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HomeMy WebLinkAbout1992-0827.Difederico.05-02-22 Decision Crown Employees Commission de ~~ Grievance Settlement reglement des griefs Board des employes de la Couronne ~-,... Suite 600 Bureau 600 Ontario 180 Dundas Sl. West 180 rue Dundas Ouest Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. (416) 326-1388 Fax (416) 326-1396 Telec. (416) 326-1396 GSB# 1992-0827 1993-0413 1993-0414 UNION# 92E216 1992-0205-0008 1992-0205-0009 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano PublIc ServIce Employees Umon (DIfedenco) Union - and - The Crown In RIght of Ontano (Mimstry of the Attorney General) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION GavIn Leeb Gnevance Officer Ontano PublIc ServIce Employees Umon FOR THE EMPLOYER MelIssa Nixon Semor Counsel Management Board Secretanat HEARING October 28 December 1 & 2, 2004 2 DeCISIon I have before me three gnevances filed m 1992 by Ms S DIfedenco an unclassIfied employee In a gnevance dated January 15 1992, Ms DIfedenco claims that she was unjustly demed the classIfied posItIOn of Office and Systems Clerk and CashIer She competed unsuccessfully for two posItIOns located m the Ontano Court of JustIce (ProvmcIal DIVISIOn) at HamIlton whIch had been posted on November 12, 1991 AddItIOnal classIfied Office and System Clerk and CashIer posItIOns were posted at HamIlton later m 1992 Ms DIfedenco applIed for one of these posItIOns and agam was unsuccessful The text of her December 7 1992 gnevance relatmg to that competItIOn claims, "That I was not awarded the posItIOn of Office & Systems Clerk and CashIer CompetItIOn AG #109A/92 The posItIOns were awarded to mdIvIduals wIth less aggregate servIce ThIS IS a vIOlatIOn of the collectIve agreement 3 15 1 and any other relevant artIcle of the collectIve agreement, mcludmg artIcle (A) Al 1 Al 2,43 25 1 -last paragraph." The Umon advIses that the reference to ArtIcle 3 15 1 raises a converSIOn Issue and the reference to the other artIcles raises allegatIOns of dIscnmmatIOn and harassment. By letter dated December 7 1992, Ms M. Hudacm, Actmg Manager advIsed Ms DIfedenco that her unclassIfied contract would termmate on December 21 1992 and, m effect, that It would not be renewed. In a gnevance dated December 15 1992, Ms DIfedenco challenged what she charactenzed as her unjust dIsmIssal Ms DIfedenco was gIven another unclasSIfied contract some tIme later and contmues to work as an unclasSIfied employee wIth the Mimstry m HamIlton. 3 There IS no dIspute that the three gnevances were referred to the Gnevance Settlement Board In a tImely manner The three gnevances appeared on a 1998 lIst of gnevances to be addressed dunng the backlog project. There IS no IndIcatIOn that the Employer raised a tImelIness Issue In connectIOn wIth the three gnevances at that tIme or whether the gnevances were addressed dunng the backlog project. The backlog project for thIS Mimstry was completed by early 1999 There IS no IndIcatIOn subsequent to that tIme or at any tIme that the Umon dId not Intend to pursue or wIthdrew the gnevances The three gnevances appeared In early 2002 on a lIst of gnevances to be scheduled for heanng In the JOInt file reVIew process Ms V NevIlle, Labour RelatIOns Consultant wIth the Mimstry testIfied that the Mimstry could have taken steps to have the gnevance scheduled earlIer I note that there were other gnevances filed In 1992 by unclassIfied employees workIng for the Mimstry at HamIlton that appeared on the lIst In early 2002 to be scheduled at JOInt file reVIew All of these gnevances, IncludIng Ms DIfedenco's gnevances, were scheduled for medIatIOn before me on Apnl 22, 2003 Ms J Fazakas and Ms L Usselman also gneved that they were unjustly demed the classIfied posItIOns of Office and Systems Clerk and CashIer that were posted on November 12, 1991 These two gnevances were wIthdrawn by the Umon at a subsequent heanng. On August 6 1992, Ms DIfedenco Ms Fazakas and Ms Usselman gneved separately that the Employer has not paid them at the appropnate progressIOn levels The Umon and the Employer agreed to defer these gnevances and they are now scheduled to be heard startIng on May 9 2005 The Employer has reserved the nght to raise a tImeless Issue WIth respect to these gnevances The Employer takes the posItIOn that the three gnevances filed by Ms DIfredenco In 1992 should be dIsmIssed based on laches or undue delay The Employer argues that It has been 4 prejudIced by the delay m schedulIng the gnevances for heanng and that accordmgly It would be unfair m the CIrcumstances for these gnevances to proceed on theIr ments The Umon submIts that the Employer has faIled to demonstrate that It has been prejudIced by the delay It also takes the posItIOn that the proceedmg should not be bIfurcated. In ItS VIew a decIsIOn on the laches Issue should be deferred m the CIrcumstances of thIS case untIl the ments are heard m order to better assess whether the Employer has been prejudIced by the delay In support of thIS latter posItIOn, counsel referred me to Re Hughes (1993) GSB No 172/92 and Re Wilson (1994), GSB No 279/93 After carefully consIdenng the submIssIOns of counsel, It IS my conclusIOn that the appropnate approach IS to reserve on the laches Issue at thIS stage of the proceedmg and to hear the ments of the gnevances Although I agree wIth counsel for the Employer that the facts m the two cases referred to above are dIstmgUIshable from the facts before me, It IS my VIew that the CIrcumstances of thIS case stIll warrants thIS approach. I am not prepared at thIS tIme to conclude that It would be unfair to reqUIre the Employer to address the ments of the gnevances In the umque CIrcumstances before me, I am satIsfied that the best way to address the Issues ansmg from these gnevances, mcludmg the Issue of delay IS to hear the ments Accordmgly the RegIstrar IS dIrected to set these gnevances down for heanng after consultmg wIth the partIes for the purpose of addressmg the ments of the gnevances Dated at Toronto thIS 22nd day of February 2005