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HomeMy WebLinkAbout1992-1721.Thompson.95-01-24 .. ~ ~ { ( ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE CpMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO. ONTARIO. M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2700 TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELECOPIE (416) 326-1396 GSB# 1721/92 OLBEU# OLB129/<)2 IN THE MATTER OF AN ARBITRATION Under '!'BE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Thompson) '\ l Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE: R. J. Roberts vice-Chairperson' S. Urbain Member F. Collict Member FOR THE J Noble UNION Counsel ontario Liquor Boards Employees Union FOR THE D. Mombourquette EMPLOYER Counsel Liquor Control Board of Ontario EARING November 15, 1994 ,- ~- .. I '< ( \ 2 INTERIM AWARD At the outset of the heanng m this matter, counsel for the Employer objected to junsdiction The basis \ for this ObjectIOn was that pursuant to a polIcy of the Gnevance Settlement Board the gnevance at hand had been terminated It was' further submItted that If, m 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 follow j the prelImmary objection IS dIsmissed. In the course of argument upon the prelimmary objectIOn, counsel referred to the followmg senes of events involvmg the present case. On February 15, 1994 Owen B Shime, the Chairperson of the Grievance Settlement Board, issued a memorandum to a number of UnIons and Employers, mcluding the Union herein, that mcorporated by reference the latest copy of the Board's Adjournment/Inactive List. This list set forth a number of cases that had been adjourned, mcludmg the present case. The date of adjournment for the present case was " identified as January 19, 1993 The memorandum from the ChaIrperson stated, m pertment part: THE ADJOURNMENT/INACTIVE LIST NOTICE. ThIS lIst con tams cases that have been scheduled for hearIng and have been adjourned at the request of the partIes. The lIst WIll be published 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 mactIve lIst and eIther party may do so by advlSlng the Board m wntmg of theIr deSIre to activate the file for eIther pre-hearing or heanng m the case may be, or to have the case remain on the list pendmg the outcome of another 'matter Requests to activate must be made wIthm a year from the date that the case appears on the mactIve lIst. Essentially, the recipIents of the memorandum were notified that It was theIr responsibIlIty to I 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 proceedmgs would be deemed termmated On AprilS, 1994, the UOlon herem identified in writing to the RegIstrar of the Grievance \ I Settlement Board a number of cases from the Adjournment/Inactive List that It WIshed to remam actIve. The case at hand was not among them - ) ~ I On May 2, 1994, the Registrar wrote, inter a!ia, to the Union at hand, advising that a ~ number of cases from the Inactive LIst had been termmated The case at hand was mcluded ~ among them Interestingly, the May 2, 1994 memorandum from the Registrar stated that the termination of the cases was being effected n[i]n accordance WIth Mr Shime's letter of September 13, 1991 n When a copy of thIS letter was requested by the UOlon, the letter could not be found In its place, the Board sent the UOlon a copy of a memorandum from Mr Shime dated November 19, 1990 that stated, m pertment part. . 1 I , \ \ 4 On July 5, 1989, we wrote you concermng a new procedure involvmg an adjournmenthnactIve lIst. At that time It was noted that unless eIther party to the proceedmgs req~ests that the cases remam 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 commumcation to the parties I This was essentially the same notIce as appeared 10 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 th~ case at hand and have it scheduled for an arbItratIon heanng By letter dated June 22, 1994, the Employer \ confirmed to the Registrar Its position that per 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- Umon of August 9, 1994 This did not, however, end the matter On October 25, 1994, Owen B ShIme, the Chairperson of the Gnevance Settlement Board, sent a letter to Mr John Coones, the PreSIdent of the Umon, agreemg to hold on the Adjournment/Inactive LISt" all OntarIO Liquor Boards Emplpyees Umonfiles on the August 25, 1994 List." A copy of thIS lIst was appendedl to the letter Included among the cases on thIS lIst was the case at hand The entry for thIS case < , mdicated that It had been adjourned on August 9, 1994 for the purpose of rescheduling a ( . 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. The Union on the other hand submItted that we dId have dIscretlon to rem state and that it would be unfaIr to the gnevor and a windfall gain to the Employer to refuse to reihstate this case. It was further submitted that the case was, in fact, reinstated by the actions of Mr Shime 10 hIS letter to the U mon dated October 25, 1994 In connectIon with these submISSIons, we were referred to Re Brand and Mimstry of Correctlonal 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, reac t i va t ~ d by the ac t ion ofH'r_ Shfme in his lett,er dated October 25, 1994 ThIS letter mdIcated that the case had been adjourned on August 9, 1994 for the purpose of reschedulIng a heanng Counsel for the Employer suggested that the ChaIrperson might have taken thIS action for the sole purpose of permItt10g the JunsdictIOnal questIOn to be placed before a panel There IS, however, no evidence to support such a narrow InterpretatIOn , " - \ " 6 of the ChaIrperson's intent. It was stated m the entry for thIS case that It was adjourned on August 9, 1994 for the purpose of reschedulmg a heanng There was nothmg to mdIcate that the hearmg was to be lImIted in any way ! The prelImmary ObjectIOn IS dIsmIssed and the RegIstrar IS dIrected to schedule this case for a hearmg upon the ments at the earlIest convemence of the Gnevance Settlement Board. I DATED at London, Ontano thIS 24th day of January, 1 qq5 , UJr-tlVr- '-(d - -~ _./ . <:Lr- .l"..,-1............_ S Urbain, Umon Member Cd -J' ~