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Home My WebLink About1993-1724.Longe.97-07-09 .. ..,-- [ ( '- ONrARIO EMPLOYES DE LA COURONNE r-"!- CROWN EMPLOYEES DE l'ONrARIO GRIEVANCE COMMISSION DE 1111 SETTLEMENT , REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO ON MSG 1Z8 TELEPHONErrELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TELECOPIE (416) 326-1396 GSB # 1724/93 CUPE # 9~-30 IN THE MATTER OF AN ARBITRATION Under THE CROWN ~MPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN CUPE 1750 (Longe) Grievor - and - The Crown in Right of ontario (Workers' Compensation Board) Employer , I BEFORE L Mikus vice-Chair J Carruthers Member M Milich Member "':";0.... FOR THE R Carnovale GRIEVOR CUPE National Representative FOR THE L Kosmidis \ EMPLOYER Counsel Workers' Compensation Board HEARING: March 5, 1997 I I I i F' ! ( The gnevor, gneves hIS unwarranted terrmnatIOn. The grIevance IS dated April 16, 1993 It was duly processed through the grIevance procedure and a hearIng date was ,set by the Grievance Settlement Board m 1994 At that heanng the Union adVIsed the Employer that It was unable,to proceed and the heanng was adjourned. Ms. Kosmlols, for the Mimstry, took the positIOn that, although the Employer dId not object to the adjournment, the hearIng was not adjourned on consent. In any event, no further steps were taken m respect of the grievance for two years and ten months, some four years after the terrmnatIon, when the Employer was adVIsed that a heanng was scheduled for March 5, 1997 The Mimstry took the pOSItion that the gnevance should be dIsmIssed because of delay and prejUdIce. It rehed on the following cases. Re Cybennedix Health Services Ltd, and Ontario Public Service Employees' Union, Local 544 (1990), 11 L.AC (4th) 334. (H.D Brown); Re Oil, Chemical & Atomic Workers, Local 9-672 and Dow Chemical of Canada Ltd. (1966), 18 L.AC 50 (H.W Arthurs), Re Abitibi-Price Inc. And United Paperworkers International Union, Local 1375 "::",,,- (1993),38 L.AC 59 (M. RennIe) and Re Cybennedix Health Services Ltd. and Ontario Public Service Employees Union, Local 544 (1992), 30 L.A.C 436 (P Haeflmg) Those cases stand for the propOSItIOn that the doctnne of laches can apply in the arbItratIOn context where there has been an unreasonable delay In proceSSIng a gnevance to arbItration and where that delay results m actual prejUdICe to the OppOSIte party 1 ~------ - ------ it: ... ( ( 2 In the mstant case, no reasons were advanced for the delay NeIther counsel, Ms. KosmIOIs nor Mr Carnivale, were mvolved m the proceedmgs m 1994 and attempted to reconst~ct the detaIls'of the preVIOUS hearIng from the notes m the file. According to Mr Caimvale, there vvas a notation In the I file that the Umon had agreed not to ask for retroactIvIty from the date of the delay Ms. KosmIoIs was unaware of any such agreement. In short, neIther party was In a pOSItion to explam the delay It was the contention of the Mimstry, however, that It would be unfaIr to ask them to proceed m the CIrcumstances. The gnevor was dIscharged from Ills pOSItIOn of VocatIOnal RehabIlItatIOn counsellor for poor work performance. The grievor's technIcal adVIsor, Ms. Bella Dumont, who was responsible for momtonng the gnevor's performance on an ongOIng basIS, died In May of 1995 She was the one who adVIsed her nnmedIate supeMSor, Ms. Wanda Chncton, of the gnevor's performance problems. WhIle Ms. Chncton IS available to testIfy, her eVIdenc;e WIll, of necessIty, -Involve the hearsay notes and comments of Ms. Dumont. Even if tlus Board were to accept that I eVIdence and gIve it the weIght the Mimstry would propose, It IS Incomplete. The Mimstry wIll not .,.~ be able to put on Its best case as a result} The onus on the Employer In this case IS heavy Due to the delay it does not have the WItness necessary to meet that onus. For those reasons, thIS gnevance, It submItted, should be dIsmIssed. Mr Carnovale, for the Umon, suggested that the parties pnor agreement to WaIve retroactIVIty for the penod following the adJourrlment In 1994 should relIeve against any concerns of prejUdICe raised by the Employer As well, to the extent that the Employer mIght rely on hearsay eVIdence, the Board has the authonty to admIt and conSIder that evidence m amvmg aUts deCISIon. Fmally, It was hIS -- ---- - -- --~-- ~ ~ ( 3 I posItIOn that the memos wnttento the gnevor about hIS performance were, not authored by Ms. Dumont but by Ms. Chncton, who IS present and can testIfy about those memos. In determInIng whether a delay IS suffiCIent to mvoke the doctnne of laches or undue delay, there must be acqUiescence by the party seeking to enforce a nght and a change m pOSItIon or detnment 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. Dunngthat tIme It took no steps to enforce Its or the gnevor's nghts. In the Interval, the one person who had direct knowledge of the mCIdents givmg nse to the allegatIOns of Incompetence expIred. While her supervIsor was involved In the deciSIOn to termmate the. grievor's servIces based on her understandmg of the gnevor'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 laches have been establIshed and it would be unfaIr to allow this case to proceed to a heanng In the CIrcumstances. ~ F or these reasons the gnevance IS dIsmIssed. I Signed this 9thday of July, 1997 d1 ~Lt;UCcfl "I Dissent" ~vUVu /lcJJM (without written reasons) Loretta Mikus MIchael MIlIch J Carruthers Vice-ChaIr Employer Nommee Umon Nommee