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Home My WebLink About1993-1724.Longe.97-07-09COMMISSION DE .. RfiGLEMENT DES GRIEFS’ . ‘a I TELfPi-fONE~LiPHONf : (47 6) 326 - 7388 FACS~MILE~T~LkCOPIE : (416) 326-1396 180 DUNDAS STREET WES’I; SUiTE 2100, TOf?ONTO ON’ h&G iZ8 180, RUE DUNDAS WES’I; BUREAU 2100, TORdfJro (ON) M5G lZ8 GSB # 1724/93 . CUrjE # '.93-30 -- IN THE~ATTER OF AN ARBITRATION: : . : Under THE CROWN EMPLOYEE,S COLLECTIVE BARGAINING ACT - - Before TEE GXbVANCE SETTLEMENT Bob, -_ '_ CUPE 1750 (Longe) Grievor '. - and - BETW&EN -The Crown in Right of Ontario (Workers' Compensation ,Board) Employer BEFORE : L. Mikus : J. Carruthers.., M. Milich .__ Vice-Chai$ Member Member ??A -: FOR TBE GRIEVOR‘ / ! . R. Carnovale CUPE National Representative : FOR TEE : L. Xosmidis , / &~PLOYER Counsel Workers' Compensation Board ' . HEARING: March 5; 1997 The grievor, grieves his unwarranted termination. The grievance is dated April 16, 1993. It was duly processed through the grievance procedure and a hearing date was &t by the Grievance Settlement Board in 1994. At that hearing the Union advised the Employer that it was unableto . . . . proceed and the hearing was adjourned. Ms. Kosmiois, for the Ministry, took the position that, although the Employer did not object to the adjournment, the hearing was not adjourned on consent. In any event, no further steps were taken in respect of the grievance for two years and ten months, some four years after the termination, when the Employer was advised that a hearing was scheduled for March 5, 1997. The Ministry took the position that the grievance should be dismissed because of delay and prejudice. It relied on the following cases: Re Cybermedix Health Services Ltd; and Ontario Public Service Employees’ Union, Local 544 (1990), 11 L.A.C. (4th) 334. (H.D. Brown); ‘Re,Oil, Chemical & Atomic Workers, Local 9-672 and Dow Chemical of Canada Ltd. (1966); 18 L.A.C. 50 (H.W. , _’ Arthurs); Re Abitibi-Price Inc. And United Paperworkers International Union, Local 1375 -2 (1993), 38 L.A.C. 59 (M. Rennie) and Re Cybermedix Health Services Ltd.:and Ontario Public Service Employees Union, Local 544 (1992), 30 L.A.C. 436 (P. Haefling). ‘; / Those cases stand for the proposition that the doctrine of lathes can aljply in the arbitration context where there has been an unreasonable delay in processing a grievance to arbitration and where that delay results in actual prejudice to the opposite party. ‘1 I J i .i ‘. 2 _. In the instant case, no reasons were advanced for the delay. Neither counsel, as. Kosmiois nor Mr. Carnivale, were involved in the proceedings in 1994.and attempted to reconstruct the detailsof the ’ previous hearing from the notes in the file. According to Mr. Carnivale, there ‘was a notation in the file that the Union had agreed not to ask for retroactivity from the date of the delay. Ms. Kosmiois was unaware of any such agreement. In short, neither party was in a position, to explain the delay. It was the contention of the-Ministry, however, that it would be unfair to ask them to proceed in the circumstances. The grievor was discharged from his position of Vocational Rehabilitation counsellor for poor work performance. The grievor’s technical advisor, Ms. Bella Dumont, who”was responsible for monitoring the grievor’s performance on an ongoing basis, died ‘in May of 1995. She ’ I : was the one who advised her immediate supervisor, Ms. Wanda Chricton, of the grievor’s performance problems. While Ms. Chricton is a&able to testify, her evidence will, of necessity, involve the hearsay notes and comments of Ms. Dumont. Even if this Board were to accept that evidence and give it me weight the Ministry would propose, it is incomplete. The Ministry will not be able to put on its best case as a result: The onus on the Employer in this case is heavy. Due to the delay it does not have the witness necessary to meet that onus. For those reasons, this grievance, it submitted, should be dismissed. , . Mr. Carnovale, for the Union, suggested that the parties prior agreement to. waive retroactivity for the period following the adjourtiment in 1994 should relieve against any concerns of prejudice raised ._’ by the Employer. As well, to the extent that the Employer might rely on hearsay evidence, the Board has the authority to admit and consider that evidence in arriving at, its decision. Finally, it was his 1 : ’ 3 . position that the memos written to the grievor about his performance were; not authored by Ms. Dumont but by MsChricton, who is-present and can testify about those memos. -- In determining whether a delay is sufficient to invoke the doctrine of lathes or undue delay,,there : must be acquiescence by the party seeking to enforce a right and a change in positionor detriment / : on the part of the other side. In this case, the Union allowed some 30 months to elapse between the : adjournment and the next hearing date. During that time it took no steps to ‘enforce its or the grievor’s rights. In the interval, the one person who had direct knowledge of the incidents giving rise to the allegations of incompetence expired. While her supervisor was involved in the decision to terminate the:grievor’s services based on her understanding of the grievor’s performance, it is clear that the witness most able to present.the employer’s case is not available. ) We are satisfied that .- the elements of lathes have been established and it would be unfair to’allow this case to proceed to .a a hearing in the circumstances. . .’ For these reasons the grievance is dismissed. ’ Signed this. 9 thday of Loretta Mikus Vice-Chair . / 1 : I . . July., 1997. &i&q&s Michael Milich Employer Nominee '$1 Dissent" (without written reasons) J. Cairuthers Union Nominee