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HomeMy WebLinkAbout1993-0279.Wilson.94-09-14 ~- ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L 'ON TA RIO 1111 GRIEVANCE COMMISSION 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 2'00, TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELECOPIE (416) 326-1396 279/93 ( IN THE MATTER OF AN ARBITRATION L Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Betore THE GRIEVANCE SETTLEMENT BOARD ( BETWEEN OPSEU (Wilson) I Grievor - and - I The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE R Roberts Vice-Chairperson M Vorster Member D. Montrose Member FOR THE K Whitaker GRIEVOR Counsel Ryder Whitaker Wright Barristers & Solicitors FOR THE M Fleishman :- EMPLOYER Law Officer Crown Law Office civil Ministry of the Attorney General HEARING June 21, 1994 July 5, 1994 " - - - I ( ( INTERIM AWARD , I At the outset of the heanng In thIS matter, counsel for the Employer raIsed a prelImInary "- objection to JunsdIctIon ThIS objectIon was based pnmanly upon the assertIon that In December, 1989, when the gnever was dIsmIssed, he may have been a Crown employee but he I was not a public servant within thr bargaIning UnIt, and hence, could not have a gnevance processed on his behalf by the Union In thIS regard, reference was made to Re Blake and Toronto Area TranSIt Operating Authonty (1988), G S B Nos 1276/87 et a1 (ShIme), Re Ally and Ministry of Labour (1991), G S B No 1036/90 (Kaplan), Re Harrison/Leach and MInistry ~ of CorrectIonal ServIces (1992), G S N Nos 2551/91 & 2656/91 (Watters) The preliminary objection also was based upon a claIm of laches, In that the gnevance I leading to this arbitratIon was not filed untIl January 13, 1993, some three years after the alleged dismissal It was claImed on behalf of the Employer that the extraordinary length of thIS delay was, without more, unreasonable, unfaIr and pre] UdICIaI to the Employer \ I For reasons whIch follow, we have decIded that because of the complex nature of the I circumstances leadIng to thIS gnevance, It would be premature for us to rule at thIS tIme upon eIther of these preliminary objections. We have decIded to postpone our ruling until we are better informed regardIng all relevant CIrcumstances We antICIpate that we WIll acqUIre the necessary information in the course of heanng eVidence upon the ments of thIS grievance, and \ - ( ( ....!-: 2 as a result it would be more appropnate to rule upon the prelIm1l1ary ObjectIOn at the conclusion of such a heanng Accordingly, the RegIstrar of the Gnevance Settlement Board is hereby dIrected to set down further dates for hearing 111 thIS matter I \ II Neither party led evidence WIth respect to the matters raIsed 111 the preliminary objectIon I of the Employer Rather, a bnef synopsIs of the relevant facts was mady by counsel for the Union for purposes of assistmg the Board 111 understand1l1g the context 111 WhICh the gnevance arose. According thIS synopsis, the gnevor was a Court Reporter He began workmg m the Hamilton Court Office 111 February, 1981. At that tIme, thIS offi<::e employed both cla~sIfied Court Reporters and Fee-For-Service Court Reporters The grievor was among the latter group Up until hiS discharge on December 22, 1989, the gnevor worked with few exceptIOns on a full-time baSIS, five days per week. He was paId for the hours that he worked and also receIved a fee per page for transcnpts that were ordered from hIm When he was reqUired to travel JI1 the perfortnance of hIS dutIes, he was paid a mileage allowance and received a per diem allowance for meals In all these respects, according to the synopsis presented by counsel, the dutIes of the gnevor were identical to those performed by the classIfied Court Reporters. \ ,- --- (~ (- , 3 ( Dunng the course of the gnevor's employment, several Important matters relating to the status of Fee-For-Service Court Reporters were being brought to and decided by the Ontario PublIc Service Labour Relations Tribunal On or about November 28, 19 84,OPSEU, the Umon ) herein, applied to the Tribunal for a determination whether Fee-For-ServIce Court Reporters ( were employees within the meamng of then SectIOn 1(1)(0 of the Crown Employees Collective Bargaining Act. On Apnl4, 19 86 ,the Ontano Umon of Court Reporters filed an applIcatIon before the v Tribunal in which it sought to obtain bargammg nghts for Fee-For-Service Court Reporters Because thiS application apparently was filed before any formal heanng In the application by ) OPSEU, the two applicatIOns were consolIdated by the Tnbunal ) On September 20, 1988, the TnbunalIssued a deCISIon solely addressmg the employee / status of Fee-For-Servlce Court Reporters The Tnbunal concluded that It was "satisfied on the baSIS of the evidence that each of the groups of freelance Court Reporters m dispute are employees Within the meamng of C E.C B A " Re Ontano Public Service Employees Umon and Ministry of the Attorney General (1988), Labour RelatIOns Tnbunal Nos T/0064/84 & I T/OOI8/86, at 17 (Pamela Picher) This determmatlOn did not serve to settle the dispute between OPSEU and the Ontario Umon of Court Reporters regardmg representatIon nghts Under then s 11 of Regulation 232 of C E.C B A , OPSEU was deSIgnated as the employee orgamz~tlOn havmg representation \ I - ( - ( \~v',~:'';- 4 rights, inter alia, for all "public servants" who were Crown employees Apparently, the two ) Unions were unable to determine between themselves whether Fee-For-ServIce Court Reporters _J were, In addition to theIr status as Crown employees, "publIc servants" for whom OPSEU had automatIc representatIon nghts. ~ Accordingly, the two Unions returned to the Labour RelatIOns Tribunal for determmatIOn of thIS Issue The Tribunal held a hearing mto thIs matter on October 16, 1989 and later entertamed supplementary wntten decIsIOns that were submItted 10 late October and early November, 1989 The decision of the Tribunal, however, dId not Issue until September 17, 1990 See Re Ontario Public Service Employees Union and Ministry, of the Attorney General (1990) Labour RelatIons Tribunal Nos T/14/89 et al (Pamela Plcher) The Tnbunal concluded "that the freelance Court Reporters. are public servants and fall wlthm [OPSEU's] bargaining unit." , Id. at 97 / As can be seen, thIS senesof events bracketed the termmatlOn date of the gnevor I Before the gnevor was term mated on December 22, 1989, he and other Fee-For-ServIce Court Reports had been determmed to be Crown employees, however, It was not untIl September 17, I 1990, some nine months after the gnevor's dIscharge, that he and other Fee-For-Servlce Court \ Reporters were determmed to be publIc servants for whom OPSEU had automatic representation , rights. - - : I ( \. , , - 5 We were informed by counsel that smce the date of Issue of the September 17, 1990 decision by the Tribunal, negotiations have been on-goIng between the Union and the Employer regarding the overall Issue of retroactIvIty of these decIsIons We also were mformed that I recently, the negotIations had broken down and that It was possIble that either the Employer or the Umon would bnng an applIcatIOn to the Tnbunal or ItS successor, the Gntano Labour Relations Board, to determme the questIOn of retroactIvIty of the status of Fee-For-ServIce Court Reporters as both employees and publIc servants ( III In" the course of heanng the submIsSIons of counsel upon the preliminary objections to jurisdiction, it) became apparent to the Board that our decISIon likely would hinge upon the degree of retroaCtIVIty, If any, to be accorded OPSEU's representatIon nghts, whIch are denved from an employee's status as a publIc servant In thIS regard, we note that both parties agreed that under Blake, Ally and HarrIson/Leach, supra, only the Umon and not IndIVIdual employees, possesses the power to bnng a matter to arbItratIOn before the Gnevance Settlement Board The threshold question for our determinatIOn then becomes whether the representatIon nghts of the Umon should be accorded suffiCIent retroactivity m thIS case to permit it to bnng ) to arbitration the claIm of the gnevor that he was dIscharged WIthout Just cause? If It IS concluded that thIS degree of retroactIVIty should be accorded the Umon's representatIon nghts, the next questIon becomes whether, regardless of the eXIstence of the power of the Umon to J - - I- ( ) 6 I bnng hIS grievance to arbItratIOn, the gnevor delayed too long before filmg hIS gnevance? ThIs \ second question mIght be lInked at least m part, to the degree to WhICh the gnevor mIght have been induced to delay filing his gnevance pending the outcome of the negotIatIOns between the parties th~t succeeded the deCISion of the Tnbunal of September 17, 1990 ThiS, of course, relates to the Issue of laches It seems to us that m several respects, the questIOn of the retroactivity of the Union's right to bring thIS matter to arbItratIon and the questIOn whether the gnev(j.nce m any event is } barred for undue delay under the doctnne of laches must be deCided upon s,ImIlar cntena. In the context of the present case, both Issues address at heart the ques~IOn whether the Board' I J should proceed to decide the merIts of the grievance ThIS determmatlon WIll depend upon our assessment of th,e following critena. (1) the heed of each party for certamty, repose, and economy of effort and expense. See Re GoverOlng CounCil of the Umverslty of Toronto and, Service Employees Union. Local 204 (1975), 10 L.A C (2d) 417, at 432, (2) the need to prevent abuse of the gnevance procedure by usmg It for purposes of harassment etc. See id. at 432-33, (3) Any acqUIescence m the status quo ante servmg to create an estoppel agamst either party i See, e.g , ReParkmg Authonty of Toronto and Canadian UOlon of PublIc Employees. Local 43 (1974),5 LAC (2d) 150, at 156-57 (Adell), Re ottawa Board of EducatIOn and CanadIan Umon of PublIc Employees. Local 1400 (1990), 13 LAC 4th 170, at 179 (Brown), (4) the unaVaIlabIlity of key witnesses due to the passage of tIme See Re Woods and Ministry of Transportation and CommUnICatIOns (1980), G S B No 224/79, at 4-5 (Swmton), and, - \i 9) I L \- 7 I (5) the clouding of memones due; once agam, to the passage of time See Woods supra. I I Of course, these mdIvIdual cntena might apply with different force to the issues of retroactIvIty and laches to be decIded m the present case There may also be other applicable critena, this list should not be considered as exhaustive Note, for example, our previOus reference to the possibility that the delay m filmg the gnevance herem may have been lInked to the on-gomg nature of the negotiations between the parties regardll1g implementatIOn of the September 17, 1990 decision of the Tnbunal At the moment, we do not belIeve that we have sufficient mformatIOn touchmg upon these cnteria to enable us to make a deCISIOn upon the two grounds of prelimmary objectIOn that were advanced by counsel for the Employer In lIght of thiS, we have decided to reserve our decision upon these issues untIl the completIOn of the heanng of eVIdence on the merits. It is our view that the evidence gIven at thiS heanng WIll shed the necessary light upon the issues raised 111 the preliminary objection and we will be 111 a position to rule at that tIme. See Re Hughes and Mimstry of Labour (1993) G S B No 172/92 (Barrett) The matter IS remItted to the partIes and the RegIstrar is hereby dIrected to set down dates for a cont1l1uatlon of the heanng m thiS matter ~ ~ ....~ ( c I 'I)) 8 DATED at London, Ontano, thIS 14th day of ~eptember, 1994. 1994 bfff ) ,~----- R J Roberts, Chairperson f I concur/dIssent ~ M Vorster, Umon Member -=- \ c~~....,... ~. - . I cone/dissent J o Montrose, Employer Member I )