Loading...
HomeMy WebLinkAbout1980-0522.Robinson.83-01-07MEMORANDUMTO THOSE RECEIVING GRIEVANCE SETTLElYENT BOARD DECISIONS Subject: 522/80 Robinson The Board requests that all copies of 522/80 Robinson be replaced by the reprinted 2nd edition. The revised edition includes a portion of the text missing in the original issue. NOTE: 1. This does not affect the Board's 2. All first edition copies should b Toronto, Ontario January 7, 1983 &j+L H. F. Goss, Registrar IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Between: OPSEU (Gordon R. Robinson) ri - And - The Crown in Right of Ontario (Ministry of Health) Employer Before: M. R. Gorsky R. Russell J. H. Morrow Vice Chairman Member Member Before THE GRIEVANCE SETTLEMENT BOARD Grievor For the Grievor: G. Richards Grievance Officer Ontario Public Service Employees Union For the Employer: M. H. Campbell Counsel Legal Branch Ministry of Health Hearing: May 26, -1981 Adjourned: December 14, 1981 March 4, 1982 ;2- INTERIM DECISION Mr. Campbell, Counsel for the Ministry, in his written submission, relied on the defence of lathes in support of his position that the Grievor is barred from pursuing his claim, or that the Union, for the same reason is barred from pursuing the claim on behalf of the Griever; What is not in issue is whether the grievance was arbitrable when it was first heard by this Board on May 26, 1981. What has been alleged is that this Board ought to exercise its discretion to declare the grievance as being inarbitrable because of the failure of the Union to expeditiously proceed to have the matter heard following a meeting between the parties of July 8, 1981. This failure, which was not remedied until September 3, 1982, it is alleged, contains the factual elements which give rise to a defence based on lathes which this Board ought to recognize. That there has been a very long delay in restoring this case to the list of cases to be disposed of by arbitration is apparent. That this Board has before it the facts upon which to rule upon the defence of lathes is not at all clear. Lathes does not apply to a case where the claim has been properly brought and where, this having been done, no steps are taken to insure that a hearing is scheduled to adjudicate upon the clzim. Here, as above noted, the grievance must be taken to have been processed in a timely fashion through the applicable Stages Of the grievances procedure and from there to arbitration, and, in fact, this Eoard became seized of the matter and commenced to hear evidence, subsequent to which there er.sued a series of adjournments requested by the parties where, -3 - it appears, further attempts were made to resolve the dispute which appear to have been unsuccessful. In conventional civil litigation a defendant may move for dismissal of an action for want of prosecution, as is provided for under :the Rules of Practice. No such right is provided for in arbitration where the matter has been properly referred to arbitration and the Board, as here,~has become seized of the matter. In cases such as this, the Union having, after an adjournment, failed to take steps to. reconvene the hearing;it was open to the Ministry to take the necessary steps to do so but it did not. In any event, there is no basis for the application of a defence based upon lathes, the claim, as represented by the grievance, having been brought and proceeded through to arbitration in a timely fashion. In 16 Hals. (4th edn.) para. 1477 at p. 998, the, application of the defence is shown to be limited to claims not brought in time and not to cases brought in time and then not pursued towards resolution, thereafter, in an expeditiousmanner. There cannot be said to have been any acquiescence on the part of the Grievor or the Union, the claim having been brought in time and proceeded to arbitration in time. As is pointed out in 16 Hals. (4th end.) para. 1473 at p. 994: The term 'acquiescence' is used where a person refrains from seeking redress when there is brought to his notice a~violation of his rights...and in that sense acquiescence is an element in lathes..." This reinforces my conclusion that lathes could not apply in the instant case, the actions of the Griever or the Union not being capable of being held to be 'acquiescence' in In denying the application of the Ministry it is emphasized that such denial is restricted to a finding that the defence of lathes is found to be inapp,licable on the facts presented. DATED AT London, Ontario this 7th day of December, 1982. the sense described. -4 @-q M. R. Gorsky, Vice Chairman .RX . ..__ -.. c .p ~ R. Russell, Member -3: 2100 2: 1418