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HomeMy WebLinkAbout1998.0949.Reid.00-01-20 Decision o NTARlO EMPUJYES DE LA COURONNE CROW"! EMPLOYEES DE L 'ONTARlO GRIEVANCE COMMISSION DE .. SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONBTELEPHON~ (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G 128 FACSIMILBTELECOPIE. (416) 326-1396 GSB # 949/98 951/98 OLBEU # OLB347/97 OLB 306/97 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BElWEEN Ontano LIquor Boards Emplovees Umon (ReId, Paulos) Grievor - and - The Crown 111 Right of Ontano (LIquor Control Board of Ontano) Employer BEFORE Loretta Mikus Vice Charr FOR THE Juha Noble GRIEVOR Legal Counsel Ontano LIquor Boards Emplovees Umon FOR THE Ahson Renton EMPLOYER Counsel, Legal ServIces LIquor Control Board of Ontano HEARING June 23 1999 September 17 1999 2 Tills gnevance concerns a Job compeTITIon dated August 5 1997 for seven full TIme Customer ServIce RepresentaTIve pOSITIOnS, Tills award deals With the prehmInary objecTIon of the LCBO to the IntroducTIon of the Umon-s argument that the Employer IS estopped from changmg ItS pracTIce regarding the placement of part TIme employees Into full TIme pOSITIOnS, The vacanCIes arose out of a newly negoTIated Job vacancy reVIew that estabhshed the need to convert part TIme pOSITIOn Into addiTIonal full TIme pOSITIOnS, In thIs case, thIrty-five employees apphed for the seven pOSITIOnS, and tillrteen were IntervIewed, The decIsIon as to who should be IntervIewed was made on the basIs of the candIdates- semonty last two performance appraisals, disCIplInary record and compleTIon of the Product Knowledge Level II course The performance appraisals were gIven numencal values and scored agaInst a total of 40% of the final mark. The IntervIews were valued at 60% of the final mark and candIdates were consIdered for Jobs based on a combInaTIon of those two factors, From those totals was calculated a relaTIve equalIty range that determIned the candIdate-s final placement on the chart of those to be offered a posItIOn, The heanng Into thIs matter commenced on June 23 1999 Pnor to the heanng the partIes had exchanged partIculars concernIng the factual and legal underpInmngs of theIr cases, Dunng thIs TIme the Umon did not raIse any argument regarding estoppel. The Umon, In another case before me concermng the same form of Job compeTITIon In another regIOn, raIsed m final argument the Issue of estoppel, willch It later abandoned, As a result of the Umon-s conduct In that case the Employer sought and obtaIned from the Umon an assurance that It did not Intend to raIse an estoppel argument In the Instant case, Two weeks later It receIved a letter from Umon counsel adVISIng It that the Umon would, m fact, be raISIng an estoppel argument at the commencement of the next day of heanng, whIch was September 17 1999 The LCBO took the pOSITIOn that It was too late In the process to raise a new legal argument. The Job compeTITIons were not done In secret. The Umon knew that the Employer Intended to Introduce a compeTITIon process In awarding these Jobs, At no TIme dunng the gnevance procedure did the Umon raIse any objeCTIon to the IntrodUCTIon of the new process, In the alternatIve, It was contended that the Umon 3 was attempTIng to alter or expand the grounds of the ongInal gnevances, The estoppel argument of the Umon IS not mherent In the ongInal gnevances and IS substantIally distInct from the ongInal gnevances that would reqUIre addiTIonal and disTInct eVIdence, Finally It was argued that the LCBO will be prejudiced If the Umon IS allowed to proceed, The Board has heard eVIdence from two of the gnevors and the LCBO has lost ItS opportumty to cross-examIne those wItnesses WIth respect to estoppel The Employer asked thIS Board to dismIss the Umon-s motIOn to proceed on ItS estoppel argument. The Umon took the pOSITIOn that the Umon should be allowed to raise ItS estoppel argument for several reasons, In the first Instance, there will be no prejudice to the Employer If the Board should rule In the Umon-s favour The first day ofheanng was June 23 1999 and the gnevor John Paulos was called as a Witness, At the commencement of the heanng on September 17 1999 the Umon raised ItS request to be allowed to advance ItS estoppel argument about. The gnevor Leshe ReId was then called as a wItness, Without objecTIon from the Employer It was agreed at the TIme that the Gnevance Officer for the Umon, Jean ChaykowskI, would not be called as a Witness because her eVIdence would relate, In part, to the estoppel Issue The two gnevors who have tesTIfied would have httle If any knowledge of or eVIdence relaTIng to the Issue of estoppel If, however the Employer does want to queSTIon them about the past practIce, they can be recalled to the stand, The Employer will have suffered no prejudice WIth respect to the heanng ItSelf. The Employer has not yet opened ItS case and, It was submItted, It IS through them that the eVIdence regarding the Issue of estoppel Will be found, The Umon asserted that It IS enTItled to raIse any relevant arguments In the presentaTIon of ItS case, partIcularly techmcallegal arguments that may not have ansen In the early stages of the gnevance procedure because of the absence of legal counsel at those stages, If the Employer takes the pOSITIOn It has been unfairly surpnsed by the IntroducTIon of tills new argument, the appropnate remedy IS an adjournment to allow It TIme to prepare to meet the umon-s case In the Instant case, the Employer can hardly argue that It has not had sufficIent TIme to prepare The next heanng date IS February 9 2000 The Employer has had 4 four months to prepare Its Witnesses and gather the eVIdence It reqUIres to meet the Umon-s case The Umon took the posItIOn that the estoppel IS an eqUItable doctnne that IS apphed to recTIfy an unfaIr sItuaTIOn In wmch one party acts to ItS detnment because of ItS rehance on the other party-s representaTIons, It IS not, In and of ItSelf, a gnevance, RaISIng It at thIs stage of the process cannot be charactenzed as the IntroducTIon of a new gnevance or an expanSIOn of an eXISTIng gnevance HavIng consIdered the submIssIon of the partIes I have concluded that the Umon-s mOTIon to Include ItS estoppel argument should be allowed, There will be no prejudice to the Employer If I allow thIs mOTIon, The Umon-s two Witnesses are available to be recalled If the Employer beheves theIr eVIdence will be necessary The Umon-s major Witnesses on thIs Issue have not yet tesTIfied and the Employer will have ample opportumty to cross-examIne them after theIr eVIdence In cmef. The Umon has gIven the Employer sufficIent nOTIce to overcome any surpnse that lll1ght have resulted from ItS mtroducTIon at thIs stage of the proceedings, The Umon-s mOTIon IS therefore granted and It may Introduce, at the next day of heanng, ItS eVIdence regarding the Issue of estoppel. However to be clear tms deCISIOn only apphes to the Umon-s request to Include the Issue of estoppel In ItS case agaInst the LCBO Whether an estoppel eXIsts remaIns to be determIned once the eVIdence and submIssIOns of the partIes have been concluded, SIgned thIS 20th day of January 2000 Loretta Mikus, Vice-Chair