HomeMy WebLinkAbout1982-0321.Goheen.83-11-17Memorandum
Re: 321/82 Goheen (Verity)
YOU are requested to attach the enclosed copy of
Mr. Smith's dissent to the decision 321/82 Goheen.
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kg _’ I ,,AJ 4~.,
H. . oss, Registrar
Toronto, Ontario
November.17, 1983
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DISSENT: IN THE MATTER OF JOHN GQHEEN AND THE ------- MINISTRY OF EDUCATION - GSB File 381~/82.
After reviewing the Chairman's Award, I must
respectfully submit a position of non-concurrence.
From the argument and evidence,presented at the
Hearing, it must be concluded that the employer should be
held more accountable for it's irresponsible handling of the
Griever's complaint and subsequent delay in filing the
written grievance.
The Griever's inability to submit a written grievance
stemmed from the ~nployers delays in determining whether or
not the summer course attended by the Grievor was to be treated
as a duty assignment and also, whether or not the honorarium
paid to the ~Grievor was 'to be treated as a taxable or non-~
taxable expense.
The employer not only delayed 'the answers to the
Grievor, but also, never clearly contradicted the employee to
thus give the'Grievor basis for a written grievance. Also, it
should be pointed out that in evidence the employer never
questioned the time limits as provided in the grievance pro-
cedure until a written grievance was submitted by the Griever.
For all these-reasons, the employer should be precluded from any arguments on-timeliness.
Further to the arguments, I feel that all the conditions
are in place and have been met for an ~:stoppel-by-Conl.7uct si.tuiition and should be rocognizerl ill; ~nrh.
The remedial jurisdiction conco-ninq Est~oppel was
addressed by Paul Weiler in his City of I'enticton Award (page 317) :
I) In its classic form, the application and attractiveness of .the~“
notion of Estoppel is quite easy to appreciate, One party enjoys
a legal right under a contract. That party says tha.t ,it is not
going to enforce that right on a particular occasion. The other
party relies on that representation and acts accordingly. Then
the first party changes its mind and decides that it does want to
enforce its strict legal rights; but only after its counter point
has irretrieva~bly committed itself. Thequitable doctrine of
Estoppel is designed to prevent such an unfair tactic".
Perhaps more simply put by Dean Arthur-s in..his City of.
Toronto and Civic Employees Local 43 (1967) LAC 273, Page 280,
"You are not allowed to let someone go out on a limb so that you
can saw it off".
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I feel that the employers continuing search for
clarification as to whether or not the summer course was a
duty assignment and the delays which ensued as to the matter
of taxation on the honorarium, was an action .that affected
the legal.relations.between the parties, and the employer
should not now be allowed to revert to a strict position
(on timeliness) that no such assurances had been given.
For all the foregoing reasons, I feel the grievance
should have been allowed and judged on it's meriks.
JS:pb Jeff Smith,
Union Nominee.