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HomeMy WebLinkAbout1992-0347.Massey.94-07-21 - \ , (, ONTARIO EMPLOYES DE LA COURONNE .",.~'j:-. CROWN EMPLOYEES DEL 'ONTARIO 1111 GRIEVANCE CpMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIP, M5G 7Z8 TELEPHONEITEL~PHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) M5G lZ8 FACSIMILE ITELECOPIE (416) 326-1396 347/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OLBEU (Massey) - Grievor - and - The Crown in Right of Ontario (Liquor Control Board of ontario) Employer BEFORE R Roberts Vice-Chairperson J. Carruthers Member ./ M. Milich Member I, FOR THE R. Davis ) Counsel \ GRIEVOR Koskie & Minsky Barristers & Solicitors FOR THE D. Mombourquette EMPLOYER Counsel Liquor Control Board of ontario HEARING June 1 & 7, 1994 J ! -~-:-.T-';-:"'_. ~ \ ( j' 2 INTERIM AWARD I \ At the outset of the hearing in this matter counsel for the Employer raIsed a prelImmary \ objection to JurisdictIon The grounds for this objectIon were that the gnevance was out of tIme because it was filed some 20 months after the grievor became aware of the events giving rise to the gnevance Essentially, the Employer took the position \that the gnevor became aware m May, 1990 that a C Store Manager posting for which he had applied in January, 1990, had been , filled by lateral transfer Because the gnevance was not filed untIl January, 1992, counsel for the Employer submItted, the gnevance was stale and out of tIme. Counsel for the Union, however, dIsputed the assertion of the Employer that the grievor was aware as early as May, 1990, that the position had been filled by lateral transfer In thIS regard, he noted that, contrary to establIshed practIce, neIther the gnevor nor any of the other unsuccessful candidates receIved formal wntten JnotIficatIOn that the posItion had been filled ..-! J Because of this and other difficulties, counsel submItted, the gnevor dId not learn, of the outcome I , of the competition untIl January, 1992, a few days before he filed hIS gnevance These ~ submissions raised a substantial factual Issue for determmation m thIS proceedmg, and both partIes called eVIdence m support of theIr respectIve positions. For reasons which follow we conclude that, on a balance of probabilities, the gnevor was i aware at least by June, 1990, that the job posting was filled by lateral transfer but forgot about :! ( '....~-, -~....~-~ I ~~,;. 3 it because at the tIme he was primarily concerned with the results of Job competitions that were I more attractive. It was only when the gnevor was reminded in some way 10 January, 1992, that he decided to file a grievance. The resultant delay was unreasonable and was the responsibility of the gnevor In light of this, we conclude that the matter at hand is not a situation in whIch our discretion to exercise JunsdictIon ought to. be exercised We must allow the prelImmary objection and dIsmiss; the gnevance. I I - II At the heanng, we heard eVIdence from two WItnesses. the gnevor; and, Ms Nicole Mahoney, a Human Resources ASSIStant 10 the Central RegIon Office 10 HamIlton, OntarIO Due to the passage of time, it seems, this eVIdence was not of the hIghest quality There were inconsistencies iri the eVIdence and on both sides, a degree of reviSIon upon cross-exammation Neither party, however, seemed to have any corroborative evidence aVaIlable, and so it was \. upon the evidence of these two WItnesses that the Board had to rely in makmg its findings of I fact. J Upon direct examinatIon, the grievor testified that he had been employed by the LCBO for 18 years as of October 4, 1994 In 1990, when the events leadmg to the present gnevance took place, the grievor was a B Store Assistant Manager At that tIme, the gnevor applied for a considerable number of posted pOSItIOns In A, B, and C Stores mJhe Toronto area, mcludmg Hamilton, MissIssauga, Central Toronto, Brampton, Scarborough, and other areas. In makmg I i .,....... ---;_..... \ C.. ~, .. 4 this effort, the grievor saId, he most interested in more attractIve posItIons at the A and B Stores. He considered the position of C Store Manager to be lower m pnonty "- The gnevor said that ~e never was notified by the LCBO regarding the outcome of the posting for the C Store Manager pOSItIon which IS the subject of this grievance He said that he tried to find out but It was dIfficult to figure out by hImself what had happened Then, In January, 1992, a liquor salesman came Into his store and In the course of theIr conversation, he said, the salesman informed him that the C Store Manager position was filled by lateral transfer of an A Store Assistant Manager, Mr A MacDonald I Accordmg to the grievor, he called Mr D Golding, his DIstnct Manager, and asked for confirmation of this information Mr Golding replied that the LeBO did what it wanted to do \ Upon receiving this, information, the grievor said, he telephoned the Umon and filed the grievance leading to this proceeding The grievance was filed a few days after the telephone conversatIon wIth Mr GoldIng I Upon cross-examination, however, certain inconsistencies came to light. The gnevor testified that he spoke to the liquor salesman a week or two after he had spoken to a Umon representative about filIng a human rights complaint regarding his being denIed promotion to the \ position of an A or B Store Manager This meetmg with the Union representative, the grievor said, occurred at about the same time that he wrote a letter to the ChaIrman of the LCBO complaining about this discnminatlOn The trouble was, the letter to the ChaIrman of the LCBO - - .......--. \ 6 ~ I t, . ~ r;r.:- 5 I was shown to have been sent by the grievor on May 24, 1990 U sing this date as a reference point, then, it would appear that the grievor was advised by the lIquor salesman of the successful candidate in the present job competition in late Mayor early June, 1990, and not m January, 1992, as he had initially thought. The WItness for the Employer, Ms Nicole Mahoney, testified upon direct examination that on May 8, 1990, she receIved a telephone call from the gnevor 10 WhICh he enquired why Mr MacDonald had been transferred to fill the job that became the subJect of the present grievance. In the course of this conversation, Ms Mahoney said, the grievor mdicated that he had not receIved a letter informing hIm of the result of this competItion and that this was probably when she discovered that, by error, no such letter had gone out to any of the unsuccessful candIdates. Because thegrievor sounded upset, Ms Mahoney added, she then referred the grievor to her Supervisor,Mr Henry McNaughton, the Human Resources Co-ordmator for the Central RegIOn Ms Mahoney further testified that, as was her habIt when she received calls from agitated I persons, she made a dIary entry of what happened in her telephone call with the grievor Counsel for the Employer then sought to enter 1Oto eVIdence what purported to be a photocopy of this diary entry It stated D Massey; re: CR04/90 He called - upset - questioning re J MacDonald gett10g trans[ferred] into job Heard him out & then asked him to speak to Henry [McNaughton] or Jack [Powell, the grievor's District Manager and the person who requested the competItion to be cancelled by virtue of the transfer] ') ..... _'. . ....~>~..I?~~d_.:;:;,'--.. . .. -. \ I ( ~ / 6 As cim be seen, thIS purported diary entry was very specIfic as to the state of knowledge of the grievor \ The probative value of this evidence, however, was subsequently cast IOto doubt When counsel for the Union requested the origmal of the witness' diary for purposes of adequate cross- examinatIon, the onginal could not be produced Ms Mahoney explained that she only discovered the diary entry the day before she was scheduled to give eVIdence at our hearmg and that after maklOg a photocopy to gIve to counsel for the Employer, she placed her 1990 dIary:, along wIth several others, IOto a trash bag and left them wIth other superfluous Items to be thrown out by the maIntenance staff 10 her bUIlding It seems that at the tIine, Ms Mahoney's office was mov1Og, and thIS action on the part of Ms Mahoney was 10 response to a dIrectIVe j to dispose of unnecessary items before the move took place. ~~ When cross-examined with reference to the purported diary entry, Ms Mahoney became considerably less clear in her testimony regarding what was said m her telephone conversatIon with the grievor She said that she remembered two telephone conversatIons with the gnevor- the first was a fairly common occurrence before a competitIOn closed, and that was to enquire where he stood with respect to other applicants regarding semonty, the second was the May 8, 1990 call, which was confrontational She SaId that 10 thIS call, the gnevor asked her questIons regarding the C Store Manager cOmpetItIOn but she dId not recall what he had asked She said that she told him that the competitIon was cancelled and som~ne had been transferred into the ! i posItion She added that she probably did not give him the name of the person who was tran~ferred 1- ;:, I ~ " -- -..---. ~. (,~ - ~'r . \. 7 This evidence clouded somewhat the eVIdence gIven upon dIrect examination The thrust of Ms Mahoney's evidence upon dIrect was that the gnevcfr essentIally knew who the successful I candidate was prior to calling her and called her to find out why Mr MacDonald had been transferred into the job On cross, Ms Mahoney stated that she could not recall what the grievor had asked and did not think she named the successful candidate. These differences, along with the disappearance of the original dIary, cast mto doubt the questIon whether as of May 8, 1990, I the grievor actually knew that Mr MacDonald had been the successful candidate. III Nevertheless, we are convinced on a balance of probabilitIes that the gnevor knew by late May, 1990 or early June, 1990 that the posItion in question had been filled by lateral I transfer This inference is supported by the gnevor's own eVIdence upon cross-exammatIon, which established to our satisfaction that the conversation with the lIquor salesman that induced the grievor to file the Instant grievance occurred in May, 1990 and not as the gnevor thought, January, 1992. This was at least 18-19 months before the grievance was filed The question then becomes. In the circumstances of thIS case, was an 18-19 month delay in filing too unreasonable to permIt the gnevor to bring the ments of hIS grievance to arbitration , I , before the Grievance Settlement Board? We thmk that It was, and JurisdictIon of this matter must be respectfully declined ,- ---~,._. \ c,,,,.,, ~1::.' ..- I j 8 I In Re MetropolItan, Separate School Board and Canadian Union of PublIc Employees. Local 1280 (1992), 27' L.A C (4th) 154 (Brandt), the board reviewed a~ follows the factors to be considered 10 decIding whether to exerCIse its discretIOnary power under s 45(6) -of thy Labour RelatIOns Act to relIeve aga10st time limIts. \ The factors to be taken into account by a board of arbItration in decid10g whether or not to exercise the dIscretIonary power conferred under s 45(6) of the Labour RelatIOns Act are reVIewed 10 Re Becker Milk Co. and Teamsters UOlon. Loc. 647 (1978) 19 LAC (2d) 217 (Burkett), and Re Greater Niagara General HOSpItal and O.N.A. (1981), 1 LAC (3d) 1 (SChIft) In the Greater Niagara General HOSpItal case Professor SchIff lIsts the follow1Og relevant factors the nature of the gnevance, whether the delay occurred 10 IOltIally launch10g the gnevance or at some later stage, whether the gnevor was responsible for the delay, the reasons for the delay, the length of the delay, I and whether the employer could re(isonably have assumed the gnevance had been abandoned Id at 156 These factors have been applied in a number of arbitration awards Considenng the foregoing factors, It seems that, upon the facts as found by the board, there IS little 10 the way of foundatIon for exerclSlng our dIscretion As to the nature of the grievance, a job posting grievance can involve SIgnificant nghts under the collectIve agreement, and in particular, those relat10g to senionty At the same tIme, however, the nature of the grievance dictates the (nature of the eVIdence, and here, that would involve call10g eVIdence of the relative qualificatIons and seniority of the gnevor and Mr MacDonald as of January, 1990, some four years ago This evidence would relate to a competition, that never took place because of a lateral transfer, and so would be in the nature of a first-time run before this Board As has been experienced 10 the eVIdence upon thIS prelImmary obJectIon, the qUalIty of the eVIdence -_. " . \;~.;",,7 \ I 9 brought before the Board after the passage of such a lengthy period of tIme might be questionable and provide little in the way of an adequate basis for any reliable determinatIon Moreover, the delay occurred 10 InItIally launch10g the' gnevance. In light of (this, It would have been reasonable for the Employer to have inferred that no such gnevance was forthcoming ) As we have already found, the gnevor was responsIble for thIS delay While It was true that the Employer dId not formally notIfy the gnevor or other candIdates of the results of the competItion, we have found as a fact that the gnevor learned through other means that , Mr MacDonald had filled the Job by a lateral transfer It seem unfortunate that other more , pressing concerns regard10g more attractIve job post1Ogs caused the gnevor to forget about this particular competitIOn, however, thIS cannot be regarded as adequate reason for relIeVIng hIm of the consequences I As was said in Re Metropolitan Separate School Board, supra. We accept that, 10 pnncIple, genume dIsputes between the partIes to a collectIve agreement should be resolved on their merits and not be dISPOSed of on what might be considered to be a technicality However, we consider the positIon taken by the umon '1 to be too broad It would render s. 45(6) of the Labour RelatIons Act useless except m cases in which the gnevance raIsed Issues whI~h were entirely personal and idIOsyncratIc to the gnevor We do not belIeve the Act should be applIed m such a fashIOn Id at 158 It is not possible for the existence of a genuine dispute potentially 1Ovolving a sIgmficant right under the Collective Agreement to save every grievance from the consequences of undue delay in filing Here, the 18-19 month delay was undue. ) -"'"'";--:"1:'"""-~ - " . \ ! \. ,- 10 - The prelimmary objectIon is allowed and the grievance is dismissed DATED at London, Ontario, thIS 21st day of July, 1994 ./ =-...--- Roberts, Vice-Chairperson - I concur I concur (//;LJLLtY M MilicQ, Employer Member . 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