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
Ontario Public Service Employees Union (Difederico)
Union
- and -
The Crown in Right of Ontario (Ministry of the Attorney General)
Employer
BEFORE
Ken Petryshen
Vice-Chair
FOR THE UNION
Gavin Leeb Grievance Officer Ontario Public Service Employees Union
FOR THE EMPLOYER
Melissa Nixon Senior Counsel Management Board Secretariat
HEARING
October 28, December 1 & 2, 2004.
Decision
I have before me three grievances filed in 1992 by Ms. S. Difederico, an unclassified employee. In a grievance dated January 15, 1992, Ms. Difederico claims that she was unjustly denied the classified position of Office and Systems Clerk and Cashier. She competed unsuccessfully for two positions located in the Ontario Court of Justice (Provincial 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 in 1992. Ms. Difederico applied for one of these positions and again was unsuccessful. The text of her December 7, 1992 grievance relating 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 individuals with less aggregate service. This is a violation of the collective agreement 3:15.1, and any other relevant article of the collective agreement, including article (A) A1.1, A1.2, 4.3, 25.1 – last paragraph." The Union advises that the reference to Article 3:15.1 raises a conversion issue and the reference to the other articles raises allegations of discrimination and harassment.
By letter dated December 7, 1992, Ms. M. Hudacin, Acting Manager, advised Ms. Difederico that her unclassified contract would terminate on December 21, 1992 and, in effect, that it would not be renewed. In a grievance dated December 15, 1992, Ms.
Difederico challenged what she characterized as her unjust dismissal. Ms. Difederico
was given another unclassified contract some time later and continues to work as an unclassified employee with the Ministry in Hamilton.
There is no dispute that the three grievances were referred to the Grievance Settlement Board in a timely manner. The three grievances appeared on a 1998 list of grievances to be addressed during the backlog project. There is no indication that the Employer raised a timeliness issue in connection with the three grievances at that time or whether the grievances were addressed during the backlog project. The backlog project for this Ministry was completed by early 1999. There is no indication subsequent to that time or at any time that the Union did not intend to pursue or withdrew the grievances. The three grievances appeared in early 2002 on a list of grievances to be scheduled for hearing in the joint file review process. Ms. V. Neville, Labour Relations Consultant with the Ministry, testified that the Ministry could have taken steps to have the grievance scheduled earlier.
I note that there were other grievances filed in 1992 by unclassified employees working for the Ministry at Hamilton that appeared on the list in early 2002 to be scheduled at joint file review. All of these grievances, including Ms. Difederico's grievances, were scheduled for mediation before me on April 22, 2003. Ms. J. Fazakas and Ms. L. Usselman also grieved that they were unjustly denied the classified positions of Office and Systems Clerk and Cashier that were posted on November 12, 1991. These two grievances were withdrawn by the Union at a subsequent hearing. On August 6, 1992, Ms. Difederico, Ms. Fazakas and Ms. Usselman grieved separately that the Employer has not paid them at the appropriate progression levels. The Union and the Employer agreed to defer these grievances and they are now scheduled to be heard starting on May 9, 2005. The Employer has reserved the right to raise a timeless issue with respect to these grievances.
The Employer takes the position that the three grievances filed by Ms. Difrederico in 1992 should be dismissed based on laches or undue delay. The Employer argues that it has been prejudiced by the delay in scheduling the grievances for hearing and that accordingly it would be unfair in the circumstances for these grievances to proceed on their merits. The Union submits that the Employer has failed to demonstrate that it has been prejudiced by the delay. It also takes the position that the proceeding should not be bifurcated. In its view, a decision on the laches issue should be deferred in the circumstances of this case until the merits are heard in 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 considering the submissions of counsel, it is my conclusion that the appropriate approach is to reserve on the laches issue at this stage of the proceeding and to hear the merits of the grievances. Although I agree with counsel for the Employer that the facts in the two cases referred to above are distinguishable 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 merits of the grievances. In the unique circumstances before me, I am satisfied that the best way to address the issues arising from these grievances, including the issue of delay, is to hear the merits.
Accordingly, the Registrar is directed to set these grievances down for hearing
after consulting with the parties for the purpose of addressing the merits of the grievances.
Dated at Toronto, this 22nd day of February, 2005.