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HomeMy WebLinkAbout1992-0172.Hughes.93-04-07· ONTARIO ' EMPLOY~-S DE ~- "..' CROWN EMPLOYEES DE L'ONTARIO . . ~" GRIEVANCE C,OMMISSION DE SETTLEMENT ' REGLEMENT BOARD DES GRIEFS' '/80 OUNDAS STREET WEST, SUITE'2100, TORONTO, ONTARIO. M5G lZ8 " TELEPHONE/T~L~'PHON~: (416i 326-;388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO). MSG 1Z8 , FACSIMILE/T/~-LL-'COPIE ., (4'/6) 326-'/396 · !72/92 -: TN THE I~TTER OF 31~ ARB1'TI~T'rON Under THE CROWN EHpLOyEES COLLECTIVE B~GHIN'rNG · BeEore THE GR'rEVHNCE SETTLEMENT BOHRD BETWEEN OPSEU (Hughes) Grlevor - &nd- ~he Cro~n in Right o~ Ontario (Ministry of Labour) Employer BEFORE: A. Barrett ' Vice-Chairperson E. Seymour Member D. Montrose Member FOR THE K. Whitaker UNION Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE. C. Slater EMPLOYER Senior Counsel Legal Services Branch Management Board of Cabinet HEHRING March 8, 1993 DECiSiON This decision concerns a preliminary-issue raised by' the employer. The grievance dated January 21, 1992, reads: "I grieve that the employer, by forcing -.me into resigning, and not recognising my request fOr leave of absence'on compassionate grounds constituted unjust and .improper dismissal." .. ............~. The..impugned resignation took place some three years and two .... ...........~,~.:.. months'prior to the grieVance being filed. The employer submits .''-:~ ........ that'-the~grievanCeshould.be dismissed for delayi, relying.uPon the ..... ... ..... doctrine of laches, and asserts real prejudice from the passage of time due to the death of one of its key witnesses.. It is the position of the employer that if the grievor did not resign, then there were grounds for his dismissal and he would have been dismissed had he not resigned. The person wh° would have made the recommendation to dismiss him, a Mr. Whiting, suffered a lengthy terminal illness and died about four weeks before our hearing date. For at least-the last six months .'of his life, Mr. Whiting would have been' unable to give evidence a~ an arbitration hearing. Mr, Whiting was at the meeting where the resignation was submitted, along with two other members of management; being the grievor's immediate supervisor and a human resources person. The human resources person has since retired from the public service, but is- healthy and living in Toronto. The grievor's immediate supervisor is still employed in the public service and available to give evidence~ The employer says that even though the other tWo participants at the meeting could describe it, it was. Mr. Whiting. .who would have made the crucial recommendation to dismiss if it had come to that, and his reasons for taking such action would have been critical to the 'emPloyer's case. In addition,'if Mr. Whiting- were available, he could testify, to the fact that the grievor telephoned him some weeks after his resignati6n asking for a reference. There were no.witnesses to this conversation, and the employer argues that this evidence would be critical in allowing '.~he B0~rd'to ass~ss~he grievor's state of'mind'with'~eSPectlto the' Validity of his resignation. Employer Counsel asks us to follow ~.:..:~ ..-. Clements, GSB ~112/80 (Prichard), and conclude~that such a. leng~hy delay of necessity prejudices the employer irrevocably from being able to investigate, prepare and present its case. In the Clements · . case there was' a 14-month delay in filing a grievance against a dismissal, but all witnesses were still, availabler. There the board found at pages 12-13: "...The absence of notice of the grievance for fourteen months is so completely at odds with the. type of procedures developed throughout labour relations for the timely identifidation 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 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 ~iability 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 substantial prejudice. The prejudice'arises from the fact that as a result of the Union's failure to file the.grievance, the employer was prejudiced from a full, effective and timely investigation .of .the discharge with a subsequent deterioration in the quality of the case that the employer could be able to put forward. This prejudice is not contradicted by Mr._Kyle's testimony that he.was able to recall the.discharge and that documents Were still available. What has been lost by the absence of a timely investigation and consideration of the case~ cannot now be known. As a result, despite Mr. Kyle's self- perception, the reality is that the employer's position has been irreversibly prejudiced." It is the position of the union, and it Wishes to adduce evidence to th'e effect,-.that the grievor was so impaired by mental~ illness and 'substance abuse at the time of his purported resignation that he. did not have the ability to understand the consequences of his actions. Furthermore, he did not'regain the ability to think clearly until the Fal~l of 1991~ when he decided that his resignation, had been imprOperly extracted from him and immediately set about getting union assistance to file the grievance. 'Given this"'mental illness, says ~the union~ the grievor could not have acquiesced in foregoing his legal rights, and acquiescence is a necessary element or precOndition for the application of the doctrine of laches, 'as identified by the Divisional CoUrt in' Re Parking Authority of Toronto and Toronto Civic Employees' Union Local 43, Canadian Union of Public Employees (1974) 40.R. (2d) 45. ~ The union' also argues that any decision t° di§miss for delay Should not be made until after all of the evidence.has been heard. Substantial prejudice through delay goes to the.merits of the case and can be grounds for dismissing the grievance, bUt the Board should first hear the evidence to see if actual prejudice· exists. Union counsel notes that the grievor's immediate s~pervisor would be in a much better'position to testify about the g.rievor's day- to-daY behaviour than Mr. Whiting: he worked out of the same office in Kitchener as the grievor, and Mr'. Whiting was headquartered in Toronto and did not see the grievor on a regular basis. Further~ grievor's request for a reference tetter were lost, it would not affect the outcome of t~e case because it is the position of t.h~ grievor that his mental incapacity continued for years after the resignation. The Union wishes to adduce evidence that the grievor was under the care of his family doctor and a psyChiatriSt at the time of his resignation, and that one of the living management witnesses.was aware of it. It is further alleged that there was'no union representative present at the "resignation meeting" which was convened to discuss an'~eXpense and attendance fraud perpetrgted by the grievor. This Board set aside a resignation where i~ found that the grievor lacked the mental capacity to resign even though the psychiatric evidence in support of his claim was not obtained until much later, and there was nothing in the grievor%s behaviour to indicate to the employer at the time of his resignation that he was 5 ' ~suffering from a mental illness. (Mantha, GSB #423/85'(Verity)) In that case the employer's preliminary motion to dismiss the grievance for six-months' delay was denied. In a preliminary decision a different panel of the Board concluded: "While a six- month delay might be regarded as lengthy, it is not gross in the sense of being a matter of a year or more. Moreover, the evidence leaves little'doubt that the delay occurred at a stressful time in the grievor's life, i.e., when he was standing criminal trial on charges stemming' from work-related misconduct. It might be said that this factor would not be sufficiently strong to justify taking jurisdiction of the merits where the evidence disclosed that the delay occasioned prejudice to the employer; however,, here, no such prejudice was shOwn.'' (Mantha, GSB 9423/85 (Roberts)) It has ~now been over four years since 'the grievor's resignation and the employer.has only known since the Second step grievance meeting that the grievor plans to intr6duce evidence of mental incapacity. We' are concerned about the employer's ability to reSpond to this evidence. However, as was pointed out by union counsel, even if the employer'had been advised Shortly after the ~esignation of the claim of mental incapacity, it could not have required the grievor to be independently assessed by its own psychiatrist and would have had to challenge the union medical evidence indirectly with medical evidence of its iown. The employer is arguably in no worse a position now than it would have been then with respect to this medical rebuttal evidence. With respect to Mr. Whiting'~s evidence, we do not think it is critical to the ~employer's case,'although we cannot say that' with certainty until we hear the evidence. We have concluded that it would be premature to dismiss this grievance for delay at this 'stage of the proceedings. We will reserve our decision on that issue until we ~ have heard the evidence. If the grievor is successful in proving that he was so impaired by mental illness that he did not have the ability to comprehend the consequences of his actions over a .very lengthy period of time, then the foundation for laches, i.e., his acquiescence, will not have been made out. In addition, it is only after-the hearing of'evidence that we.will be in a position to properly assess the extent-of the prejudice to t,he employer that the delay has caused. Accordingly, we will hear the case on its'merits on dates t6-~ be set by ~the Registrar. Dated at Toronto this ?th. day of April, 199.3. , A. Barrett, Vice'Chairperson E. Seymour,,~ Member' D. Montr0se, Member