HomeMy WebLinkAbout1981-0343.Battams.82-02-08Sefore :
7cr th.e Griever:
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The griever complains that be is i?3rz;er1:1
classified &~a Draftsman I and seeks to be roclzssif:sd 'ai
a Draftsman II in the Ministry of Transportatic: and
Communications.
The grievor maintains that he ?erforzs the
identical duties to those performed by one Donald Stewart
who is now classified as a Draftsman II and thaz acccrdingly
he deserves the same classi,fication.. The employer dces not
deny that the grievor performs the identical duties.
performed by Stewart but nevertheless resists the grievance
on the basis that, in essence, Stewart is not properly
classifed as a Draftsman II. I
Stewart wa%~~cl.&sified as a Draftsman II as' the
result of a unanimous award of this board, chaired by
Vice-Chairman Brent and numbered 222/78. In that award we
read:
"The evidence presented by .the.parties has not been of much assistance to the
Board in determining this matter. The
conclusions which can be drawn from the
griever's evidence are that additional duties which had been performed by a Draftsman II at Head Office were
transferred to him at the Central Region. The grievor's new job
description reflects these additional duties, and also differs from his old job description in that it is liberally
peppered with the word 'complex' in connection with his drafting duties.
The most helpful evidence for the
grievor came from the employer's witness, Yr. Dale Gunter, the Xead of. the Geotechnical Section and tha
griever's immediate surpervisor. Yr.
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r,z.tter ;;?.;ch has ne*rer been chal!enged ~b’/ J :utiici31
_.. r*.riew. The employer maizrains that he is ‘entitled to
litigate the instant grie.:ance and that he ought not to he
f:reclosed by the <earlier award dealing ‘as it did vith a
different individual; Battam’s cl,assifi’cation is being
disputed and not Stewart’s,
Given the admission of the employer that the
C-ties cerforxed by 3attar.s and Stewart are-identical, and
given the classification of Stewart, it is apparent that the
er?Ioye: now seeks to remedy what it perceives as a previ,ous
defecti*:e presentation by its witnesses and earlier
represec:atiye. Mistakes may have been made in the
present3tfon of the case in the Stewart hearing;.it is
readily apparen’t for examFie that, contrary to the finding
ir. that award, Stewart did not “hold a unique sort of
‘drafting posi:ion”. Butch the principle of Einali~ty must
a;?ly to these hearings just as it applies’ in civil and
criminal litigation. The employer here seeks to resist the
grievance on the basis :hz: the earlier~ award is inaccurate,
Cat Stewart does not deserve to be, classified as a
Sraftsman II. That issue has been litigated once between
t::ese parties and the empl~oyer~ aust be ,fo,reclosed from
r?-opening it to ensure that the parties can bring some
c5rta,inzy to the ordering of their affairs.
The pri’ncijle which underlies this award nay !x
litened’to t!ie doctrine of issue estoppel recognized by our
courts, zivi! and cr!ztina:. Or.12 of the fines: descriptions
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Zeiss Stiftunq v. Ra*/ner and Keel Ltd. (:I-. 2j [1357: G..“.
S53 at’ 933 (H.L.):
“The doctrine of estoppel per re:.
.judicatam is reflected in two Latin
maxims, (1) interest rei publicae ut sit
finis litium, and (2) neno debet bis *
vexari pro una et eadem ca,usa. ?.e former is public policy and the latter
is private justice. The rule of
‘estoppel by res judicata, which is a
rule of evidence, is that where a final
decision has been pronounced by a judicial tribunal of competent . jurisdiction over the .parties to and the
subject-matter of the litigation, any
party or privy to such litigation. as agains,t any other party or privy is
estopped in air)r subsequent litigation
from disputing or questioning Such decision on the merits (Spencer Sower on
Res Judicata, ‘p. 3).
As originally categorised, res judicata was known as ‘estoppel by
record’. But as it is now quite
immaterial whether the jud.icial decision is pronounced by a tribunal which is required to keep a written record of its
decisions, this nomenclature has disap;>eared and it may’be convenient to
describe res-judicata in its true and original form as ‘cause of action estoppel”. This had .long been
reco,gnized as operating as a complete
bar if the necessary cohditions~are present. Within recent years the
principle has developed so as to extend to what is now described as .*iss,*e estoppel ’ , that is to say, whdn a
judicial decision between the sa?e
Tartles some issue which was in controversy between the partles and was
incidental to the main decision has been
decided, then that may create an estopoel per rem ludlcatan.
. . . ~. .~ Although not described as ‘issue estoppel’ , it is inferentially a-,oro\ie-l
in the most. recent textbook on Res.
Judicata by Spencer Bower at p. 3 Yhere he speaks of a judicial decision .,*hich
. .
;involved 'a dess,Tina:<on cf the same
question as thr= sou9kt to L*
contraverted i: the l;cigat::n in.dhich
the estoppel ii raisei.' 7::~ d0ctrir.e. of issue esto;;el has also keen accepted
as good law by zhe cc';rts ir. Australia for a number cf years.
The requi--., --Tents of iss.2e estoppel
still remain (1) that the szme question
has been decids5; (2) that zhe judicial decision which 'is saiZ to create the
estoppel was foal; and, (5: that the parties to the.judicial decision or
their privies bzre the same persons as
the parties to zie prcceedi:;s in which the estoppei i-; raise: or t?.eir privies."
(Emphasis added;
In this case the,employer :s estc;-,ed from raising the
issue of how the Tabs performed by both Stewart and Eattams
deserve to be classified. As presented to us in the
instant case, that is the Tery issue which was decided
between the parties in the Soewarz case.
In the result zhen tbe.griey:ance is allowed
and the grievor, ~Battaxx, .<ill be ordered reclassified as
a Draftsman II effective April 1, i977 with the entitle-
ment to compensation at tkst level from that date. Re t
must be ~paid the difference between the two rates from
April 1, 1977 to the date -hat this awar? is implemented.
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DAT"D at i<ing$ton, this 8th day of Februa.-:., 1462.
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Prof. 4. J. Delisla Vice Ckz3ar.
$11 concur"
Xr . H. Sinon member
."I concur"
Mr. 9. Roberts Xenber