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HomeMy WebLinkAbout1990-0221.Boldt.90-11-05 ~ _~ -r:"'~ ~ -- ONTARIO EMPLOYES DE LA COURONNE ~ ~:--......;.--~ ....'-.-. ~ :',",-, CROWN EMPLOYEES DEL'ONTARIO " J 1111 GRIEVANCE CpMMISSION DE '/ - DE 2^ IO"a .n_ SETTLEMENT REGLEM,ENT "'~?, ~ ,,;; ,. ")~'~} BOARD DES G ,~ ':>.:. !!'r!".~,,, ~'~'"_ ~ .' 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5 IZ8 JII\ N ~ G TELEPHONEITËI.ÈPHONE: (416) 326-1388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO IONT ARID}, G IZ8 a . . E ~AC1MILE ITÉI.ÈCOPlE: 1416} 326- 1396 'fC 2 ' BIlIEV..{: , IJ /990 221/90 lYe/: All. AND NEGO~/NISrlfArlo. , IN TBB HATTBR OF. All iiIleÏoW Under THB CROWIf BHPLOYBBS COLLECTIVE BARGAINING ACT Before THE GRIBVAIICB SB'1''1'LBHBNT BOARD BBTWEBN , " , OPSEU (Boldt) Grievor - and - The Crown_in Right of~9ntário (Ministry 'of Naturar'ResoUrces) - Employer ,\ BEFORE: R. Verity Vice-Chairperson J. c. Laniel Member M. 9'Toole Member FOR THE R. Anand GRIEVOR Counsel Scott & Aylen Barristers & Solicitors FOR THE S. McDermott BKPLOYBR Counsel Hicks Morley Hamilton stewart Storie - Barristers & Solicitors DARING: September 11, 12 1990 . ..... ~ - 2 - - ., - ---- DE,CISlON ,..-'" ~.~- - - .,,>., ,...',.. :'\.;'\ ~. ..' \ I\. ' , H~ .... ~v~ " ; . '1 J r' "; .' " , ,1'1. (... ~ ~ . ~ This is an unusu,a1.;,c~se'~-' The grievor, Blake Boldt, worked at the .\.\~\ ~...., .~~~.\.~) ~ Ministry's Algonquin par'k Ois.t.r.4cf~\'~i·an E,quipment Operator until 1983 '" "\~-'.~'·'~;\';:~>"·í¡':l.::'f' ':;~---'- , (Classification Highwây Eq'U~ipJj¡ent"1)perator 3). His seniority date is April 24, .~ -"~ .-. 1952. As a result of~disability due to illness, he was placed on the Long Term Income Protection Plan (LTIP) on April 15, 1983 with benefits effective October 16, 1983. Since that date he has been unable to return to work and has continued to receive LTIP benefits. , , " , On March 8, 1990, Mr. Boldt filed a grievance alleging improper classification as Highway Equipment Operator 3 from 1974 to 1983. The remedy requested was proper classification with. full retroaç,1;i.vitý·. Shortly after filing . ,." ~ the grievance, Mr. Boldt died on April 11, 1990. \ At the hearing, the Union contended that the grievor should be reclassified as Highway General Foreman 1 or alternatively the Board should order that the Employer find or create a proper classification. Union Counsel amended the settlement to request a remedy 20 days prior to the filing of the grievance. At the outset, the Employer advised the Board that it had a lengthy preliminary objection to jursidiction which, for the most part, related to the timeHiness of the filing of the grievance. the Union urged the Board to hear the evidence of four witnesses who had travelled a considerable distance from Whitney, Ontario. To accommodate the Union's request, it was agreed to proceed to hear . ,. '-f ,. .. - 3 - evidence on the merits and to hear the preliminary matters as part of final ...- --- - . submissions. The Union called four witnesses: John Brown. Jack Johnson, Elwood Wojcik and Carl Dubreuil. Al1 were seasona1 employees who had worked with the grievorfor varying periods of time prior to 1983. Dennis Luckasevitch was the only witness' to testify for the Employer. Mr. Luckasevitch was Algonquin Park maintenance and , . development foreman between 1973 and 1984 and the grievorls irmnediate supervisor. The Employer raised a number of preliminary objections which can be briefly summarized. First. the undue delay in filing the grievance and the alleged' prejudicial effect of a seven year delay. Second 1 y ',' based on the t i mi ng of the grievance in 1990 Mr. Boldt held no position and accordingly had no statutory right to gtieve classifiçation. Thirdly, the_ grievance was in reality a claim for ~/' ,;..-'" increased LTIP benefits which was not within the jurisdiction of the Board because of the involvement of the insurer. ~o.urthly, with no jurisdiction to alter L TIP , .\ payments. the remedy was moot. The final objection involved a requested evidentiary ruling that the relevant time to review the grievor's actual duties and responsibilities was within a reasonable ,time frame surrounding the filing of the grievance. On the jurisdictional arguments, the Union made three basic submissions. First, this is a continuing grievance and accordingly there is no juriSdictional issue particularly when the remedy requested was 20 days prior to the filing of the grievance in 1990. Secondly and in the alternative, Mr. Boldt has a statutory right to grieve classification under s.18(2)(a) of the Crown Employees Collective ~ ~ , - 4 - Bargaining Act and that in spite of undue del ay"there was no evidence of actual .. ." - - prejudice to the Employer. Thirdly, in the further alternative, the Board's jurisdiction is founded on the grievance filed and the fact that evidence must be adduced seven years and beyond is irrelevant to jurisdiction. Briefly stated, Mr. Anand contends that the Board has jurisdiction and that the only question is whether or not there was undue delay causing prejudice to the Employer so as to disentitle the grievor to his statutory right to grieve classification. Numerous arbitral and legal authorities were submitted by the parties in both the prelminary matters and on the merits. , ---~ , " , In our opinion, the Employer's first prelminary objection regarding undue delay and prejudice effectively disposes of the matter before us. - - ' d An employee has the statutory right under s.18(2)(a) to file a grievance IIthat his position has been improperly_classified", The Collective Agreement in ,\ Article 27 contains mandatory time limits for the various stages of the grievance procedure. However, Vi ce-Chai rperson Pritchard in, Kee 1 ing and Mi ni stry of Transportation and Communications 45/78 found that the mandatory time limits were inconsistent with the statutory entitlement to grieve a dismissal and could not therefore act as an absolute bar to the processing of the grievance. Similarly, an employee has the identical right under s.18(2)(a) to file a classification grievance. - However, this does not mean that an employee who grieves under 18(2) has an unlímited right to arbitration years after the event. In the Keelin9 Decision, Mr. Pritchard makes that point at p. 21: ·1 ~ 4 - 5 - The conclusion that the mandatory limits in Article 27 are - , - ineffective to bar a grievance which can be brought ,within the right granted by section 17(2) does not eliminate the relevance of delay but rather makes delay an aspect of the merits rather than of jurisdiction.... I I In the matter before us, although brought in the form of a preliminary objection to jurisdiction, it would appear that the issue of undue delay is not an argument which affects jurisdiction, but rather it is a decision on the merits. However, as it was presented to us as the first objection we turn now to consider that issue. The effect of delay is stated in Brown and Beatty (3rd ED.) para. 2:321Ó-' at pp. 2-66, 67 as follows: ; Where the collective agreement does not provide for any time-limits, or time-limits w~ich ~e merely~dire2tory exist for the filing and processing of grievancés, a grievance may nevertheless be dismissed or declared to be inarbitrable because of undue delay. Barring a grievance from arbitration on the merits for that reason, however, is not a matter which goes to the jurisdiction of the ,arbitrator. Rather, declining to deal with a dispute on the basis of undue delay is akin to the equitable doctrine of laches as applied in civil courts, and the decision in each case is a matter for the arbitrator to make in his discretion after considering the effect of, and any explanation for, the delay......... As with the doctrine of laches, mere delay alone usually will not be a bar to arbitration. In each case the critical factor will be whether the delay caused prejudice to the party objecting. In this regard, arbitrators have held that the absence of an important witness, a change in position such as entrenching a practice, the destruction of important records, a lessening of the company's ability to deal with the dispute or to have a "fair hearing", caused sufficient prejudice to - warrant dismissal of the grievance. On the other hand, where - fault could not be attributed to the grievor and wher~ both the company and the union contributed to the delay, the grievance was not dismissed. I .. \ - 6 - . , - .. 9- _~_ ~ In the unusual facts of this case~ a seven year delay between the date of the grievor's last active employment in .1983 and the filing of the grievance in 1990 constitutes undue delay. One would have thought that any concern as to classification would have been brought by Mr. Boldt during the period of active employment. There was no explanation for the delay in filing this grievance. The key question is whether or not it can be said that the delay caused prejudice to the Employer in the presentation of its case. The Panel is satisfied that sufficient prejudice has been established with the seven year delay to make it virtually impossible to hold a fair hearing at this time. For example, the , " . grievor's personnel file has been cleared of most of its content. However ~ of greater significance was the oral testimony adduced at the hearing which satisfied the Board that there ~ere vague recoll~c~ions of the grievor1s actual duties and ...-". -....... ' responsibilities and fading memories' as to the precise circumstances and the date that his duties were modified in the 19701s. Mr. Luckasav;tch recalled that the - gríèvor's duties were modified because tif serious health problems and that the Employer made the decision~ on compassionate grounds, to leave the grievor in his present classification rather than placing him in a lesser classification. However, the evidence of the four seasonal employees was to the contrary. Indeed~ the evidence of all four seasonal employees was sketchy and the testimony of Mr. Luckasavitch was understandably vague in parts. Further~ it can be said that both parties were prejudiced by the unfortunate death of the grievor. In that regard theyrejudice to the Employer is the loss of the opportunity to cross-examine Mr. 801 dt.. " -': -. .. .-. , . - 7 - In the result, the Board finds the matter inarbitrable because of the . .-- -- inordinate delay in the filing of this grievance. . DATED at, Brantford, On~ario, this 5th day of November 1990. , -- ( ~..:- - - ..:::: ' ~: - , ,~-~ ' ~ '7 .............. ....... ....... ........... ... R. L. VERITY, Q.C. - VICE-CHAIRPERSON f1!¿ ~'d .... ...................... ...... ................ J. C. LANIEL - MEMBER l?1. ¿. .~'~ i-.......... ../.. f'., " M. O'TOOLE - MEMBER //1' -~<.- . - ~ ,\ , - I