Loading...
HomeMy WebLinkAbout2003-3265.Pace.06-07-19 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB# 2003-3265, 2004-1066, 2005-0288, 2005-1255 UNION# 2003-0234-0562, 2004-0234-0305, 2005-0234-0054, 2005-0234-0156 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Pace) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Loretta Mikus Vice-Chair FOR THE UNION John Brewin Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Simon Heath Counsel Ministry of Government Services HEARING May 5, 2006. 2 Decision At the hearing on May 3, 2006, the Employer raised several issues related to the disclosure of documents. Before making any orders in this case, an explanation of the progress of these multiple grievances is necessary. The grievor had been employed as a Registered Nurse in the Health Care Unit at Maplehurst Detention Centre since July of 2002. Before that she had been employed at the Guelph Correctional Centre. Originally, she had filed a grievance dated November 22, 2003 alleging discrimination and harassment. Mediation was unsuccessful and the hearing proceeded on February 3, March 10 and 11 of 2005. Before the next scheduled day of hearing the Board was advised that the grievor had filed two additional grievances alleging unjust suspension and unjust termination. A dispute arose concerning the consolidation of these grievances and the order of the proceedings. In an interim decision dated November 21, 2005 it was ordered that all three grievances be consolidated and that we proceed with the suspension and discharge grievances first and in that order. The hearing reconvened on January 26, 2006 and the evidence of the events resulting in the five day suspension was begun. The next day of hearing, March 23, 2006 was devoted to issue of disclosure. At the hearing into this matter it became clear that the Union had information directly related to the issue between the parties that it had failed to provide to the Employer. It was agreed it would do so with respect to some of the information being sought but submitted that the parties disagreed on the scope of the Employer’s grounds for termination and therefore the scope of the disclosure being sought in respect of other documents. Mr. Simon Heath, counsel for the Employer, agreed to clarify the grounds it intended to rely on and the information sought and to that end sent a letter to Mr. Brewin dated March 31, 2006 in which he confirmed their agreement to adjourn the suspension grievance and proceed on the termination grievance on the next day of hearing, namely May 3, 2006. The grounds set out in that letter included an allegation of abuse of the sick leave provisions of the collective agreement and a forbidden relationship with a former inmate. The Employer asked for the following: 3 1. A list of all employers the grievor has worked for in addition to the Ministry from 2002 to the present. 2. All medical information including medical records, notes, clinical records from doctors, psychiatrists and psychologists from 2003 to 204. 3. All telephone and cell-phone records from 2004 to the present. 4. Copies of all correspondence including but not limited to cheques given to and or received from Robert Pitman or any other former inmate of a provincial or federal correctional institution. 5. Copies of all rental related documentation (including rental information on income tax returns between the Grievor and all of her tenants from 2003 to the present. 6. All driving insurance documents and claims, including tickets issued for all vehicles owned and the people operating the vehicles from 2004 to the present. This should include all information on a vehicle incident of the grievor’s Chevy Avalanche or other automobile or truck from 2004 to the present. 7. All documentation demonstrating that the grievor and Robert Pitman were cohabiting, including al joint bank account information. As well, the Employer repeated its earlier request of March 23 regarding the release of the grievor’s T-4’s from 2003, 2004 and 2005, pay-stubs from Homewood and anywhere else she was working during the relevant time, bank statements for the same period of time, and any WSIB payments made to the grievor. The Union responded to that letter on May 3, 2006 by consenting to the proposal that the parties proceed with the discharge grievance first and to the additional grounds of the alleged improper relationship with Mr. Pitman. It also agreed that it would provide the Employer with full disclosure of all documents in its possession relevant to the issues raised in the Employer’s letter of particulars before May 31, 2006. However, the Union took issue with several of the specific requests in the Employer’s letter of March 31, 2006. It took the position that the financial information sought by the Employer only became relevant if the grievor succeeds in her request for reinstatement and that would be the appropriate time for disclosure. It asked for more precise details of the medical information and records being sought. It asked the Employer to specify what phone numbers it was looking for and, if the records existed, the Union would provide the records of those numbers only. It refused to provide information about any correspondence, including cheques from any other inmate or former inmate other than Mr. Pitman. Finally, it asked for justification for its request for rental related documentation. 4 DECISION There is no need for me to repeat the ongoing and mutual requirement to produce to the other side any documents a party intends to rely on in presenting its case. The obligation under the collective agreement and the Labour Relations Act has been the subject matter of numerous Board decisions and can no longer be in doubt. Neither can there be any doubt or question about the test to be applied in deciding what should be disclosed. If a document is arguably relevant to the issues before the Board and not subject to any exclusionary privilege, it is to be produced. Dealing with the case before me, the grounds for the grievor’s dismissal were that she improperly and fraudulently worked for another employer from January to June of 2004 while collecting sick leave benefits from her Employer and that she improperly had a relationship with a former inmate, which is specifically forbidden by Ministry policy. The question then is whether the Employer’s request for this documentary evidence is arguably relevant to the issue before me. The Employer submitted that it needs the pay stubs from Homewood and any other employer she worked with while she was on sick leave in order to determine whether she actually worked on days she had been scheduled to work at Maplehurst. It argued that the T-4 slips will also provide that information and are clearly relevant to the issues. The Employer, it was said, is entitled to those documents. As well, it is entitled to any WSIB documents that would establish payment of benefits during the relevant time. It advanced another reason for wanting these T-4 slips. Since the termination of the grievor’s services, the Employer has heard rumours about the grievor’s past practice of renting rooms to former inmates. It asked for the documents concerning bank statements and T-4 slips that might disclose this additional income. While I have concerns about the disclosure of T-4 slips generally, I agree that, in the instant case, the information being sought is arguably relevant to the issues before me. If the grievor claimed additional income on her tax forms that indicated she had rented rooms to Mr. Pitman, the Employer is entitled to that information. The grounds for the termination were her employment at Homewood and her alleged relationship with Mr. Pitman. The T-4 slips might prove or 5 disprove the allegation but in any case are arguably relevant and should be provided to the Employer subject to the conditions set out below. The Employer has asked for a list of all the employers the grievor has worked for since 2002. That request seems to me to be very broad. If the allegation is that she worked at Homewood while claiming sick benefits from Maplehurst, the Employer is entitled to know when she worked at Homewood during the relevant time, that is from January to June of 2004. That information is clearly relevant to that issue. As well, if she worked for any other employers during that time, the Employer is entitled to know when and where. However, the request for information about other employment dating back to 2002 is too broad in its scope and seems to be in the nature of a fishing expedition to garner evidence not related to the grounds of the discharge or the issues raised in this grievance. The Employer has asked for all medical information concerning the grievor from 2003 to 2004. Since the grievor’s position is that she was unable to work at Maplehurst because of stress but was cleared to work at Homewood by her physician, the medical notes and records for this period of time are arguably relevant and are to be produced. The Employer has asked for all of the grievor’s phone records, including her cell phone, records, from 2004 to the present. It has also asked for all correspondence to and from Mr. Pitman and any other former inmate of a provincial or federal correctional institution and all rental information concerning Mr. Pitman and any other former inmate of a provincial or federal correctional institution. Finally, it is seeking all information of the grievor acting as a surety or bailing out any inmate or former inmate from 2004 to the present. This information is being sought because of information provided to the Employer during its investigation of the grievor’s alleged relationship with Mr. Pitman. However, the information being sought about other former inmates is not related to the issue of her alleged relationship with Mr. Pitmen. The Employer has also learned that during the time the grievor was allegedly involved with Mr. Pitman, he was involved in an automobile accident or incident in her car. It has asked for any and all insurance documents concerning claims or traffic tickets or violations involving any vehicles she owns or insures. This request is for information arguably relevant to the issues before me and is to be produced. 6 Finally, the Employer has asked for all documentation that would demonstrate that the grievor and Mr. Pitmen were cohabiting including any bank statements and/or cheques given to or by Mr. Pitmen to the grievor. After considering the submissions of the parties, including the statement of particulars of the parties regarding the issues before me, it is the order of the Board that the Union provide to the Employer as soon as is possible following the release of this order, the following: 1. A list of the days the grievor worked at Homewood, including her pay stubs, between January and June of 2004. 2. All medical information from all sources relating to her claim that she was unable to work at Maplehurst from 2003 to 2004. 3. All documentation that the grievor and Mr. Pitman were cohabiting, including any cheques given by him to the grievor or to him by the grievor, 4. Any bank statements of the grievor that indicate deposits and/or cheques from or to Mr. Pitman. 5. The grievor and the Union are to provide the Employer with any telephone, including her cell phone, accounts that might indicate communication between her and Mr. Pitmen. She is to identify Mr. Pitman’s numbers for the Employer. 6. The Union is to provide to the Employer any or all information concerning vehicle accident claims on any vehicle she owns as well as any traffic violation involving those vehicles for the period of time she is alleged to have been involved with Mr. Pitman. 7. The Employer has asked for the grievor’s T-4 slips for 2002, 2003 and 2004 to scrutinize her income from all sources, including income and deductions, if any, from rental income derived from renting a room to Mr. Pitman. This information is arguably relevant to the grounds relied on for the termination and should be produced. However, only those portions of the income tax returns relating to those issues are to be released. The allegations directed at the grievor involve events occurring in 2003 and 2004. It is that period of time that is relevant to the issues and it is the records from that period of time that must be provided. As stated previously, the Union is to provide the Employer with this information as soon as is possible after the release of this award and well in advance of the next day of hearing on September 11, 2006 to avoid any further delays. Dated at Toronto this 19th day of July, 2006. Loretta Mikus Vice-Chair