the grievor’s, services
based on her understanding of the grievor’s performance, it is clear that the
witness most able to present the employer’s case is not available. We are
satisfied that the elements of lathes have been established and it would be
unfair to allow this case to proceed to-a hearing in the circumstances.
The Union has asked this Board for a reconsideration of that decision based on what it 0
considers to be new information the Union did not have at the time of the March, 1997
hearing. During that hearing we were advised that neither the Union representative or
employer counsel had been at the 1994 hearing and that, as far as the Union could discern
from the file, the earlier hearing had been adjourned on consent. Ms. Kosmidis, counsel for
the employer, took the position that, while the adjournment was not contested, neither was -it
on consent. Since that hearing in 1997, the Union has ascertained that the adjournment was,
in fact done with the employer’s consent and that, it submits, should be a sufficient change in
circumstance to persuade this Board to reconvene the hearing and hear evideuce on the
merits. It also argued that there was no prejudice to the employer because the Union clearly
the hearing had been adjourned without objection and with an agreement to forego any
retroactivity. Knowing that the adjournment was on consent does not alter the fact that for at
least two years nothing was done to advance this grievance and no reasons were given to .
explain that delay. It was not any monetary prejudice to the employer that concerned us.
Rather it was the fact that the delay, in our view, prejudiced the employer’s ability to meet its
onus to prove just cause because of the death of its major witness.
Therefore, we are not convinced that this is an appropriate case for us to exercise our
discretion to reconsider our decision of July 9, 1997.
Dated at Toronto this 3rd day of February, 1999.
Loretta Mikus, Vice-Chair
.’ . pp
Michael Milich, Employer Nominee
(I concur)