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Home My WebLink About1987-0163.Taylor-Baptist.88-05-31Before: 0163187 For the Grievor: IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEbfENT BOARD OPSEU (A. Taylor-Baptist) Grievor and The Crown in Right of Ontario (Ministry of Correctional Services) Employer R.L. Kennedy Vice-Chairman I. Freedman Member R. Trakalo Member M. Cornish Counsel Cornish & Associates Barristers and Solicitors For the Employer: J.F. Benedict Manager, Staff Relations & Compensation Ministry of Correctional Services Hearing: February 3, 1988 -2- INTERIM DECISION In a grievance filed October 5, 1986 the Grievor alleges that he hasbeen subjected to various forms of harassment at various times throughout his career by a particular Supervisor. The grievance alleges that the harassment has placed the Grievor's health in jeopardy. By way of settlement the grievance claims that the Supervisor be relieved of any and all supervisory duties over correctional staff and that a formal letter of apology be given to the Grievor. A number of discussions took place between the parties following the filing of the grievance, and on a number df occasions formal time limits were waived to permit further discussions. The parties were unable to reach agreement, and the matter eventually proceeded to arbitration before this board. At the commencement of the hearing, and against that extensive background of discussions and exchange of information, Mr. Benedict sought by way of a preliminary objection to limit the~scope of evidence that would be received by the board. He indicated that the Employer was aware of an incident that took place October 1, 1986 which had triggered the grievance, and he agreed that evidence with respect to that incident was properly admissable and that the board had jurisdiction to determine what consequences, if a'ny, should flow from that incident. He stated -i i -3- that in January of 1988 the Union provided particulars setting out nine specific events which had occurred on various dates going back to May of 1982. Mr. Benedict argued that these events could not support a grievance at this stage by reason of the mandatory time limits in the collective agreement, and he sought to limit the evidence which we would receive to evidence relating to matters that had taken place within the 20 days prior to the date of filing the grievance. Mr. Benedict indicated thathe had further been taken by surprise in that he had learned only on the date preceding‘the day of the hearing that the Union would, argues. that the circumstances constituted a breach of Article 18.1 of the collective,agreement, being the provision that requires the Empioyer to make reasonable provisions for the safety and health of employees. After some preliminary discussion of the nature and merits of the preliminary objection, the parties did commence discussions with a view to resolving the outstanding issues. Those discussions continued for a substantial period of time, but a satisfactory resolution could not be found. At the conclusion of the day we directed the parties to submit written argument with respect to the Employer's preliminary objection and further directed that the hearing resume on a date to be fixed by the Registrar with the.scope of evidence at that time to be determined by our interim award. Those written arguments have / .: 1 -4- now been submitted and are part of the record in this proceeding and therefore need not be further particularised in this interim award. It is our view that the arguments submitted on behalf of the Union correctly characterize the nature of the grievance that is before us and the applicable evidentiary principles that govern the appropriate scope of evidence. The substances of the argument 'of the Employer is that the mandatory time limit provisions of the collective agreement prevent the introduction of evidence with respect to incidents that of themselves can no longer be the subject matter of a' grievance by reason of the effluxion of time. In addition, arguments were made on the basis of natural justice, fairness and lathes. It is our view that the Employer's argument misconstrues the effect and purpose of the collective agreement provisions dealing with the timeliness of grievances. The collective agreement time limit provisions, as they have been dealt with in numerous prior decisions of this board, deal with the issue of the arbitrability of grievances arising out of particular events and, in the case of continuing grievances, the appropriate scope of relief to be granted by this board. Those provisions in no sense constitute rules dealing with the admissability of evidence in the context of a grievance that is otherwise validly founded within the provisions of the collective acjreement. Once the grievance is properly before us within the -5- procedures laid down in the collective agreement, the appropriate scope of evidence is governed by the normal principles dealing with the admissability of evidence and its relevance to the issues to be arbitrated. In the context of labour relations, matters cannot and ought not to be determined in a vacuum, and past events are customarily covered in the evidence in order to place a particular incident that is the subject matter of a grievance into its proper context in the light of the ongoing employment relationship. It is immaterial that those past events can no longer form the basis of a grievance due to the time limit provisions of the collective agreement. If we were to accept Mr. Benedict's objection that evidence be limited to events occurring no earlier than 20 days prior to the grievance, we would in substance exclude the greater proportion of evidence that is heard in numerous cases by this board on a day-to-day basis. With respect to the nature of the grievance itself, we again agree with counsel for the Union that it is properly identified as a continuing grievance. Specific reference is made to harassment, and while this type of grievance does not necessarily involve a course of conduct, a large number of situations of harassment do in fact involve the repetition of incidents of a similar nature. The Employer readily agrees it is aware of an incident that occurred four days prior to the grievance, and the grievance characterises that incident as one of harassment. It I I ,. -6- may well be that the ongoing course of conduct between this Grievor and the specified Supervisor named in the grievance in the past is relevant to a proper evaluation of that incident. This will be determined on the basis of the application of the normal rules of evidence, and in order to determine the issue of relevancy with respect to any particular incident, it will be necessary in the course of the hearing that we be made aware of the nature of the evidence that is sought to be introduced. Those decisions must be made in the course of the hearing, as there exists no basic rule excluding those incidents on the basis asserted by the Employer. We cannot accept the Employer's argument that it was unaware until the day before the hearing that Article 18 of the collective agreement was in issue. Article 18 is an article well known to the parties and frequently referred to in the context of numerous grievances. The written grievance makes specific reference to the Grievor's health having been placed in jeopardy through the Employer's conduct. It would not be difficult to conclude that the allegations, if proven, would be argued to bring the matter within the provisions of Article 18. With reference to the Employer's arguments relating to natural justice, fairness and lathes, it must be remembered that in evaluating such equitable matters the interests of both parties must be given equal weight. Mr. Benedict's arguments in . -7- this area are of necessity premised on an assumption that his characterisation of the history and of the facts is correct. As is apparent from the written arguments, there is no agreement in this area between the parties, and the Union argues with equal fervour as to the equity of its position. It will be for this board, based on the totality of the evidence, to make that determination. Grievances frequently require the parties to turn their minds to events that took place several years ago. The Employer has asserted no specific prejudice or lack of availability of witnesses apart from the general proposition that because it happened a long time ago, proof becomes difficult. Those are matters which this board.will have to take into account in evaluating issues of credibility and the reliability of, evidence which we receive, but it does not constitute a basis for excluding the evidence. In the result, it is our conclusion that the Employer's -a- preliminary objection is dismissed. The hearing is scheduled to resume June 8th next. I _-_.- r DATED this 31st day of May, 1988. I. FreFman - Member /bL&.k,~& R. Trakalo - Member