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Home My WebLink About1993-1724.Longe.99-02-03 -~ -- - -- - ------------- ONTARIO EMPLOYES DE LA COURONNE , CROWN EMPLOYEES DE L'ONTARIO & Ii 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS t80 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G tZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G tZ8 FACS/MILE/TELECOPIE (416) 326-1396 GSB # 1724/93 CUPE 1750 - 93-30 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN CanadIan Umon of Pub he Employees Loeall750 (Wayne Longe) Grievor - and - The Crown m Right of Ontano (Workplace Safety & Insurance Board - formerly Workers' CompensatIOn Board) Employer BEFORE Loretta Mikus Vice-Chalf James Carruthers Member Michael MilIch Member FOR THE James K. McDonald GRIEVOR Counsel Sack Goldblatt Mitchell BarrIsters & SOlICItorS FOR THE ElIzabeth KosmIdis EMPLOYER SolICItor, Legal ServIces Branch Workplace Safety & Insurance Board EXECUTIVE October 16, 1998 SESSION it .A i On July 9, 1997 this Board dIsmIssed the gnevance 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 I In determImng whether a delay IS suffiCIent to invoke 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 tills case, the Uruon allowed some 30 months to elapse between the adjournment and the next heanng date. During that tlme It took no steps to enforce its or the gnevor's nghts. In the Interval, the one person who had dIrect knowledge of the incidents giving rise to the allegations of incompetence expued. WhIle her supervIsor was mvolved in the deCIsion to termmate the grievor's services based on her understandIng of the gnevor's performance, It is clear that the witness most able to present the employer's case IS not available Weare satisfied that the elements of laches have been established and It would be unfau to allow tills case to proceed to -a heanng m the CIrcumstances. The Umon has asked thIS Board for a reconsIderatIOn of that declSlon based on what It 0 conSIders to be new InfOrmatIOn the Umon did not have at the tlme ofthe March, 1997 hearmg. Dunng that hearmg we were adVIsed that neIther the Umon representative or employer counsel had been at the 1994 hearing and that, as far as the Umon could discern from the file, the earlIer hearmg had been adjourned on consent. Ms. KosmIdls, 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 Dmon has ascertaIned that the adjournment was, In fact done WIth the employer's consent and that, it submits, should be a suffiCIent change m I CIrcumstance to persuade this Board to reconvene the hearIng and hear eVIdence on the merits. It also argued that there was no prejudice to the employer because the Union clearly abandoned any retroactIvIty to obtaIn that adjournment. With respect, we are not persuaded that there has been any new InfOrmatIOn that would allow us to reconSIder our earher deCIsion. At the hearIng In March of 1997, we were satIsfied that -. - ~ iJ " the heanng 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 nothmg was done to advance thIS gnevance and no reasons were given to explam that delay It was not any monetary prejudice to the employer that concerned us. Rather it Was the fact that the delay, m 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 convmced that tills IS an appropnate case for us to exerCIse our discretIon to reconsider our deCision of July 9, 1997 Dated at Toronto thIS 3rd day of February, 1999 ~ )u/~~ Loretta Mikus, Vice-Chair ~ ames Carruthers, Union Nommee (I dIssent) , AC~~e~ (I concur)