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HomeMy WebLinkAbout1983-0027.Gwin.83-08-05IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: For the Grievor: For the Employer: Hearing: OLBEU (Peter Gwin) Grievor - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer P. M. Draper Vice Chairman R. Russell Member P. D. Camp Member E. Baker General Secretary Ontario Liquor Boards Employees' Union C. Slater Counsel Hicks Morley Hamilton Stewart StOrie Barristers & Solicitors July 12, 1983 -2- DECISION The Grievor, Peter Gwin, filed a grievance with the Employer dated December 13, 1982, which stated the nature of the grievance and the clauses violated as: Discipline. Re clause 3.2 and 8 of collect- ive agreement, that he has been disciplined from his employment without just cause. and the settlement desired as: Payment of all monies lost, due to actions by the Board, plus interest determined by the Board, plus interest determined by current bank saving deposit rate. Also a written commitment by the Board that it will institute proper management procedures-- explained to the personnel--to handle future such situations. The notice of the application for a hearing given by the Registrar to the Employer, with copies to the Grievor and the Union, is dated January 26, 1983, and states that the application concerns a grievance alleging ". . . disciplined from his employment without just cause". At the outset of the hearing, counsel to the Employer raised the preliminary objection that because the grievance is based on a claim made under Article 3.2(c) of the collective agreement between the parties that the Grievor has been disci- plined without just cause and because the Employer denies that ;3- disciplinary action has been taken against the Grievor, a prima facie case of discipline must be made out by the Grievor before the Board could proceed to hear the merits. Re Brown Brothers Ltd., (1973) 2 L.A.C. (2d) 347 (Weatherill) and & Seneca College (1982, unreported, Weatherill) were cited in support of the objection. The representative of the Grievor responded that the objection need not have been made since he did not intend to present the grievance as a discipline case but as a claim for attendance credits under Article 8 of the collective agreement. Counsel to the Employer thereupon objected that the subject matter of the grievance was discipline and had been dealt with as such by the parties throughout the grievance procedure. Citing Article 21.8(a) of the collective agreement which provides that no grievance may be submitted to this Board ". . . which has not been properly carried through the Grievance Procedure", he argued that what was being sought was not simply an amendment to the existing grievance but the presentation of a different grievance. The Board was referred to Municipality of Metropolitan Toronto, (1979) 22 L.A.C. (2d) 225 (Schiff) and to a decision of this Board, Heffering, 504/80. -4- In reply, the representative of the Grievor, while not disputing that the grievance had advanced to the present stage as a discipline case, argued that there is a reference to Article 8 in the grievance as filed, that both parties were fully aware during the course of the grievance procedure that what was in dispute was the matter of attendance credits, and that he was entitled to pursue only that aspect of the case. Having recessed to consider the submissions of the parties on the point, the Board delivered its decision orally, with a short statement of reasons, dismissing the grievance. We now confirm that decision and formally record the reasons upon which it is based. It is the opinion of this Board that the cause of the grievance as initially stated and as carried through the grievance procedure must be taken as defining the nature and scope of that grievance. That being so, the Grievor has invoked the jurisdiction of this Board to have resolved the claim made by him that he has been disciplined without just cause. Once that claim has been abandoned the issues raised by the griev- ance are no longer before us for determination. If there is no disciplinary action to be tried, there is no issue of just cause or of redress for a penalty imposed. -5- Had the matter proceeded in the normal course (and leaving aside the question raised by the preliminary objection) we would have been called upon to decide whether or not there was just cause for discipline of the Grievor and, if so, whether or not the denial of attendance credits was an appro- priate (or perhaps an available) penalty. The grievance as proposed to be presented would require us to decide whether or not the Grievor was denied attendance credits in violation of Article 8. In our opinion, we were thus faced not with a request to entertain an amended grievance that would retain the essential identity of the original issues, but a request to entertain a grievance so fundamentally altered as to be tantamount to a separate grievance raising different issues. We recognize the force of the numerous court and arbitration cases rejecting a legalistic approach to the treatment of grievances and we acknowledge the desirability of acting upon grievances so as to achieve settlement of the true dispute. However, the problem raised by the Grievor's late change of strategy, if it may be so termed, is not one of form, or procedure, or of merely construing the language of the original grievance, but is one going to the substance of the grievance. We find nothing in the jurisprudence, of- fering a basis upon which we might reasonably find the griev- ante, as now presented, to be arbitrable and permit the case to proceed as proposed. -6- In the result, it was our conclusion that the grievance could not be entertaindd and it was accordingly dismissed. DATED at Toronto this 5th day of August, 1983. P.M. Draper Vice Chairman R. Russell . Member (/ ,*!> T-Jh P.D. Camp Member 3: 2100 :j 2200 2640 /tj