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HomeMy WebLinkAbout1993-1724.Longe.99-02-03Oh’-LARib EMPLOY& DE IA COURONNE CROWN EMPLOYEES DEL’ONTARK) GRlEVi4NCk COMMISSION DE SEllLEMENT RCGLEMENT BOARD DES GRIEFS. 180 DUNDAS STREET WESr, SUL?E 800, TORONTO ON M5G iZ8 180, RUE DLJNDAS OUES7; BUREAU 600, TORONTO (OM M5G lZ8 IN THE MATTER OF AN ARBITRATION Under TELEF’HONE/7iLh’HONE : (416) 326-1388 FA~SItdLE/T~tiCOPIE : (416) 328-1395 GSB # 1724193 CUPE 1750 - 93-30 , ., THE-CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Canadian Union of Public Employees Local 1750 (Wayne Longe) BEFORE FOR THE GRIEVOR FOR THE EMPLOYER EXECUTIVE SESSION - and - The Crown in Right of Ontario (Workplace Safety & Insurance Board - formerly Workers’ Compensation Board) Loretta Mikus James Carnithers Michael Milich Vice-Chair Member Member James K. McDonald Counsel Sack Goldblatt Mitchell Barristers & Solicitors Elizabeth Kosmidis Solicitor, Legal Services Branch Workplace Safety & Insurance Board October 16, 1998 Grievor- Employer On July 9, 1997 this Board dismissed the grievance of Wayne Longe alleging unjust termination from the Workers’ Compensation Board. The reasons for the dismissal are found on page 3 of the decision as follows: us to reconsider our earlier decision. At the hearing in March of 1997, we were satisfied that abandoned any retroactivity to obtain that adjournment. With respect, we are not persuaded that there has been any new information that would allow In determining whether a delay is sufftcient to invoke the doctrine of,laches or undue delay, there must be acquiescence by the party seeking to enforce a right and a change in position or 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 hearing in the circumstances. The Union has asked this Board for a reconsideration of that decision based on what it 0 considers to be new information the Union did not have at the time of the March, 1997 hearing. During that hearing we were advised that neither the Union representative or employer counsel had been at the 1994 hearing and that, as far as the Union could discern from the file, the earlier hearing had been adjourned on consent. Ms. Kosmidis, counsel for the employer, took the position that, while the adjournment was not contested, neither was -it on consent. Since that hearing in 1997, the Union has ascertained that the adjournment was, in fact done with the employer’s consent and that, it submits, should be a sufficient change in circumstance to persuade this Board to reconvene the hearing and hear evideuce on the merits. It also argued that there was no prejudice to the employer because the Union clearly the hearing had been adjourned without objection and with an agreement to forego any retroactivity. Knowing that the adjournment was on consent does not alter the fact that for at least two years nothing was done to advance this grievance and no reasons were given to . explain that delay. It was not any monetary prejudice to the employer that concerned us. Rather it was the fact that the delay, in our view, prejudiced the employer’s ability to meet its onus to prove just cause because of the death of its major witness. Therefore, we are not convinced that this is an appropriate case for us to exercise our discretion to reconsider our decision of July 9, 1997. Dated at Toronto this 3rd day of February, 1999. Loretta Mikus, Vice-Chair .’ . pp Michael Milich, Employer Nominee (I concur)