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HomeMy WebLinkAbout1990-0538.Wilkins.90-11-05 ~ I ;¡. " .~;l::. EMPLOY[S DE LA COUROrvNE .~ 'J ;~'~. '-.1· ONTARfO (I .. ". CROWN EMPLOYEES DE L 'ON TA RIO ,., ,1 GRIEVANCE COMMISSION DE 1111 SETTLEMENT ~ REGLEMENT . BOARD DES GRIEFS 180 OUND"-'S STREf;T WEST, SUITE 2100, TORONTO, ONT,.-,RIO. MSG IZ! TELEPHONE:/rtLEPHONE: (4f6J 326-f388 180, 'WE DUND....S OUEST, SUREAU 2/00, TORONTO ¡ONí,,-,RIO¡. M5G lZ' F....CSIMI!.EITELECOPIE: (416) 326- f3P6 538/90 IN THB MATTER OF AN ARBITRATION Onder THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SE'r'1'L~KENT BOARD BETWEEN OPSEU (Wilkins) Grievor - and - The Crown in Right of ontario (Ministry pfLabour) Employer I I ,BEFORE: s. stewart Vice-Chairperson J. c. Laniel Member A. Merritt Member POR THE B. Ahad GRIEVOR Grievance Officer Ontario Public Service Employees I Union FOR THE W. Kenny EMP~YER Counsel Hicks Morley Hamilton stewart storie Barristers , solicitors HEARING September 20, 1990 . . . p' '1 I!E,ÇISION The grievor, Mr. T. Wilkins, was ~mployed by the Ministry of Labour as:-,an employer advisor. In that capacity he was'responsi?le f~r_~dvising empl?yers with respect to wOfker~' cornpen~a~ion matters. H~ w~~ ~ ~. c.J.... discharged f~orn.his emplo~~ent by l~ttei dated June 15. 1988. Mr., Wilkins filed a g:r:ievance dated March 26, 1990 in which he àlleges, t~a.t his, dischargE7 was wi thou t ju st ' . cause. In its replY~9 ~he grieva~ce,~ dated June 12. 1990, the Employer deni~d thè grievancè and also advised the Union that it was t~e1;:_~t~o:yerls~\ew that the delay in the·' filing of the grievanc'e.w~s. p~ejûdicial to its ablity:to , . . present its case. Attn~ oU~set 'of the ~earing i~. this ~ .. - --- -- . -.......:.&. ,.. matter Mr. Kenny pursued this objection, arguing thåë there' was prejudice to the .·Employ~r' s. åbility .t9 'present its case d'l.:e t.o the delay in the _,.~i,l~ng o~ t the grievance, and that the grievance should be denied on·t.his basis. Mr. Kenny advised the Board ,~hat ~t.he . Empìoyèr wa's" unable to loca'te a . witness who was dire~tly,in~olved ).nthe rnàtter giving rise ~. ". . ..:;::_ r ~ ' . r' to Mr. Wilkins I discharge .O'n beh,alf of the Union, Ms. . '";"" _~ . .. r.. . ~~. Ahad submitted that t~.~ g:lî~ev.a2.'ce s~oul.d not be dismissed. ..,...J ,. . " . ~ . It was the Union's'position that th~ Employer was not. prejudiced in this instance and ~h~t it would be I appropriate for t~e Board to hear all of the 'evidence fròrn I the available witnesses prior to reaching any conclusion with respect to wheth¿i the grievance should be· denied on . 2 It the basis of any prejudice resulting from the delay in filing the grievance in this instance. The representatives of the parties agreed to provide the Board with the relevant facts and documents for the purpose of thi~ preliminary issue without the necessity of I adducing evidence under oath. As previously noted, Mr. Wilkins was discharged from his employment by letter dated June 15, 1988. The text of this letter states as follows: I It has been brought to my attention that you have engaged in outside employment that has , placed you in a serious conflict of interest I .. with your duties as a public servant, in par- ... ticular: 1. You entered into a contract to represent a client of the Ministry with regard to a Workers' Compensation Act matter in return for a fee of $15,000.00, contrary to Section 20(l)(b) of Regulation 881 under the Public Service ftct, R.S.O. 1980, as amended. 2. You made representations to the Workers' I Compensation Board on behalf of the client I and received and cashed a cheque in the amount of $76500.00 as partial fee for this service, contrary to Section 20(1) .(b) . 3. You failed to disclose this possible conflict of interest to your employer, the Ministry of Labour, prior to becoming involvedl and failed to seek the advice of your employer as required by Sections 20(2) and 20(3) of Regulation 881 under the Public Service Act. When given an opportunity by your manager to refute these allegations, you in fact confirmed them to be true. In addition to your conduct being ïn violation of the Regulation, it is conduct which would clearly bring the reputation of the Ministry of Labour into public disrepute. In light of the above information and in view of the . . ¡ .... . ~- '"t1' 3 serious violation of Sections 2(1)(a) and (b), 20(2) and 20( 3) 'ófthe Regulation. you .are dismissed from employment p~rsuant to Section 20(4) of the Regulatioh, effective immediàtély. . . " . . ., The matter,was the subject of a meeting between ~ -~ ~ :.I!l the grievor and the director of the Office of the Employer - ~ - ~. Advisor, , . Mr. J. Mandlowitz. Mr. Mandlowitz investigatéd ï:' , the matter and , received. information from representatives of . . . , ", the company involved in connection with the matter. ' ' The ... ~...'" .. , " grievor was confronted with this information. The IIconfirmationU ref~rred to in the June 15, 1988 . .. ~ . · .' ) letter of di~~har~e is a written memorandum prepared by the . . grievor, dated June 10, 1988. In that memorandum Mr. ¡ ~. . ,. ' . , - . -. . <- Wilkins admi~s to en~ering to a contract wit~ a company to , represent it i? connec~i9n with a penalty assessment under '. , s.91(7) of the Workers' Compensation AC~. He refers to "'., s various conversations that he had with representatives of .. ~ L.. · , the company prior to entering into this contract. According-- .. I , · ~:- { . to this memorandum, the person Who specifically requested - . / ' ,'.. ~·:1 ..: ,': . _ . him to repre~ent the 90mpany for a fee was a Ms. A. Loke r , ~... . . . -- .J. r from the company's personnel department. Mr. Wilkin-s', " - , '/ ., '. . ~ I ...~ ," memorandum indicates that it was Ms. Loker to whom he .. communicat~d acceptance of the request. : , . , . , ~ Mr. Kenny adv.ised the Board that he considers Ms. Loker to be a.cri~ical witness for the Employer's case. , However, j he has been unable to locate her. The company thât was . ~ [ ~ ,. 4 I involved in this matter has closed one plant and is in the process of closing another in order to move to Mexico. Mr. Kenny advised the Board that he was able ,to reach the company t s human resources manager who advised him that Ms. Loker is no longer employed by the company. He was aware that Ms. Loker had moved but was unable to advise Mr. Kenny as to where she was. The company had attempted to locate her some mOnths previous in connection with some matters arising in the company but had been unable to do .so. The grievor's explanation for failing;to file a I grievance for over twenty-one months was that at the time of his discharge he experienced a sense of relief because he had been assuming a heavy workload at the time. In August 1988 he was involved in an automobile accident which resulted in significant 'injuries and rendered him totally disabled for a period of twelve months and partially disabled for six or seven months. In February 1990 he I enrolled in a course at which time he spoke with a lawyer who advised him that the Employer was incorrect in its ! .i decision to terminate his employment. As previously noted, the grievance was filed on March 26, 1990. The relevant provision of the Collective Agreement is Article 27 which, in 27.8.2, provides for the filing of a grievance relating to a dismissal within' twenty days of the I . . þ. .~ ) f. I ( 5 date of the dismissal. Article 27.13 provides that if a grievance is not processed in accordance with the provisions of the Collective Agt"eement "it shall be deemed to be withdrawn U . Article 27.15 provides that time 1 imi ts I may only be extended by agreement of the parties in writing and Article 27.16 provides that the Grievance Settlement Board has no jurisdiction lito alter, change, amend or enlarge any provisÜ:m of the Co1iective Agreement". These provisions of the Collective Agreemerit~have been considered , . by this Board in the context of what is currently s.18 of' the Crown Employees COllective Bargaining Act R.S.O. 1980, c. 108., as amended, the relevant portion of which provides that: 18(2) In addition to any other rights of grievance under a collective agre~ment, an employee claiming, . . . - (c) that he has been disciplined or dismissed or suspended from employment without just cause, may process such matter ,in accordance with the procedure for final determination applicable under section 19. ,'" :~ r~ ~e seminal decision of the Grievance Settlement Board on this issue is Keeling 45/T8 (Prichard). In that decision the Board rejected the employer1s I~ubmission that it lacked . . ~ - . jurisdiction to deal with a grievance alleging an unjust dismissal which was not processed to arbitration in accordance with the time limits prescribed by the Collective Agreement. The Board· concluded that to accept . .. . ~ the employer's submission in this regard would be to . . . ~ . . 6 deprive the grievor of his statutory right to grieve his dismissal pursuant to what is currently s. 18 of the Crown . Employees Collective Bargaining Ac~. The decision of the Board in Keeling was upheld on judicial review and has been followed by this Board. In two subsequent decisions that were referred to us, Clements, 112/80 (Prichard) and Maghsoudi, 392/82 (Brandt) the employer raised the same issue that was addressed in the Keeling decision. The employer's submissions were again rejected. Mr. Kenny submits that all of these cases ~ were wrongly decided and referred to the:arguments set out in those cases in support of his position. Ms. Ahad argues that the cases were correctly decided and also submits that it would be inappropriate for the- Board to depart fròm the well established precedent that has been established with respect ~o this issue. In our view-, it is unnecessary to deal with this issue at length. Having reviewed the decisions of this Board referred to us we are of the view that the Keeling decision and the cases that have followed this decision were correctly decided. Accordingly, we reject Mr. Kenny·s submission that we lack jurisdiction to determine this grievance by virtue of the provisions of Article 27 of the COllective Agreement. We turn now to the Employer's alternative submission . . > & I -'. I r~' I I ,I. 7 that the grievance should be dismissed on its merits by I . .. I virtue of the prejudice it faces in light"of-the delay in . -- the filing of the grievance. As has been'recognized by this Board in the Keeling decision and the decisions that J have followed it, the ,circumstances of the' delay in a particular case may be such 'that the Board may ~etermine that the grievance should by dismissed. Such--a determination must be based' on the particular facts of each case, however the applicable principle is set out in " Shipping Federation of Canada (i967) 18 L.A.C. 174 " i' ~. ¡, (Weatherill) at p. 176 as ~ollows: It is our opinion that a board of arbitration . .., ought not to refuse to hear the" merits of a grievance except where it would clearly be impròper to proceed. Certainly the grievor was entitled tö a fair hearing of his case. A I'fair hearing" however must be fair to both sides. Because of. the union's delay in proceeding with this matter, a fair hearing has become impossible, since the employer has been substantially prejudiced in the presentation'of its case. It is clear to us that in these circumstances the matter is not arbitrable. We would emphasize that our' determination on this point is no mer~ "technicali ty"; the requirement of a fair hearing - lies at the very root of the notion of justice, and it is precisely this Which the union, by its delaYI has denied both to the. grievor and to the employ€·r. - This passage was cited with appr,oval in Clements, supra, where the Board dismissed a grievance alleging an unjust dismissal where there was a fourtee~ month interval between the time an employee was dismissed and the employer received notice of his intention to grieve his dismissal. At pp. 12 - 13 of the Clemente decision the Board states: I ¡ . . : ~ . 8 .The absence of notice of the grievance for fourteen months is so completely at odds with the type of procedures developed throughout labour relatio~s for the timely identification of grievances that we do not believe that it would be possible to hold a fair hearing in this case at this stage. No amount of evidence which we might hear at this stage could eliminate or outweigh the inherent prejudice done to the employer's position by virtue of the delay. Although on hearing the evidence we might be tempted to believe that we were seeing a fair hearing # we would never be in a position to know with confidence the nature of the evidence we would have heard in the absence of the delay. It is the inherent impossibility of restoring that confidence at this stage that makes it appropriate to dismiss the grievance on the merits.at this stage. The prejudice to the employer·s case and our ability to hold a fair hearing does not turn on the potentially increased liability of the employer. That dimension of the prejudice could be met through an appropriately designed remedy. Similarly, the retirement of one of the employer's witnesses does not constitute sub- stantial prejudice. The prejudice arises from the fact that as a result of the Union's fail- ure to file the grievance, the Employer was precluded from a full, effective and timely investigation of the discharge with a subsequent deterioration in the quality of the case that the employer would be able to put forward. Ms. Ahad submits that similar considerations do not apply in this case as the grievor signed a statement acknowledging that the allegations against him were true. In particular# he acknowledged that he had accepted compensation for work performed while employed as an employer advisor. In her submission, since Mr. Wilkins has acknowledged what he has been accused of, there can be no issue of the deterioration of the employer's case. Howeve r , Mr. Kenny advised the Board that the Employer does . . >- .. ~ " " . .9 not acceþt the grievor',s version'of the events as set out in his statement as entirely accurate. In particular. ,it questions his statement with respect to his representations about ñis ability, to act for the Client. Aside from the matter of the direct prejudice faced by the Employer which will be dealt with infra, we are satisfied that the . comments of the Board in the Clements case are clearly applicable to the case at hand. In that case there was a delay of fourteen months while in this case there was an even greater delay of some twenty-one ,months prior to the filing of the grievance. The Employer has had no notice of I ~ a claim against it and has not had an opportunity to . ":'" t The facts of this case prepare and preserve ~ts case. distinguish it from the cases referred to us by Ms. Ahad. , In this case, the direct result of the delay is the Employer's inability to locate a key witness. While, as Ms. Ahad pointed out. it appears that there are other persons from the company who could give evidence about the matter, it is apparent from the grievor's own-statement ) that it was Ms. Loker with whom the grievor was primarily involved in entering into the contract. We accept Mr. Kenny·s assertion that she is a key witness for the Employer and that the Employer is prejudiced in its ability to present its case because of its inability to find her. . 6 ~ . 10 . Ms. Ahad submitted that the Union should be given an I opportunity to try to locate Ms. Loker. We do not think it appropriate to grant that request. There is no reason to . think that the Union is any more likely to be able to locate Ms. LOKer within a reasonable period of time than was the Emplóyer or the company that she formerly worked for. The final submission of the Union that must be addressed is whether it would be appr~priate for the Board to hear all of the evidence relating to the matter prior to reaching a decision on the question of whether the grievance should be dismissed on the basis of undue delay. This particular matter was addressed in the excerpt from I the Clements decision referred to above. In that case, where the delay was some aeven months less than the delay , I in this case, the Board concluded that it would be ! inappropriate to hear all of the evidence relating to the grievance prior to dealing with issue of whether the grievance should be dismissed because of undue delay. The Board was of the view that because of the lack of notice of a grievance that would allow the employer to prepare and preserve its case, it was not possibile for the Board to be \ confident that the evidence that was adduced would be of the same quality and nature as the evidence that would have been adduced by the employer in the absence of such a I ! I I . . _..,'-~- -- ¡r.; ,~ . . ì- . 11 delay. The Board dismissed the grievance because of the undue delay even though, unlike this case, there was no - .... --- evidence of direct prejudice~such as the inability to locate a witness. In the circumstances of this case, where there has been a 'delay in excess of twenty-one months in f . the filing of the grievance and the Employer has established that it is directly prejudiced because of its inability to locate a key witness we do not feel that it is appropriate for the Board to hear all of the evidence relating to the dismissal of Mr. Wilk~ns prior to ruling on this preliminary issue. It is clear at this_point in the proceedings that the Employer has been seriously preju~iced ~ by a lengthy delay in the initial filing of this grievance. \ - While we recognize that a grievance relating to a dismissal is an extremely significant matter, after a careful consideration of all of the circumstances surrounding the delay in the filing of the grievance and the disadvantaged position in which the Employer would be placed if we required it to substantiate its decision to dismiss Mr. Wilkins at this point, it is our conclusion that the result of the excessive delay in filing this grievance is that it would not be possible to conduct a fair hearing in this matter. In the circumstances of this particular case the disadvantage faced by the Employer is not sin~ly a matter that can be dealt with by way of remedy , " . . I } (I f ~ I . ! i 12 . I in the event that the grievance ~ere ultimately to be successful. It is a matter which goes to the fundamental , I I right of the parties to have a fair hearing and the obligation of this Board to ensure that a fair hearing takes place. For these reasons, the gri;evance is dismissed. Dated at Toronto, this 5th day of November , 1990 ~{S\(Å;1\,{ - Vice-Chairperson - Member Q9l- J nt~ A. Merritt - Member " - I I I i . . . I