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Home My WebLink About1993-0136.O'Neill.94-04-16 ~ oJkiiO J#A G ~ EMPLOYES DE LA COURON"',s-" CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT ... REGLEMENT I BOARD DES GRIEFS " 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100. TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELECOPJE (416) 326-1396 136/93, 139/93, 800/93, 812/93, 826/93, 827/93, 828/93, 916/93, 985/93, 1045/93, l076/93, 2361/93, 2511/93, 2515/93 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (O'Neill et al) Grievor - and - The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: A. Barrett Vice-Chairperson I. J. Thomson Member M. Milich Member ) I FOR THE A. Ryder UNION Counsel Ryder Whitaker Wright f Barristers & Solicitors FOR THE M. Mously EMPLOYER Grievance Aministration Officer Ministry of Correctional Services HEARING July 5, ,1994 - ~ ~ --.... .: ~"7;: ._~-.-~~ ~ (; ( ,. "l.. ~ DEe I S ION ) This decision deals with a preliminary_objection brought by the employer concerning the arbitrability of 12 grievances of classified Correctional Officers at the Quinte Detention Centre ~ The grievors filed their grievances in March, 1993, alleging that they had been improperly credited with continuous service for the purpose of calculating their seniority dates when they were transferred to the classified service from the unclassified service, contrary to Article 25 of the collective agreement The grievors were all appointed to the classified service on different dates between 1978 and 1990 None complained about his or her continuous service date at the time they were appointed to the \ classified service However, in or about February~ 1993, a decision of a single member of this Board in an expedited arbitration case came to their attention The grievors felt that the decision could have effect on their continuous service dates and so they all grieved The employer objects that the grievances were not filed within the mandatory time limits contained in Article 27 of the collective agreement The union replies ~hat the grievors were not aware they had a grievance until they read the expedited arbitration decision, and they filed their grievances in(a timely manner once they read it That objection, in and of itself, must fail The employer has \ a more compelling objection, however, in that due to the ,delay it has destroyed all of the records which would be qecessary to defend - -- -- ---- - - ~-- -- -- --- - - I !!) (t;~1 ~,. " -.... 2 ./ the case The empfoyer calculated/continuous service dates for each gr ievor at the time he or she was appointed to the classified I I service to credit the amount of full-time work the grievors had performed in the unclassified service When making these calculations, the employer relied upon the scheduling and sign-in sheets and payroll documents These documents are destroyed every two years pursuant to Ministry policy 'I'he Superintendent of the institution, Mr Meyer, testified that when he became aware of the grievances, all such documents relating to these grievors had been destroyed The Ministry is now in a position where it cannot defend .., the continuous service dates it calculated based on its understanding of Article 25 of the collective agreement which was in force at the time the continuous service decisions were made The relevant por,tions of Article 25 1 are set out below \ I "ARTICLE 25 - SENIORITY (LENGTH OF CONTINUOUS SERVICE) 1 25 1 An employee's length of continuous service will accumulate upon completion of a probationary period of not more than one ( 1 ) year and shall commence (b) from the date on which an employee commences a period of unbroken, full-time service in the public service, immediately prior to appointment to the Classified Service, or 'Unbroken service' is that which is not interrupted by separation from the public service; 'full-time' is continuous employment as set out in the hours of work schedules for the appropriate classificationa, and 'part- time' is continuous employment in accordance .-. i .,- ,......-..:<' 0: C (, - " 3 F with the hours of work specifi-ed ln Article 61 1 " The employer takes the position that full-time service means 40 hours per week, as set out in Schedule 4 shat governs Correctional Officers' hours, or equivalent variable hours, <;is set out in a compressed work week agreement The employer's position is buttressed by two decisions of this Board which support, its ) interpretation of Article 25 Pitfield et al, GSB #2564/91 (Verity) , and Morton, GSB #2520/91 (Barrett), which upholds and follows Pitfield The union takes the position that full-time does not necessarily mean 40 hours a week, because Section 9(3)(a) of the Regulation to the Public Service Act permits a De~uty Minister to "designate any position in his ministry in a classification set out in Schedule 3 or 4 as a position whose duties requlre fewer o~ more hours of work per week than are prescribed for the classification by subsection (1) II The union argues that the hours can fluctuate for full-time employees as long as the employees do not fit within the definition of part-time employees contained in the collective agreement It is clear that these grievors were not regular part-time employees and therefore, says the unio,n, they must be full-time employees eyen though their hours fluctuated ) above and below 40 hours per week while employed in the unclassified service According to the union argument, the employer does not really need its records to respond to this - argument of the union Apparently the expedited arbitration ---- - -- - -- ~ ( , ( .: ., J 4 ~~ decision supports this argument (although we were not glven a copy of it) , but that decision has no precedential value pursuant to Article 27 18 8 of the collective agreement The employer representative quite rightly responds that if the case proceeds to a hearing, it would want to lead evidence to support its view that full-time means 40 hours per week and that the continuous .1 dates of the grievors correctly serVlce were calculated based on its understanding of the operation of Article 25 1 Without the evidence which has been destroyed, it cannot defend its calculations, nor respond to the grievors evidence as to the number of hours they worked in the unclassified service prior to becoming classified Employer counsel referred to three Grievance Settlement Board decisions where the doctrine of laches has been employed when real prejudice results to one party f~om a delay, even though mandatory time limits were not in issue (Boldt, GSB #221/90 (Verity) , Wilkins, GSB #538/90 ( Stewart) ; Viegas, GSB #384/88 (Devlin)) These cases hold that grievances may be dismissed for undue delay, in the discretion of the Board, I where, as a direct result of the delay one patty would be substantially prejudicetl in presenting its case due to such factors as lost documents, missing witnesses and hazy memories of \ I times long past \ In this case Mr Meyer testified that he always oversees the destruction of documents according to the prescribed schedule and that he himself accompanied the documents to the incinerator about I '- , r (e (:. ,~ t~-i{! (o',-~ 5 two years ago when the last batch was destroyed Storage space is \ at a premium, and he is always anxious to get rid of whatever documents he can pursuant to the retention schedule In cross- examination union counsel elicited the admission from Mr Meyer that he had not personally collected the documents for destruction \ - a senior clerk had done it, and that he had not searched the records himself to make sure that all of the needed documents were Ii actually destroyed In the absence of any evidence to the contrary, and relying upon Mr Meyer's assertion that he is sure \ all of the relevant records were destroyed, we accept that th/:3y have been destroyed We also accept the employer representative's submission that the employer would be seriously prejudiced by being required to defend this case without the n~cessary documents, and that a fair hearing could not ensue Accordingly, we dismiss these grievances / Dated at Tordnto this 16th day of August, 1994 ( ~~~--- A Barrett, Vice~Chairperson ( /, J ' -r- H (rI.v1 5" <,J .J I Thomson, Member , ~L~ ,tY - L ::t L..,_,_ - M Milich, Member~ '- --