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HomeMy WebLinkAbout1980-0112.Clements.81-02-23 Decision• GRIEVANCE SETTLEMENT BOARD 112/80 TELEPHONE: 416/598- 0688 180 DUNDAS STREET WEST. TORONTO. ONTARIO. M5G 1Z8 -SUITE 2100 ONTARIO CROWN EMPLOYEES IN THE MATTER OF AN ARBITRATION Under The CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: C. J. Clements and The Crown in Right of Ontario Liquor Control Board of Ontario J. R. S. Prichard Vice-Chairman G. Peckham Member W. Walsh Member For the Grievor: For the Employer: Hearing: A.M. Heisey W. R. Hitch, Q.C. and Associates B.H. Stewart, Q.C. Hicks, Morley, Hamilton August 19, 1980 -2-. In this case the grievor alleges that he was dismissed from the employ of the Liquor Control Board of Ontario without just and sufficient cause. He seeks reinstatement and compensation for lost earnings. At the time of his dismissal the grievor was working at the Kipling Warehouse of the LCBO. At the time the grievor was advised of his dismissal, he had just completed his probationary period with the employer. At the hearing counsel for the employer took a preliminary objection to our proceeding to hear the merits of the case. His objection related to timeliness and its resolution required certain findings of fact. We therefore proceeded to hear evidence and argument relevant to the timeliness issue and then adjourned the hearing to prepare this award. II The grievor was notified of his dismissal on January 11, 1979. During the afternoon that day he spoke to his union representative at the warehouse, Mr. Duncan MacKinnon. On January 12 the grievor and Mr. MacKinnon spoke with the Assistant Manager of the warehouse, Mr. Kyle, concerning the grievor's dismissal. Mr. Kyle advised the two men that the LCBO's position was that the grievor had been released. Mr. MacKinnon told the grievor that the union would fight this decision for him and then went to the union's offices to confer with the union's in-house solicitor. As a result of Mr. MacKinnon's discussion with the solicitor, the following letter was prepared on January 12, 1979: 3 January 12, 1979 Mr. W. J. Bosworth, Chairman Liquor Control Board of Ontario 55 Lakeshore Blvd. East Toronto, Ontario Dear Mr. Bosworth: In accordance with Article 22.1 and Article 3.2 of the collective agreement between the Liquor Control Board of Ontario and the Employees' Association, I do hereby grieve that I have been dismissed by the Liquor Control Board without just and sufficient cause. I request immediate reinstatement to my position with the L.C.B.O. and a return of all monies and credits lost to myself as a result of this action. Also in accordance with Article 21.3 of the agreement, I have elected to be assisted by a representative in this grievance, and any action pertaining to this matter should therefore include such a representative. Also please consider this as your authority to allow an Association representative access to my files with the Board. Yours truly, "Christopher Clements/WRA" cc: Employees' Association The LCBO take the position that it never received this letter and was unaware of the fact that the grievor wanted to grieve his dismissal until March, 1980, some fourteen months later. In the result, there are two issues to be resolved. First, was this letter sent to the LCBO on or about January 12, 1979? Second, if it was not, what is the effect of the fourteen month delay in notifying the LCBO of the grievance? The first issue is a purely factual one while the second involves both legal and factual judgments. - 4 - On the first issue there was no direct evidence as to the mailing of the letter. However, numerous circumstantial facts have led us to conclude that the grievance letter was not sent to the LCBO by the Union's solicitor. The solicitor (who has since left the employ of the Union) did not testify at the hearing and thus we have reached our conclusion in the absence of evidence from the person perhaps best able to advise us of the facts. The most compelling circumstantial evidence was as follows. First, the file on the grievor's case opened in January, 1979 contained only the letter. It contained no further documentation or notes until February/March, 1980 when a new member of the Union's staff took charge of the case. Based on the file we must conclude there was no activity of any kind - letters, telephone calls, investigations, etc. - undertaken by the solicitor between January, 1979 and February/March, 1980. Second, the General Secretary of the Union, Mr. Baker, who joined the Union's staff in late August, 1979, described the Union's filing system prior to March, 1980 as "a jungle . . . a joke - a very bad one". In March, 1980 a tickler system was introduced. Based on the evidence we have an impression that the filing system relating to grievances was in sufficient disarray that the grievor's file could lie untouched for fourteen months. Third, the LCBO apparently maintains a careful filing system for receiving grievances which, in the memory of the management witnesses, has never before led to a claim that a grievance was filed but lost by management. Based on this orderly filing system, the LCBO was able to state with confidence that the letter was never received. Fourth, Mr. MacKinnon, the Union - 5 - representative at the warehouse, testified that through all of 1979 and early 1980 he repeatedly inquired of the Union's solicitor as to the progress of the grievor's case. Indeed, he testified that he inquired upwards of twenty times over the fourteen months. He indicated that his inquiries were met by assurances that the case was being worked on. These assurances would appear to be directly contradicted by the total absence of contact between the LCBO and the solicitor and by the total absence of any notations in the grievor's file. Regretfully, we are forced to conclude on the balance of probabilities that the grievance letter was never mailed and that the grievance was not carried forward by the Union's solicitor. We have no alternative but to find that the LCBO was in no way aware of the existence of the grievance until some time between mid-February and late March when the case was raised with Mr. McDougall, the staff relations officer with the LCBO. Indeed, not only was the LCBO not aware of the case until that date, but its warehouse assistant manager, Mr. Kyle, had reason to believe the dismissal was not being grieved. This belief arose since on January 12 and in the days immediately following, Mr. MacKinnon advised Mr. Kyle that the grievor would be grieving. When this was not followed up by a grievance, he quite reasonably assumed the matter had been settled and did not advise head office of the possibility of a grievance. Furthermore, he took no steps to preserve or prepare management's case concerning the grievance. This conclusion that the grievance was not brought to the - 6 - LCBO's attention until fourteen months after the dismissal brings us to the second issue concerning the effect of this delay. Article 21 of the collective agreement sets out various time limits for the processing of grievances. On all the traditional tests, the language of their time limits makes them mandatory. Since these time limits speak in terms of seven, fourteen and ten day periods, they have clearly all been breached by the fourteen month delay. The question then arises whether or not this delay should lead us to dismiss the grievance. Counsel for the Union took the position that in light of Re Keeling (45/78), the mandatory time limits could not bar the grievor from putting his case before us and that the matter of delay went only to the merits of the case. He therefore argued that we should reconvene the hearing to receive all the evidence relating to all aspects of the merits of the case before assessing the effect of the delay on the merits. Counsel for the employer argued that Re Keeling should be reversed and the mandatory time limits given effect. Failing that he argued we should hold that the delay was so prejudicial to the employer's case that the case could and should be dismissed on the merits at this stage. We now turn to an assessment of these competing positions. 7 Ill The primary decision of the Grievance Settlement Board dealing with timeliness is Re Keeling (45/78). In that case the grievance violated the mandatory time limits in the collective agreement between the parties. The Board held that the mandatory time limits were inconsistent with section 17(2) of the Crown Employees' Collective Bargaining Act and could not therefore act as an absolute bar to the processing of the grievance. The Board did make clear, however, that this decision did not eliminate the relevance of delay in processing grievances but rather made delay a matter going to the merits of the case as opposed to the Board's jurisdiction. The employer sought judicial review of that decision in the Divisional Court but in an unreported decision dated April 14, 1980 the court denied the employer's application. The employer then sought leave to appeal to the Court of Appeal and was again unsuccessful. The decision in Keeling has subsequently been followed in other cases at the Grievance Settlement Board (e.g. Re Woods (224/79). At the hearing, counsel for the employer sought to persuade us that the Board's decision in Re Keeling was wrong and should not be followed. He made a number of very able arguments relating to the appropriate reconciliation of the collective agreement and the statute, the proper meaning of the phrase "final determination" in section 17(2) and the distinction between barring a grievance and channelling a grievance through agreed upon procedures. Each of these arguments was, however, considered by the Board in reaching the decision in Re Keeling although it - 8 - is fair to say that the panel of the Board which decided Re Keeling was not assisted by such an authoritative presentation on behalf of the employer. In the result, we are not now persuaded that the decision in Re Keeling should be altered. We recognize that strong and meritorious arguments can be made on both sides of the issue, but on balance we believe the better view is that adopted in Re Keeling. We wish to add that we recognize the dilemma facing counsel for the employer in a case such as this. The Board has stated previously (see Re Bateman (2/77) that one panel of the Board should follow the decisions of other panels of the Board in the absence of being persuaded that the previous decision was manifestly erroneous. Failing such a demonstration the Board has stated that the parties should look to the bargaining table and not the Board in order to reverse decisions of the Board. In the result, the party challenging a previous decision bears a heavy onus if it is to persuade the Board to reverse a previous decision. While this Board policy is, in our opinion, a sound one in most situations it may require reconsideration with respect to cases which turn on an interpretation of the statute rather than the collective agreement since the efficacy of the bargaining table as an alternative remedial forum is much more constrained in the case of interpretation of the statute. That is, in cases involving the proper interpretation of the statute such as was the situation in Re Keeling, the parties are unable to reverse the Board's holdings through negotiation since the essence of the argument is that the Legislature has constrained the parties' negotiating freedom. Thus the only routes open to reverse the Board's holding is such a case is to seek judicial review, a legislative amendment or a reconsideration by the Board. - 9 - The utility of judicial review as a remedial forum has been substantially reduced by virtue of the decisions of the Supreme Court of Canada in CUPE Local 963 v. New Brunswick Liquor Corporation (1979) 2 S.C.R. 227 and Hughes Boat Works Inc. v. UAW Local 1620 79 C.L.L.C. 15,361 and the posture of the Ontario Divisional Court in Re Keeling, supra, and Re Cook (unreported judgment of Mr. Justice Osler dated February 1, 1980). By setting the appropriate standard of review at "patently unreasonable", the courts have substantially increased the interpretive discretion permitted this Board, and thus reducing the likelihood of a direct review on the merits of a Board decision. While the unavailability of a Legislative amendment to reverse a Board decision is not complete (see, for example, S.O. 1978, c.79), it would be unreasonable to believe that this represents a suitable remedial forum in many instances. Furthermore, some question could well be raised concerning the equality between the parties of access to this forum. These restrictions on negotiations, judicial review and legislative amendment as remedial forums puts increased pressure on the Board as the most appropriate forum for ensuring the fair and reasoned interpretation of the Crown Employees' Collective Bargaining Act. That is not to say the Board would wish to encourage repeated relitigating of our decisions involving statutory interpretation. Nor would we wish to see our willingness to reconsider such matters construed as an invitation to encourage repeated reversals of our previous decisions. Rather, we are simply suggesting that in those cases in which the other remedial forums are relatively less available, the Board may wish to relax somewhat its standard of review in reconsidering previous decisions. - 10 - In the case before us, even applying this relaxed standard we are not persuaded that our holding in Re Keeling should be disturbed or altered. We recognize that since this panel of the Board has two members in common (including the Vice-Chairman) with the panel of the Board which decided Re Keeling, we may not be as able as some other panels to recognize the full force of the employer's arguments. On the other hand, experience at the Board since Re Keeling would not appear to suggest that the decision has fundamentally undermined or impaired the grievance resolution processes within the Ontario public service. IV The employer's alternative position was that even accepting Re Keeling, this case should be dismissed on the merits as a result of the prejudicial effect of the fourteen month delay between the grievor's dismissal and the filing of the grievance. This position raises two issues. First, has the delay so prejudiced the proper conduct of this case that it should be dismissed on the merits? Second, is it appropriate for the Board to make such a ruling without hearing all the evidence the parties may wish to adduce on all aspects of the case. We invited written submissions on the latter point, seeking the parties' guidance as to whether the Board was in a position to deal with timeliness as it affects the merits at this stage in our proceedings. - 11 - It is clear on the authorities that substantial prejudice through delay goes to the merits of the case and can be grounds for dismissing the grievance (Re Keeling, supra; Re Ottawa Citizen (1966) 55 D.L.R. (2d)27). We have found such prejudice based on the evidence we have heard to this stage in the hearing. The remaining issue, therefore, is whether we should continue to hear further evidence or rather should dismiss the case at this stage. Counsel surveyed the relevant arbitral authorities on this point for us. To date there has not been a decision of this Board dealing directly with this procedural issue. However, certain authorities in the private sector would appear to favour the employer's position. In Re Ottawa Citizen, supra, after the court instructed the arbitrator to consider delay as going to the merits and not to his jurisdiction, the arbitrator proceeded to dismiss the grievance without hearing evidence on the full merits of the grievance. He restated the test he had earlier set out in Re Shipping Federation of Canada Inc. (1967) 18 L.A.C. 174 (Weatherill): "It is our opinion that a board of arbitration ought not to refuse to hear the merits of a grievance except where it would clearly be improper to proceed. Certainly the grievor was entitled to a fair hearing of his case. A 'fair hearing' however must be fair to both sides. Because of the union's delay in proceeding with this matter, a fair hearing has become impossible, since the employer has been substantially prejudiced in the presentation of its case. It is clear to us that in these circumstances the matter is not arbitrable. We would emphasize that our determination on this point is no - 12 - mere 'technicality'; the requirement of a fair hearing lies at the very root of the notice of justice, ' and it is precisely this which the union, by its delay, has denied both to the grievor and to the employer." ((1970) 20 L.A.C. 27 (Weatherill) at Page 30.) A similar procedure was apparently adopted in Liquid Carbonic Canada Corp. Ltd. (1972) 23 L.A.C. 78 (Rayner). There are, of course, numerous cases in which unreasonable delay was raised as an objection by the employer but rejected on the facts by the arbitrator. However, these cases are not inconsistent with the procedural proposition that in appropriate cases of unreasonable delay causing substantial prejudice it may be appropriate to dismiss the case without hearing all the evidence as to the merits. Whether or not such cases should be dismissed at any given stage is, of course, a discretionary matter and each panel of the Board must exercise its discretion in light of the facts in each case. In this case we have concluded on the basis of the facts of the case and the evidence before us that we should dismiss this grievance on the merits without hearing further evidence. The absence of notice of the grievance for fourteen months is so completely at odds with the type of procedures developed throughout labour relations for the timely identification of grievances that we do not believe that it would be possible to hold a fair hearing in this case at this stage. No amount of evidence which we might hear at this stage could eliminate or outweigh the inherent prejudice done to the employer's position by virtue of the delay. Although on hearing the evidence we might be tempted to believe that we were - 13 -- seeing a fair hearing, we would never be in a position to know with confidence the nature of evidence we would have heard in the absence of the delay. It is the inherent impossibility of restoring that confidence at this stage that makes it appropriate to dismiss the grievance on the merits at this stage. The prejudice to the employer's case and our ability to hold a fair hearing does not turn on the potentially increased liability of the employer. That dimension of the prejudice could be met through an appropriately designed remedy. Similarly, the retirement of one of the employer's witnesses does not constitute substantial prejudice. The prejudice arises from the fact that as a result of the Union's failure to file the grievance, the employer was precluded from a full, effective and timely investigation of the discharge with a subsequent deterioration in the quality of the case that the employer would be able to put forward. This prejudice is not contradicted by Mr. Kyle's testimony that he was able to recall the discharge and that documents were still available. What has been lost by the absence of a timely investigation and consideration of the case cannot now be known. As a result, despite Mr. Kyle's self-perception, the reality is that the employer's position has been irreversibly prejudiced. The decision in Re Keeling was not an invitation to ignore timeliness consideration, but rather a decision which permits the Board to consider timeliness without being bound by the strict time limits of the collective agreement. In doing so, we must be guided by the established patterns of grievance processing in both the private and public sectors. - 14 - The delay in the processing of this case was so great that it takes the case outside even the most liberal version of the requirements for a fair hearing. We have deliberately refrained from commenting on any remedy the grievor might seek or have sought against his Union. This issue is not, and should not be, before us. V A final matter which requires comment before completing this decision concerns the findings we have made about the Union solicitor's conduct in processing of the grievor's case. In finding that the grievance letter was not mailed, we are indirectly allocating responsibility for this failure to the solicitor. We should stress that we are making these findings without the benefit of evidence from the solicitor. He was not issued a subpoena to appear by either side. Counsel for the Union advised us that the solicitor had been asked to appear, but that when he declined the invitation, the Union decided not to subpoena him. - 15 - At the conclusion of the hearing we raised with counsel the question of whether or not it was appropriate for us to proceed to make factual determinations without hearing from the solicitor which might reflect negatively on the solicitor's conduct. Counsel suggested that since the solicitor was not a party to the proceedings and since he had declined an invitation to appear as a witness for the Union, we were free to proceed. Following the hearing the solicitor contacted the Vice-Chairman directly to express his concern about the proceedings. This ex parte contact led the Vice-Chairman to have the following letter sent to counsel and to the solicitor: "Professor Prichard has instructed me to write informing you that following the conclusion of the hearing in the above-captioned matter, he received a telephone call from (the solicitor). (The solicitor) indicated that he had been told by Mr. Heisey that there had been some questioning by Professor Prichard during the hearing of (the solicitor's) conduct in the processing of the Clement's grievance while employed by the Union. Professor Prichard told (the solicitor) that since the matter was before the Grievance Settlement Board it was improper for (the solicitor) to discuss the matter or to provide any information related to any aspect of the case. Professor Prichard briefly related the circumstances in which the comments concerning (the solicitor's) conduct arose at the conclusion of the hearing and then advised him that if he wished to do anything about the issue, he must do so by correspondence directed to the Registrar of the Board. Professor Prichard explicitly declined to offer any advice as to whether (the solicitor) should or could do anything about the matter at this stage. Finally, Professor Prichard advised (the solicitor) that in the circumstances he felt compelled to send this letter to both counsel to record the fact and substance of this unfortunate ex parte contact." - 16 - Subsequently, the Board received the following letter from the solicitor: "With regard to the hearing of August 19, 1980, I deem it necessary to make the following comments: 1)Absence from hearing: Due to the fact that I was not notified until the evening prior to the hearing, I was not able to attend. However, a subpoena could have been issued or an adjournment requested. 2)Professional Conduct: I cannot help but be concerned about any comments regarding my professional conduct: There is something inherently wrong with a system that allows a person's conduct to be questioned without giving that person an opportunity to defend himself. Though it may still be said that I at least knew of the hearing, such short notice and the impossibility of predicting the course of the hearing, should not go against me. I want it on record that I conducted myself in the proper manner at all times while in the employ of the union. I will not be held responsible for mailing, filing or other clerical duties. As I take great pride in my endeavours, I find it hard to believe that this situation could have arisen. I would appreciate hearing your comments on this matter. I can be reached at: Days: Evenings: •It We also received the following letter from counsel for the Union: If I was quite concerned with the impression that appeared to have been made in the Board's mind with respect to the actions of the former legal administrator of the Ontario Liquor Boards Employee's Union. - 17 - As the Board was made aware the grievance before it on August 19th, 1980 was not that originally scheduled. It was only determined at the end of the week preceding the August 19th, 1980 hearing date that the Clement's grievance would be heard. The Union, to accommodate the Employer and to assist the Grievance Settlement Board in removing its backlog of cases, agreed to this last minute substitution. I attempted to contact (the solicitor) but was unsuccessful in doing so until the night of August 18th, 1980 at which time I requested that he attend before the Board. (I was instructed by my client the 0.L.B.E.U. not to subpoena him.) (The solicitor) advised me that he would not attend. He has subsequently informed me that he could not attend because of the short notice involved. He has, however, asked me to inform the Board that he will make himself available to the Board if it should so require. As a former colleague of (the solicitor) I have nothing but the highest respect for his abilities and competence. I feel it would be unwarranted to draw any negative inferences from the fact that (the solicitor) was not in attendance before the Board other than the fact that both parties were operating on very short notice. lam, Yours very truly, (signed) A. MILLIKEN HEISEY" There is very little for us to add on this matter; we prefer to allow the letters to speak for themselves. Suffice it to say that to the extent that the letters contain matters of fact relevant to the case before us, we ignored them to the extent that those facts were not provided or adduced at the hearing. To the extent that the matters place the solicitor's conduct in perspective, we have no desire to add anything. - 18 - The Board decided it would be inappropriate for the hearing to be reconvened to receive evidence and/or submissions from the solicitor. Furthermore, we declined the solicitor's invitation at the conclusion of his letter to provide him with any comments or reply apart from this award. VI In sum, the grievance is dismissed on the merits in light of the undue delay in notifying the LC80 of the existence of this grievance. We wish to 'record our thanks to Mr. Stewart and Mr. Heisey for their assistance in this matter. Dated at Toronto this 23rd day of February, 1981 3. R. S. Prichard, Vice-Chairman "I Concur" George Peckham, Member "I dissent" (dissent to follow) William Walsh, Member LMP