HomeMy WebLinkAbout1983-0027.Gwin.83-08-05IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between:
Before:
For the Grievor:
For the Employer:
Hearing:
OLBEU (Peter Gwin)
Grievor
- and -
The Crown in Right of Ontario
(Liquor Control Board of Ontario)
Employer
P. M. Draper Vice Chairman
R. Russell Member
P. D. Camp Member
E. Baker
General Secretary Ontario Liquor Boards Employees' Union
C. Slater
Counsel Hicks Morley Hamilton Stewart StOrie
Barristers & Solicitors
July 12, 1983
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DECISION
The Grievor, Peter Gwin, filed a grievance with
the Employer dated December 13, 1982, which stated the nature
of the grievance and the clauses violated as:
Discipline. Re clause 3.2 and 8 of collect-
ive agreement, that he has been disciplined
from his employment without just cause.
and the settlement desired as:
Payment of all monies lost, due to actions
by the Board, plus interest determined by
the Board, plus interest determined by
current bank saving deposit rate. Also a
written commitment by the Board that it
will institute proper management procedures--
explained to the personnel--to handle future
such situations.
The notice of the application for a hearing given
by the Registrar to the Employer, with copies to the Grievor
and the Union, is dated January 26, 1983, and states that the
application concerns a grievance alleging ". . . disciplined
from his employment without just cause".
At the outset of the hearing, counsel to the Employer
raised the preliminary objection that because the grievance is
based on a claim made under Article 3.2(c) of the collective
agreement between the parties that the Grievor has been disci-
plined without just cause and because the Employer denies that
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disciplinary action has been taken against the Grievor, a
prima facie case of discipline must be made out by the Grievor
before the Board could proceed to hear the merits. Re Brown
Brothers Ltd., (1973) 2 L.A.C. (2d) 347 (Weatherill) and &
Seneca College (1982, unreported, Weatherill) were cited in
support of the objection.
The representative of the Grievor responded that
the objection need not have been made since he did not intend
to present the grievance as a discipline case but as a claim
for attendance credits under Article 8 of the collective
agreement.
Counsel to the Employer thereupon objected that the
subject matter of the grievance was discipline and had been
dealt with as such by the parties throughout the grievance
procedure. Citing Article 21.8(a) of the collective agreement
which provides that no grievance may be submitted to this
Board ". . . which has not been properly carried through the
Grievance Procedure", he argued that what was being sought
was not simply an amendment to the existing grievance but
the presentation of a different grievance. The Board was
referred to Municipality of Metropolitan Toronto, (1979)
22 L.A.C. (2d) 225 (Schiff) and to a decision of this Board,
Heffering, 504/80.
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In reply, the representative of the Grievor, while
not disputing that the grievance had advanced to the present
stage as a discipline case, argued that there is a reference
to Article 8 in the grievance as filed, that both parties
were fully aware during the course of the grievance procedure
that what was in dispute was the matter of attendance credits,
and that he was entitled to pursue only that aspect of the
case.
Having recessed to consider the submissions of the
parties on the point, the Board delivered its decision orally,
with a short statement of reasons, dismissing the grievance.
We now confirm that decision and formally record
the reasons upon which it is based.
It is the opinion of this Board that the cause of
the grievance as initially stated and as carried through the
grievance procedure must be taken as defining the nature and
scope of that grievance. That being so, the Grievor has invoked
the jurisdiction of this Board to have resolved the claim made
by him that he has been disciplined without just cause. Once
that claim has been abandoned the issues raised by the griev-
ance are no longer before us for determination. If there is
no disciplinary action to be tried, there is no issue of just
cause or of redress for a penalty imposed.
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Had the matter proceeded in the normal course (and
leaving aside the question raised by the preliminary objection)
we would have been called upon to decide whether or not there
was just cause for discipline of the Grievor and, if so,
whether or not the denial of attendance credits was an appro-
priate (or perhaps an available) penalty. The grievance as
proposed to be presented would require us to decide whether
or not the Grievor was denied attendance credits in violation
of Article 8. In our opinion, we were thus faced not with a
request to entertain an amended grievance that would retain
the essential identity of the original issues, but a request
to entertain a grievance so fundamentally altered as to be
tantamount to a separate grievance raising different issues.
We recognize the force of the numerous court and
arbitration cases rejecting a legalistic approach to the
treatment of grievances and we acknowledge the desirability
of acting upon grievances so as to achieve settlement of the
true dispute. However, the problem raised by the Grievor's
late change of strategy, if it may be so termed, is not one
of form, or procedure, or of merely construing the language
of the original grievance, but is one going to the substance
of the grievance. We find nothing in the jurisprudence, of-
fering a basis upon which we might reasonably find the griev-
ante, as now presented, to be arbitrable and permit the case
to proceed as proposed.
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In the result, it was our conclusion that the
grievance could not be entertaindd and it was accordingly
dismissed.
DATED at Toronto this 5th day of August, 1983.
P.M. Draper Vice Chairman
R. Russell .
Member
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P.D. Camp Member
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