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Home My WebLink About1997-0988MAGHSOUDI99_03_22 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600, TORONTO ON M5G tZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 1Z8 FACS/MILE/TELEcOPIE (416) 326-13S/6 GSB # 0988/97 OPSEU # 97B760 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Uillon (Akbar Maghsoudl) Grievor - and - The Crown m RIght of OntarlO (Mmlstry of TransportatlOn) Emplover BEFORE D.J.D LeIghton V lce-Chmr FOR THE DaVId Wnght GRIEVOR Counsel, Ryder Wnght Blmr & Doyle Barnsters & SolICItors , FOR THE Lucy Slraco ! 1 EMPLOYER Counsel, Legal ServIces Branch i I Management Board Secretanat I I I I I HEARING Januarv 20, 1999 Wntten SubmlsslOn receIved February 22, 1999 I , I I I I 1. t I , ! t I ~ PRELIMINARY DECISION Mr Akbar MaghsoudI was a Semor Research TechmcIan 5 at the MImstry of TransportatIOn when hIS posItIOn was declared surplus on July 2, 1997 There are two gnevances before the Board The first, filed on July 3, 1997, alleges that the decIsIOn to declare hIm surplus was a vIOlatIOn of Articles 3 and 20 of the collective agreement, that the surplus decIsIon amounts to dIscnmmatIOn on the basIs of race and umon activIty It IS the Umon's posItIOn that the surplus notice IS a culmmatmg mCIdent m a pattern of dIscnmmatIOn agamst the Gnevor that began m 1979 The U mon asserts that had Mr MaghsoudI been placed m a posItIOn of Semor Systems Analyst, whIch he was promIsed m 1995, he wQuld not have been surplused The second gnevance, filed on July 15, 1997, alleges vIOlatIOns of ArtIcle 20 of the collectIve agreement and seeks the remedy of bumpmg mto the Tech 5 PhYSIcal Lab classIficatIOn ThIS decIsIOn addresses the Employer's prelImmary motion to dIsmIss the first gnevance on the basIs that the gnevance IS not tImely, the Board has no JunsdIctIOn to reVIew the enforceabIlIty of an alleged promIsed new posItIOn promotion, and estoppel bars the Board from heanng the gnevance Counsel reserved her nght to argue that the gnevance was essentIally a classIficatIOn gnevance at the close of the heanng THE EMPLOYER'S SUBMISSION - Employer Counsel argued that Mr MaghsoudI should not be permItted to gneve about events m three time penods smce 1979 Events from 1979 until 1988 are not gnevable smce a decIsIOn of the Ontano PublIc ServIce Labour RelatIOns Tnbunal m 1988 dIsmIssed the Gnevor's complamts agamst the 2 Employer and the Dmon because of delay of one year m bnngmg them Counsel submItted that the Dmon should be estopped from re-lltlgatmg events whIch happened m thIS tlme penod The Issues and the partIes are the same Counsel also submItted that a faIr heanng mto events dunng thIS penod IS not possIble because of the delay The second penod of tlme IS from 1989 to 1993 In 1993 the Gnevor complamed of dlscnmmatlOn to the MmIster Seventeen allegatlOns were subsequently mvestlgated through the Workplace DlscnmmatlOn and Harassment PolIcy process Two allegatlOns were substantlated whIch had to do wIth bemg gIVen credIt for work done and ensunng that a performance appraIsal was mcluded m the Gnevor's personnel file The mvestlgator found no eVIdence of dIscnmmatlOn Counsel for the Employer argued that the Gnevor should not be allowed to complam about the events mvestlgated under the WHDP If he had a complamt about the result of the mvestlgatlOn, he should have made It m 1993 Not only IS the gnevance as It pertams to these events not tlmely, but the delay means that a faIr heanng IS not possIble Counsel contended that some of the allegatlons relate to people that are no longer m the government. the Employer IS prejudIced by the delay The thIrd penod of tlme IS between 1993 and 1995, and mvolves an alleged promIse to the Gnevor by Mr Ken Knox, ASSIstant Deputy Mmlster, that the Gnevor would be put m a semor posltlon Counsel argued that the partles are at Issue as to whether such a promIse had been made, but even If It was made m 1995, the Gnevor should have complamed that the promIse had not been kept m 1995 Counsel submItted that no reason had been gIven for the delay If the Board deCIdes to hear the case, only eVIdence after August 1995 should be admItted Counsel made a substantIal argument at the heanng and by wntten submIsslOn that reVIew by thIS Board of an alleged breach of such a promIse IS not arbItrable Such a promIse vlOlates the collectlve agreement Counsel 3 I contented that thIS Board could not order that the Gnevor be put m the promIsed posItIOn Counsel cIted McGavm Toastmaster [1975] 54 D L R (3d) 1 (8 C C ), Re Canadmnoxv ChemIcals (1992) 32 L.A.C (4~ 432 and College of Cape Breton (1998) (unreported decIsIOn of N 8 8 C ) m support of her argumen t. Counsel argued that the "Artlcle 20" gnevance should also be dIsmIssed smce the basIs of the complamt seemed to be that there was no shortage of work. It was her submIssIon that the Employer had the nght to reorgaillze the workplace and to decIde to abolIsh posItIOns WIthout an allegatIOn of bad fmth, the Board had no JunsdIctIOn to hear the gnevance THE UNION'S SUBMISSION Dillon Counsel submItted that the Gnevor's surplus notlce was a culmmatmg mCIdent m a pattern of dIscnmmatIOn stretchmg back to when It started m 1979 Counsel conceded that the Dillon was not seekmg remedIes for the dIscnmmatIOn back to 1979 The remedy sought IS for the surplus notlce and IS, therefore, tlmely Counsel contended that the Dillon must be permItted to adduce eVIdence of the pattern of dIscnmmatIOn WhICh occurred on an ongomg baSIS from 1979 untll the surplus notlce of June 1997 Counsel cIted MIrosolm (1991) 2054/90 (Venty) and DanelIuk (1994) 220/93 m support of hIS argument. Counsel argued further that the doctnne of laches may be conSIdered If the eVIdence at the hearmg shows that the employer has been prejudIced by the delay, but It should not be conSIdered now Counsel argued that Issue estoppel does not apply here 8mce there IS no remedy bemg sought for the events from 1979 to 1988 WhICh were before the Labour RelatIOns Tnbunal, the eVIdence of events dunng thIS penod must 4 ! be admItted Further, Counsel argued that wIth regard to bemg put m the posItIOn of Semor Systems Analyst, the Gnevor was pursumg mformal methods of enforcmg the promIse It was not untIl he got the surplus notIce that he realIzed clearly that the Employer was not gomg to act on It Postponement here relates to the remedy only Smce the surplus was wrong, the gnevance IS tImely Counsel mamtamed Counsel argued m response to the Employer's argument that the alleged promIse was not enforceable, that the demal of the promIse was part of the pattern of dIscnmmatIOn Counsel argued further that an oral promIse to a gnevor, outSIde the scope of the collectIve agreement, can be enforced He cIted the DIVISIOnal Court's deCISIOn revIewmg Northover (1992) 2279/92 Baars (1990 457/90 (Stewart) m support of hIS argument Further, ArtIcle A gIVes the Board JunsdIctIOn where It mIght otherwIse have no power to reVIew the Gnevor's complamt. Kozak (1994) 406/93 Counsel argued m conclUSIOn that the Gnevor's complamt IS that hIS surplus occurred as a last act of dIscnmmatIOn m a pattern that began m 1979 The surplus gnevance IS not a separate complamt to the Gnevor's dIscnmmatIOn gnevance DECISION GIven that the Gnevor's allegatIOn IS that hIS surplus notIce of June 25, 1997, effectIve July 2, 1997, was the last act of dIscnmmatIOn by the Employer m a pattern of dIscnmmatIOn that began m 1979, the gnevance filed on July 3, 1997 IS tImely The Dmon acknowledged that It IS not seekmg remedIes for the dIscnmmatIon back to 1979 The remedy sought IS for dIscnmmatory surplus The estoppel argument falls to bar the gnevance for SImIlar reasons The Dmon IS not seekmg a remedy for alleged dIscnmmatIOn dunng thIS penod 5 I The eVIdence of the penod of time between 1979 and 1988, whIch was before the Labour RelatIOns Tnbunal, IS properly admIssIble to prove the alleged pattern of dlscnmmatIOn The argument that the gnevance should be barred as It relates to events between 1988 and 1993, mvestlgated under the WDHP process, also falls smce no remedy IS bemg sought for any dlscnmmatIOn dunng thIS penod that the Board mIght find Agam, the eVIdence must be permItted to show the alleged pattern of dlscnmmatIOn Employer Counsel also argued that the Employer would be prejudIced m defendmg a dlscnmmatIOn gnevance where eVIdence of events to support the gnevance went back to 1979 ThIs argument IS premature Since no eVidence of prejUdICe has been called I am not m a posItIOn to decIde thIS Issue now However, the Employer may raise thIS ObjectIOn at the conclUSIOn of the heanng The Employer's argument that an alleged promIse to the gnevor to put hIm m the pOSItion of Semor Systems Analyst IS unenforceable as an agreement made outSIde the collective agreement IS also premature I have summanzed the parties substantial argument on thIS pomt m outlme only, because of my deCISIon that It would be premature to deCIde the Issue Counsel for the Umon takes the pOSItion that the alleged promise and the failure to meet the promIse IS part of the pattern of dlscnmmatIOn, so the eVIdence of the promIse must be admItted There IS an Issue between the partIes as to whether the promIse was even made For these reasons I have deCided to reserve my deCISIOn on thIS Issue In conclUSIOn I am persuaded that the gnevance IS timely and there IS no reason that eVIdence should be restncted to after August 1995 The Employer's prelImmary motIOn to dIsmISS the gnevance IS demed 6 Dated at Toronto thIS 22nd day of March, 1999 ~~ 7