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HomeMy WebLinkAbout1985-0561.Cover.90-12-28EMPLOY~S DE Id CO”RONNE DEL’ONTARIO CQMMISSION DE SETTLEMENT REGLEMENT DES GRIEFS IN THE NATTER OF AN ARBITRATION Under THE CRONN EMPLOYEE8 COLLECTIVE BARGAINING ACT Before THE GRIEVANCE BBTTLENBNT BOARD BETNNEN OLBEU (Cover) - and - The Crown in Right of ,Ontario (Liquor Control Board of Ontario) BEFORE: ~-. R. Verity Vice-Chairperson I. Freedman Member P. Camp 1 Member C. Flood Counsel Koskie h Ninsky Barristers L Solicitors FOR TEE D. McKeown EMPLOYER Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors September 21, 1990 561/85 Grievor Employer -2- SUPPLEMENTARY DECISION . In this matter the panel was requested to reconvene to resolve difficulties encountered in the implementation of the Decision dated May 29, 1989. Although the panel did not retain jurisdiction, it was agreed that at least we had jurisdiction to clarify the decision. The arbitration dealt with the grievor's promotion to the position of Clerk 4 and the allegation of his improper demotion from Clerk 4 to Clerk 3 in June, 1985, contrary to the provisions of Article 16.10(a) (now Article 21.9) of the relevant Collective Agreement. In the 1989 Decision, the panel found that the Employer had improperly abridged the three month trial period provided by Article 16.10(a). However, the panel also found that the grievor had not performed in a satisfactory manner at the Clerk 4 level. In the result, the grievance was allowed. However, on the basis of the unusual facts adduced, the panel made the following remedial order at p, 13: First, the grievor must have completed a further 6 months as a Clerk 3 in order to upgrade his performance. ,The grievor shall be reinstated to the position of Clerk 4 and offered one further opportunity to demonstrate,satisfactory performance for ' a 90 day appraisal period at a.liquor store in Metropolitan .Toronto chosen by the Employer.... A critical fact, which arose during the course of the hearing, was withheld from the Board. On July 18, 1988 the grievorwas promoted to a Clerk 4 position at Store 534 in Toronto. The appointment became permanent on October 4, 1988. -3- The parties sought clarification on three issues; namely, the effect if any of the griever's 1988 appointment as Clerk 4, the timing of the six month upgrading in the Clerk 3 position and the reinstatement,to Clerk 4, and damages that flow from the Employer's actions. The Union contended that the Employer's actions may have reduced the griever's entitlement to damages but nothing more. Onthe timing issue, Mr. Flood contends that the grievor should have been placed in the Clerk 3 position from the effective date of the demotion and that reinstatement as Clerk 4 would begin six months later. The Union contended that the grievor is entitled to damages being the difference in rates of pay between Clerk 4 and Clerk 3 from November or December,.1985 to July 1988. Insupport, the Board was referred to the following authorities: Re Consumer's Gas Co. and International Chemical Workers' Union, Local 161 (1974), 6 L.A.C. (2d) 61 (Weatherill); Re International Nickel Co. of Canada Ltd. and United Steelworkers, Local 6500 (1975), 9 L.A.C. (2d) 83 (Simmons); Re Falconbridge Nickel Mines Ltd. and Sudbury Mine, Mill and Smelter Workers Union, Local 598 (1979), 22 L.A.C. (2d) 390 (Brown); and Beer Precast Concrete Ltd. and Labourers International Union of North America, Local 506 - Pacheco Grievance (unreported decision dated May 22, 1990 - D. C. Stanley). The Employer argued that Mr. Cover's appointment as Clerk 4 in July 1988 effectively pre-empted the Board's decision of May 1989. Mr. McKeown maintained that the decision was effective from the date of its issuance and that in the absence of a damage award, any such order would have the effect of substantially amending the original decision. The Employer cited the following authorities: & Municipality of Metropolitan Toronto and Canadian Union of Public Employees, Local . - 4 - r 43 (1974), 8 L.A.C. (Zd) 54 (Carter); Re Brokmann et al. and Board of Governors of - the Hamilton Civic Hospitals (1972). 30 D.L.R. (3d) 552 (Ont. Div. Ct.); Ms. Dianne Abbott and Liquor Control Board of Ontario, G.S.B. #481/80.(Weatherill); and Re - Niagara South Board of Education and Ontario Secondary,School Teachers' Federation, District 7 (1980), 26 L.A.C. (Zd) 332 (Kennedy). In the instant matter, there was no argument that the panel was without jurisdiction in the sense of being functus officio. Clearly,~the panel's decision dated May 29, 1989 is a final decision. At best, the Board's jurisdiction on a supplementary hearing is to clarify the decision. We adopt the rationale of Vice-Chairperson Weatherill, as he then was, in the Dianne Abbott decision of the Grievance Settlement Board, supra, where Mr. Weatherill states at p. 2: There is no provision in the Crown Employees Collective Bar ainin Act specifically empowering the Grievance Settlement Eiisa+m; to review, or to amend, alter or vary any final decision which it has issued. It seems clear that the decision issued in this matter on May 29, 1981 was a final decision. It is difficult to understand why the panel was not advised of the griever's appointment as Clerk 4 in July, 1988. No reason was given why this fact was withheld from the Board. Clearly, the grievor's 1988 appointment'would have affected the ultimate remedy. Accordingly, we must conclude that the failure to advise of this crucial fact renders the May 29, 1989 deci~sion academic. That decision addresses the future and gives to Mr. Cover a further opportunity to~perform satisfactorily as a Clerk 4 following a six month upgrade in -5- the position of Clerk 3. The decision is silent on the issue of damages. Rather than being an oversight, it was never the intent to award damages in light of the unusual facts of this case. To make such an award at this point in time would be improper and would have the qffect of a substantial amendment to a final decision. For reasons previously stated, we ,must conclude that our 1989 final award is now academic. DATED at Brantford, Ontario, this 28thday ofDe&mber, 1990. _ -: . . qi,; .%**. . . . P. CMP --.