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HomeMy WebLinkAbout1991-1102.Jankovics.93-08-31 ONTARIO EMPI..OY~S DE LA COURONNE ~ ·~ CROWN EMPLOYEI:S DE L'ONTARIO 1,80 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG lZ8 TELEPHONEITELEPI'foNrE: (4 f6) 32E,-r388 (SO, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO),. M50 1Z8 FAC$1t',41LE/TCL~COPtE : (416) -t26- 1396 1102/91 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE .SETTLEMENT BOARD BETWEEN OPSEU (Jankovics) Grievor - and The Crown in Right of Ontario (Ministry of the Solicitor'General) Employer BEFORE: W. Kaplan Vice=Chairperson E. Seymour Member R. Scott Member FOR THE A. Lokan UNION Counsel Gowling, Strathy &'Henderson Barristers & Solicitors FOR THE D. McKeown EMPLOYER Counsel. Hicks, Morley, Hamilton, Stewart,-Stori'e Barristers & Solicitors HEARING March 18, 1993 July 16, 1993 Introduction By a grievance dated June 17, 1991., Joseph Jankovics, a retired employee of the'Ministry of the Solicitor General, grieves that he was denied LTIP benefits for the period of December 22, 1982 to June 19, 1984. By w~y of remedy, Mr. Jankovics, seeks "to be reinstated on ,LTtP for the entire said period of time, and that all other benefits and pensions be paid for that period." During the course of these proceedings, it became clear that the period for which the grievor seeks relief begins in February 1983, not December 1982, as the grievor received Workers' Compensation benefits until February 4, 1983. The case proceeded to a hearing in Toronto, at which time employer counsel raised a preliminary objection. In brief, the employer took the position 'that the grievance should be dismissed pursuant to the doctrine of laches. The patties were agreed that no timeliness objection was made when the grievance was filed. The parties introduced an agreed statement of facts, and numerous documents were tendered in evidence. Viva voce testimony was also called. This award deals solely with the preliminary matter in dispute. The Agreed Facts 1' The grievor was employed as a Security Officer 2 with the Ministry of the Solicitor General beginning on May 11, 1977. He retired while on LTIP effective May 31, 1991. 2. On July 23, .1978, the grievor injured his right leg, and he was off. work intermittently until June 22, 1980. $. The grievor was off work as a result of this ~njury from June 22, 1980 to June 20, 1984 when returned to work as a security officer. 3. There was a brief period of time, between June 1980 and June 1984, when the grievor returned to work temporarily as part of a WCB assessment. Apart from that assessment, the grievor was away from work for four years. 4. ConfederatiOn Life denied the grievor LTIP benefits for the period December 2?_, 1982 to June 1.9,' 1984, as the grievor was not, in.its estimation, disabled for any and every duty of any gainful employment. 5. On May 1, 1984, the grievor was admitted to the WCB Hospital and Rehabilitation Centre for an assessment. He left the Centre on May 1.5, 1984, and was subsequently Certified by the WCB as fit to return to his regular duties. 6. The grievor returned to his regular duties as a security officer on June 20, 1984. 7. During the period between December 2_2, 1982_ and June 2_0, 1984, the grievor was considered by the employer to be on unpaid sick leave. 8. On September 16, 1985, the grievor filed a grievance (Jankovics 960/85 (Verity)), alleging-that the ,Ministry failed to provide him with employment · for the period-between December 1982 and June 1984: The settlement requested was compensation for wages and lost benefits.. On February' 20, (;': 4 (7.: 087, this grievance was dismissed. 9. On June 17, 1991; the instant grievance was filed, and on March 1 8, 1993, it proceeded to a hearing before the Board. . The Issue in Dispute The issue in dispute is whether the grievor was wrongly denied LTIP' benefits. Very simply, the gravaman of the instant grievance is that the grievor was not allo.wed to return to work for the period in question because the employer did not consider him fit; yet, at the same time, he did not receive LTIP for this same period when he was supposedly unfit to return to.work... ~ Evidence of Joan Crisford Joan Crisford testified on behalf of the employer. Ms. Crisford is the Manager of the Ministry's Human Resources Consultin9 Services, and she testified on the steps the employer would be required to take in order to prepare for this case assuming the Board took jurisdiction with respect to' it. Ms. Crisford testified that the employer would be required to locate and contact the gdevor's supervisors for the period in dispute. This task would be difficult because of the passage of time, and because of the many changes in organization and personnel that have occurred over the past ten years. Ms. Crisford testified that one of the grievor's supervisors is deceased, one is retired and tiving in Florida, and another is retired and living in England. Only one of 'the grievor's supervisors is readily available, and Ms. Crisford testified that this individual likely supervised the grievor only for a short period of time. In cross-examination, Ms. Crisford testified that she has reviewed the grievOr.'s file, and she noted that it is.extremely large and contains numerous documents, including approximately twenty relating to his. disability. Ms. Crisfor, d' does not have any reason to believe that any , documents have been removed from l~hat file, and she testified that it'is not Ministry practice to do so. In preparing to give evidence, Ms. Crisford did not contact any of the physicians named in the file, and' therefore could 'not express a view as to whether they would be able to attend before th~ Board and testify about the grievor's medical state during t'he period in question. Ms. Crisford was asked how the evidence of supervisors could assist in the determination of this case, and she testified that while the supervisors could not giv. e evidence about the grievor's medical conditionl they could testify about the physical and other demands of the security officer position, and about whether the grievor could meet those demands. Ms. Crisford also testified that a member of her staff contacted. Confederation Life in order to confirm certain dates. No effort was made, however, 'to determine the basis upon which the grievor had been denied LTIP. Evidence of Lynn Scott Ms. Lynn Scott testified. Ms. Scott has been a staff relations officer with the Ministry since ~992. Prior to that she worked as a classification officer. In her capacity as staff relations officer, Ms. Scott's responsibilities include contract and wage negotiation and administration of the Collective Agreement. Ms. Scott represents the employer at second stage LTIP grievance.meetings. These grievances concern the interpretation of Article 42.2.4 of the Collective Agreement. This article provides: Total disability means the continuous inability as the result of 'illness, mental disorder', or injury of the insured employee to perform any and every duty of his normal occupation during the qualification period, and during the first twenty-four (24) months of the benefit period; and thereafter during the balance of the benefit .period, the inability of the employee to perform any and every duty of any gainful occupation for which he' is reasonably fitted by education, training or experience.. Ms. Scott testified that in administering this article, she needs to know what duties the employee performed, and while some of this information could be obtained from a position .specification, and physical 'demands anaylsisl if available, the evidence of a 'supervisor was critical, because the supervisor could instruct the employer as to exactly what duties the grievor would have been called upon to perform in his job.. Ms. Scott described for the Board the process she currently f°llows in administering Article '42.2.4 of the Collective Agreement, and although the language of that provision has remained the same, she agreed that she was not responsible for its administration during the period when the grievor was denied LTiP benefits. Ms. Scott also advised the Board that in preparation for this case, she communicated with her contact at. Confederation Life and was advised that the grievor's file was available, although stored in archives. She was told, however, th'at the person who made the decisiOn to deny the grievor LTIP benefits was no. longer employed by the carrier. In cross-examination, Ms. Scott agreed that she had no personal knowledge of how claims were assessed in ~t982. She also testified that she did not know the name of the Confederation Life employee who reviewed the' griev0r's file, nor had she made any effort to learn that person's name".or to contact him or her. Ms. Scott also testified that it is the insurance carrier who makes the final determination of whether an emPloyee is eligible under either branch of Article 4;~.;~.4 of the Collective Agreement. Evidence of Joseph Jankovics The grievor testified on his own behalf.. He told the Board that he began work with the Ontario Public Service in 197-7, and ,occupied the position of Security Officer 2. Before joining the Public Service, the grievor advised the Ministry that he had previously been injured at work, and those injurie~ date to the early 1960s. The grievor testified generally about his injuries, about their reoccurrence because of the demands of his duties as a Security Officer, and about his ~/arious efforts to receive accommodation and compensation for them., For example, in May 1983, t'Se grievor,filed a Human Rights' Code complaint alleging that he was being discriminated against because of his handicap. After filing this complaint, the grievor received a letter from Shirley McVittie, a union benefits counsellor, stating that "at the recent Joint Insurance Benefits Review Committee, the employer confirmed that a job search has been 'instituted.for you on a service-wide basis and you will be notified as soon as an opportunity arises." Later, the grievor agreed to a settlement of the Human Rights complaint, and this settlement, dated October 18, 198:~, provided for his return to work.- The grievor testified that this. settlement did not end his concerns about the treatment he had earlier received, including the fact that he-had not been given a job or compensation for the period, during which he was absent from work. The grievor testified about his ultimately futile attempts, to meet the Superintendent of the Ontario Government Protective serVices to discuss these issues, and some documentary materials corroboratin9 this assertion was introduced into evidence. The grievor also filed a grievance. That grievance, dated September 16,1985, states that the Ministry of the Solicito~ General failed to provide him with employment for the period between December 1982 and June 1984. The remedy sought was for the Ministry to pay all wages plus interest and benefits without loss of seniority. As already noted, this grievance proceeded to a hearing before the Board, which in due course rendered an award. As this case, hereafter referred to as 960/85, figures prominently in the argument that follows, it is useful to briefly describe its contents, reasoning and result. The employer, in 960/85, raised a preliminary objection as to arbitrability in that the grievance was out of time. The~employer argued that the time limit provisions of the Collective Agreement were mandatory, and inasmuch as the grievance was filed long after the expiry of those time periods, it should be dismissed. The union argued that the grievance then before the Board was a continuing grievance, and that it could not have been filed earlier than it was because the grievor did not possess {he necessary · information. The Board, in 960/85, made.the following, findings: There is no dispute that the Grievor was off work with a disabling leg injury from June 22, 1980 until June 20, 1984. As a resuit of an Employer medical examination on , September 30, 1982, the Grievor was diagnosed as ' permanently unemployable as a Security Officer. However, on December 13, 1982, the Grievor presented a medica~ certificate from his personal physician to the effect that he was fit to return to regular duties.. The Grievor was not allowed to return to work until June 20, 1984. It should have been clear to the Grievor, when his. submissions of'a favourabte medical certificate failed to achieve the desired effect, that he should fi~e a grievance protesting the Employer's position. However, he chose instead to' pursue other remedies. In May he filed a complaint against the Ministry to the Ontario Human Rights Commission alleging discrimination in the Ministry's failure to allow him to return to work. Subsequently, in November of 1983 he filed an appeal to the Worker's Compensation .Board. This Board is satisfied that the Grievor had a potential grievance of a continuing nature against his Employer during the period December ~ 3, 1982 to and including June 19, 1984. The Board.is not persuaded that a Grievance filed subsequent to his return to work on June 20, 1984 could be properly described as a "continuing breach". In fact, the Grievance was filed some 15 months after his return to work on June 20, 1984. In our opinion, the Grievance is entirely out of time and cannot withstand' the mandatory time limits con.tained in Article 27 of the Collective Agreement. Accordingly, the Board in 960/85 dismissed the grievance. The grievor testified that after his grievance was dismissed, he continued to seek compensation, and wrote several letters, spoke to several people, and attended at Ministry offices, in pursuit of this goal. In 1991, as a result of his continuing efforts he learned, for the first time~ that a ~ decision of-the Di~/isiona! Court made possible the filing of grievances with respect to the denial of LTIP. After learning that he now had a legal right to grieve this denial, the instant grievance was filed. As is normal practice, the instant grievance was considered at a meeting of the Joint Benefits Review Committee, On May 29, 1991, the grievor was sent a letter stating that "the Committee agreed with the carrier's decision as to date, no test results or investigative reports support total disability for any occupation past definition change date." In the result, the instant grievance was denied'. The grievor testified generally about the doctors he consulted during the period in question, and advised the Board that his physician, as well as the I~inistry's doctor, .are still in practice, and are presumably able to give evidence. In cross-examination, 'the grievor was asked a number of questions about why he did not file a grievance respecting his denial of LTIP at the time he was informed of that decision, and he reiterated his earlier testimony about his various efforts to obtain compensation including the filing of a Human Rights complaint and the launching of a Workers' Compensation appeal. The grievor testified that he has filed a number of grievances about various matters during the course of his pub!lc service employment, and agreed that while he has not been "afraid to file grievances," it is "the government that has forced him into doing so." When asked why he waited so long to file the instant grievance, the grievor testified that he lives in Madoc, and has also been out of the country. He told the Board that he filed the instant grievance as soon as he learned that he could. The grievor was also asked if he could be more precise abou. t when he saw different doctors, and it was clear that he could not give exact dates. He agreed that he did not have any personal knowledge whether the MinistrY's doct'or, whom he referred to as having assessed him in 1982 or ~ 983, was still .in practice. In this regard, the grievor could not take issue with the ~employer's assertion that that doctor had retired. The grievor's opinion about his availability was based on the fact that his name was still listed on a lobby information 'board. It should be noted that the grievor was frequently vague in his recollectiofi of events. The evidence having been completed, .the matter turned to argument. Employer Arqument Employer counsel argued that the Board should dismiss, the grievance for one of two reasons: first, the delay in bringing this grievance forward to arbitration has caused some substantial prejudice to the employer, and pursuant to the doctrine of laches, the grievance should be dismissed; and second, that the subject matter of the grievance has already been decided by the Board, and pursuant to the principle of res judicata, the grievance should be dismissed. Counsel dealt with both objections in turn. The Doctrine of Laches Referring to the evidence of the two employer witnesses, counsel argued (.r.. 12 that the employer was seriously prejudiced in this case because one of the grievor's supervisors was deceased, and three others were retired, two of whom were living out of the country. Counsel argued that their evidence was essential with respect to the nature of the grievor's job, and his, ability to.return to work. Moreover, counsel noted that the grievor's Confederation Life file had been archived, and that the person .who made the decision denying the grievor LTIP was no longer with that company. Counsel also argued that the delay in this case was caused by the grievor, and that this grievor was experienced in filing, grievances, and, moreover, that he was well aware many years ago that he had been denied' LTIP. Counsel noted that the grievor knew in December 1982 Shat he would not be receiving LTIP, and he also knew when his WCB benefits ran out the ' following month. Moreover, the grievor also knew in February 1987, when the Board issued ~ts award in 960/85,. that 'he would not be receiving compensation for the period in question, and counsel 'questioned the' lengthy and unsatisfactorily explained delay between the release of that award 'and the filing of the instant grievance. Very simply,, counsel suggested that no adequate explanation for the delay of some four years had been provided, and argued that, given this lapse of time, and the major changes in personnel that have taken place in the Ontario Government Protective Services, that the employer had been irreversibly prejudiced in the result. Counsel argued that not only was the employer prejudiced by the fact that most of its key witnesses were not readily available, it was also prejudiced by the fact that the medical records had become quite stale. Had the grievance, been filed in a timely manner, counsel suggested, the employer could have gathered fresh evidence, and also would have had the (-::.' ' 1 3 ' opportunity to conduct its own investigation to thoroughly prepare for this case. Counsel argued .that this opportunity had been lost because of' the grievor's delay in bringing forward his case, and that' this delay effectively §oes to the merits of the matter in disp~ute because it has the result precluding the employer from receiving a fair hearing. In support of his argument that the grievance should be dismissed pursuant to the doctrine of lachesl counsel referred to the Collective Agreement and the stated intent of the parties to "adjust as quickly as possible any complaints or differences" between them, as well as a number of decisions including Keeling 45/78 (Prichard), Re Clements and the Crown in Right of Ontario (LCBO) 2_8 L.A.C. (Zd) 2.89 (Pricl~ard), B01dt 2.21/89 (Verity), Black. 1795/89 (Stewart), Re Oil, Chemical & Atomic.Workers, Local 9-672.~ and Dow Chemical of Canada Ltd. 18 L.A,C. 50 (Arthurs), Re lnt'L Longshoremen's Ass'N, 'Local 1654' and Shipping Federation of Canada, Inc. 18 L.A.C. 1 74 (Weatherill), and Re Cybermedix Health Services Ltd. and OPSEU, LOcal 544 11 L.A.C. (4th) 334 (Brown). Counsel reviewed each of these decisions in turn, and the 'general principles set out in them. In brief, all of these awards stand for the proposition that grievances should be quickly flied and referred to arbitration, and 'that where one party has delayed in doing so, and'where the right of the other party to a fair hearing is prejudiced in the result, an arbitration board may decline to hear the merits of a particular grievance. While each of these cases presents a different sets of facts, delays rendering impossible the full investigation of a grievance and prejudice caused 'by the unavailability of key witnesses and records are · among the reasons found to warrant the dismissal of a grievance. Counsel argued that these reasons were also present in the instant case, and urged that it too be dismissed. Res Judicata Counsel also argued that the grievance should be dismissed because it was identical in issue and 'in relief requested to an earlier case, the 960/85 decision, which has already been decided by the Board. Counsel referred to a number of authorities including Re Pharma Plus .Drugmarts Ltd. and United Food & Commercial Workers, Local' 175, 2.0 L.A.C. (4th) 251 (Barton), Re Canadian Union of Public Employees,. Local 2_07 and City of Sudbury 1 5 L.A.C. 403 (Reville), and Anderson et al 346/89 (Kelter). In the City of Sudbury award the Board held that the authorities are legion that a board of arbitration has no jurisdiction to consider or, alternatively, that the grievor and his or her union representatives are barred and estopped from processing a grievance which is identical to a former grievance filed 'by the grievor and either withdrawn, abandoned or settled, or determined by a board.of arbitration. Some of these cases proceed on the basis of estoppel and others on the principle of res judicata, but regardless of the approach taken, the authorities are overwhelming that a board of arbitration has no jurisdiction to entertain such a second grievance .... There is also substantial authority to support the proposition that an arbitration board has rio jurisdiction to determine a grievance which, though not identical in wording and form to a former' grievance. lodged by the same grievor, is identical in substance (at 403-404). Counsel argued that the instant grievance more than met this tesL and that it should, accordingly,, be dismissed. Union Argument Union counsel argued that the employer's preliminary objection should be dismissed for two reasons: first, because there was no prejudice '~aused to 'the employer by the delay, and accordingly the doctrine of laches could not apply, and second, becaUse the instant grievance and the earlier one were not the same in either form or substance, and so the doctrine of res judicata could also not applY. Turning first to the doctrine of laches, counsel referred to the Supreme Court of Canada's decision in Canada Trust v. Lloyd et al [.1968] S.C.R. 300, where the court was ca~ted upon to consider, among other things, the applicability of the doctrine in a.case involving a delay of some 43 years. The court held that the length of the i~elay, considered alone, did':pot determine what equitable relief should or should not be granted. In his reasons for decision, Mr. Justice Hall cited two other cases for the proposition that in determining whether a remedy should be granted or withheld, the court must examine the nature of the acts done in the ' interval, the degree of change that has occurred, how far those changes' have affected th~ parties and where lies the balance.of justice and injustice (at 305). Counsel argued that this same principle applied to the instant case, and when properly applied, the employer's recourse to the doctrine of laches could not and should not succeed. Counsel also noted that .in the arbitration context, the cases indicate that "mere delay" is not sufficient to support the invoca'tion of the doctrine; there must be delay and .prejudice. Counsel argued that the' evidence did not establish any prejudice in this case. Counsel questioned what relevant evidence the grievor's supervisors could bring to this case given the fact that it involved a determination by others of the grievor's medical fitness · to return to work. Counsel noted that the issue to be determined at the time in question was 'whether the grievor was able to perform "any and' every duty of any gainful occupation for which he is reasonably fitted by education, training or experience" and that being the case, counsel argued that the ' supervisor's evidence about what the grievor used to do as a security officer was not at all relevant to the carrier's apparent medical determination that he could perform some job. ~ Counsel pointed out .in any event that with the exception of the one supervisor who was deceased, the other.supervisors were available and could testify, and that one of these supervisors was still in the jurisdiction. Counsel' noted that the employe~ witnesses' made no effort to contact any of these .supervisors to determine their availability to give evidence in these proceedings. He also argued that the grievor could testify about his duties and responsibilities at the time in question (although as we have already noted 'in this award, it was apparen~ .to us that the grievor's recollection of events was often extremely vague), t~lore important, in counsel's view, was the fact that the documentation used by the carrier to deny the grievor LTIP was available, as' was, presumably, the person who made that decision, and here too counsel noted that' tlie employer made no effort to find out if this person .were available to give evidence. Counsel argued that the employer had not shown any prejudice to its. ability. to prepare itself for the defence of this case, and suggested' that the evidence established' that the grievor's claim had merit, and he :pointed in. this regard to the letter from t4s. McVittie to the grievor, the relevant portion of which is set out above. The fact that a service-wide job search failed to produce one job that the grievor could perform suggested, counsel argued, ' that he was Permanently disabted and eligible for LTIP. Counsel reviewed a number of the cases relied on by the employer, and he argued that each of these cases could be distinguished on their own peculiar facts. Counsel also suggested that while considerable time had elapsed between the denial of LTIP and the filing of the instant grievance, the'~ employer could hardly be described as having .been taken by surprise by the filing of. this grievance, and counsel referred to the evidence of 'substantial and different efforts by the grievor throughout the 1980s to obtain compensation for the period in question. Counsel also noted that in several other LTIP casesl there was no suggestion that the evidence of a supervisor about the nature of a particular position was in any way relevant to a determination of eligibility, and he referred to Rhodes 866/90 (Dissanayake) in support of this proposition. And counsel concluded this part .of his argument by pointing out that the earliest the.grievor, could hav~ filed this grievance was in early 1990 when the Board first took jurisdiction with re'spect to a claim of .this kind (see Sekhon 418/83 (Saltman). Counsel also took the position that the evidence established that the grievor filed his grievance as soon as he became aware that there was a violation of the'Collective Agreement (see The Queen in right of Ontario as represented by the Ministr~ of Correctional Services v. Ontario Public Service Employees Union and the Grievance Settlement Board (1990) 74 O.R. (2d) 700). In counsel's view, the employer's laches argument had not been made out, and he u~ged that this part of the pre)iminary objection be dismissed. With respect to the res jud~cata argument, counsel took the position that the two grievances were not the same. The 960/85 grievance was about the failure of the 'Ministry to provide the grievor with employment, while .the' " instant grievance was about the' denial of LTIP. Counsel noted that LTIP involves the obligation to .provide a disabled employee with benefits, and this was clearly different from any obligation to provide an employee with work. In counsel's view, simply because .the remedy sought in both grievances was similar was not a proper reason to apply the principle, of res judicata. Counsel pointed out that in each grievance, the grievor I~'as to prove entirely different facts in order to succeed, and this was a further. reason for distinguishing between them. Very simply, in c°unsel's submission, the two grievances involved different facts and different 'arguments, and they were, therefore, different grie~anqes. Counsel referred to Bent/Mahler 2091/91 (Waisglass) in support of this proposition, and noted that the only similarity in this case. was in the remedy reques, ted, and argued that similarity in remedy did not come close to satisfying the City of Sudbury test.. Counsel asked that this aspect of the emplOyer's preliminary objection also be dismissed. Employer Reply In reply, counsel noted that important labour relations principles were at stake in this case, and one of these principles was the stated commitment of the parties to the Speedy resolution of disputes. Counsel argued that the delay in this case was plainly at odds with that stated commitment. Counsel also argued that the evidence of the grievor's supervisors was extremely relevant because these were the individuals who could provide the employer with the necessary information about the grievOr's core duties and responsibilities. Counsel argued that the absence of these individuals clearly prejudiced the employer's right to a fair hearing in this case. Counsel also took 'the position that this prejudice met the requirements for the application of the doctrine of laches, and that the objection should, · therefo[e, be upheld. Counse~ noted that there w2s no evidence indicating that the grievance w~s meritorious, except the grievor's own se~f-interested evidence and the ~etter from kqs. N~cVittie. Other evidence of .prejudice included the fact that the §rievor's recollections were extremely vague, and that any medical evidence would be stale and out of date. - Counsel also argued that res judicata did apply in this case because the two .grievances were flip sides of the same coin - the matter had already been determined, and as such, sound labour relations principles dictated that the Board should decline to hear the case anew. Counsel suggested that the grievor and the union had'the opportunity and the obligation, when the first grievance was at the Board, to bring all Claims before it, including a~ternative c~aJms. 'The fact of the matter, in counsel's view, was that the union had failed t6 do so, and this was one more reason Why the Board should now exercise its jurisdiction and decline to hear this case. Decision Having carefully considered the evidence and arguments of the parties, we have come to the conclusion that the employer's preliminary objection should be dismissed. Clearly, there is a long delay in this case between the alleged contravention of the Collective Agreement and the filing of the grievance. Had we been satisfied that the evidence of the grievor's supervisors was critical to the determination of the issue in dispute, we would have likely been inclined to either dismiss the grievance or to only allow.' it to go forward subject to conditions that would compensate ,the employer for any financial liability it .would have had to incur to bring forward its witnesses, several of whom are retired civil servants living outside the jurisdiction. We are not, however, convinced of the ultimate relevance of this evidence given the fact that this case is about whether the grievor was fit, between Feb?uary 1 983 and June 1984, to "perform any and every duty of any gainful occupation for which he is 'reasonably fitted by education, training or experience." Not. only is this a determination that the grievor~s supervisors could not make, it is, on the evidence, a determination that was ma~le by the carrier, 'a,nd in determining whether it was properly made it is hard to see what material facts 'the grievor's supervisors could possibly add. As has been noted by other panels of this Board, the particular · circumstances of' each case must be considered individua?y, and the fact that there was a one-year delay in one case, and a seven-year delay in the ' other,' is not the deciding factor. What matters is whether the delaY has prejudiced one of the parties so as to preclude the possibility of a fair hearing. In 'our view, the key evidence in this case .is the evidence upon which the ca[rier determined not to award the. grievor LTIP given that this grievance concerns the denial of LTIP following the change of definition, not the obligation, if any, of the employer to provide the grievor with work. According to the testimony we heard, the carrier conducted the investigation and made the decision. The evidence that it used to make that decision is available. The propriety of the decision must be assessed on the evidence it had before it at the time it made the decision. T'he evidence in these proceedings' indicates that all of the medical records are. available, and so the passage of time has' not prejudiced the opportunity of the · (~ employer t.o investigate and prepare its case. If the evidence indicated that the' delay rendered impossible the employer's investigation 'and/or preparation of this case, or prejudiced it .in some other way, we would have upheld the objection and dismissed the grievance. There is no evidence of such prejudice to the employer by the delay in this case. There is also no reason to believe that the employer will not receive a fair hearing. And, as is We'/i established in the jurisprudence, for an .argument based on the doctrine of laches to succeed, some prejudice· must accompany the delay, tt is worth mentioning that the Board's jurisdiction to hear cases of this kind-was first set out in the Sekhon award, released on March 15, 1990, and the grievance was filed on·june ~ 7, 1991. The evidence also establishes that the' grievor made several efforts throu9hou;, the 1980s to bring his complaint over the denial of LTIP 'to the attention of the employer, and while his evidence to this effect was frequently vague, and while it may be·self-interested, it is confirmed by several exhibits. addition, prior to the issue of the Sekhon award, little purpose would have been served by the grievor filing a grievance taking issue with the denial of his LTIP claim. With respect to res judicata, we are Satisfied that while the' earlier and instant grievance arise out of the same set of facts, they are not flip sides of the same coin in that they raise two different issues to .be determined. We are in complete agreement with employer counsel that a party should not be permitted to split its 'case, and that the only way the grievance procedure can work is if the parties to it bring all related 'issues before the Board at the same time, even if they involve the assertion of alternative claims. In this case, however,, for the reasons given above, no useful purpose would have been served by asserting the LTIp claim when the first grievance was filed, as it was understood that the Board did not then have jurisdiction over that particular type of dispute. We are left with no choice · but to conclude that this case has not been already decided and is, > therefore, properly before .the Board. Having taken jurisdiction in this case, one final observation is appropriate. The union bears the burden of proving'its case, and the passage of. time 'does not diminish in any Way its evidentiary onus'- if anything, it may make it more difficult. Having heard some of the grievor's evidence, and having reviewed some of the relevant documents, including the' May 29, 1991 decision of the Joint Benefits Review Committee, it is clear that the union's evidentiary burden in this matter will not be an insignificant one. - Needless to say, in dismissing the employer's preliminary objection and in taking jurisdiction' over this case, we are making no findings whatsoever about the merits, if any, of the grievor's claim. The case will proceed on a date or dates to be set by·.the Registrar. DATED at Toronto this 31st day of August, 1993. William Kaplan · Vice-Chairperson '. ...d" z,.,," E. Seymour Member R. Scott ~4ember.