HomeMy WebLinkAbout2013-2620.Kennett.14-09-09 DecisionCrown Employees
Grievance Settlement
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Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
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GSB#2013-2620
UNION#2013-0108-0114
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Kennett) Union
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The Crown in Right of Ontario
(Ministry of Community Safety and Correctional Services) Employer
BEFORE Gail Misra Vice-Chair
FOR THE UNION Christopher Bryden
Ryder Wright Blair & Holmes LLP
Barristers and Solicitors
Counsel
FOR THE EMPLOYER Ferina Murji
Ministry of Government Services
Legal Services Branch
Counsel
Kevin Dorgan
Ministry of Government Services
Legal Services Branch
Counsel
HEARING
September 2, 2014
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Decision
The Issue
[1] This is an application by the Union to consolidate two grievances filed on behalf of Rick
Kennett. The Ministry (the “Employer”) resists the consolidation request.
The Background
[2] Rick Kennett (“Kennett” or the “Grievor”) has two grievances which the Union asserts
arise out of the same set of circumstances, and which should therefore be consolidated before me
and heard together. The first grievance, dated September 24, 2013, claims that the grievor was
unjustly disciplined when he was given a 20 day suspension on September 23, 2013 for allegedly
throwing a ‘wet floor’ sign at an inmate who was being escorted. On the grievance form, the
remedy sought is the removal of all discipline, and to be made whole in all respects, including
any missed overtime opportunities. At the hearing the Union clarified that it is no longer seeking
to have all discipline removed, but rather it will be arguing that the level of discipline imposed in
this instance was excessive, and will be seeking to have it reduced. The Union intends to argue
that the Employer imposed such a harsh penalty based on its anti-union animus against the
Grievor, who is a long time union activist.
[3] The second grievance that the Union would like consolidated with the discipline
grievance is dated January 14, 2014. It claims that the Employer had publicized the Grievor’s
discipline on the Public Correction Computer drive. The remedy sought is 80 hours of
compensating time. The Union intends to argue in this grievance too that the Employer was
motivated by its allegedly anti-union animus against the Grievor, and thus caused the publication
of the Grievor’s discipline. This grievance is characterized as a privacy breach issue because a
chart listing the Grievor as having been on a paid and an unpaid suspension for ‘assault on
inmate subject’ was accessible on line to at least one, and likely more, staff outside the Grievor’s
home facility.
[4] The discipline grievance has been referred to me for hearing (GSB File #2013-2620), and
it was at the commencement of the hearing into that matter that the consolidation motion was
made. Hence, at this stage of the proceeding I have heard no evidence. The parties have not
agreed on any facts that may be relied upon in reaching a decision on the consolidation motion.
As such, in reaching this decision I have reviewed the grievances and a screen shot of a
document that is purported to have been made broadly available in alleged breach of the
Grievor’s privacy.
Arguments
[5] There was general agreement between the parties that in an application for consolidation
of proceedings the Board’s Rules of Procedure set out the relevant considerations. Rule 3 states
as follows:
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3. Consolidation of Cases
Where two or more proceedings are pending before the GSB and it appears to the
GSB that,
a. they have a question of law or fact in common;
b. the relief claimed in them arises out of the same transaction or occurrence
or series of transactions or occurrences; or
c. for any other reason an order ought to be made under this rule,
the GSB, on such terms as it considers advisable, may abridge the time for
placing a grievance on the hearing list, and may order that:
d. the proceedings be consolidated, or heard at the same time or one
immediately after the other; and/or
e. any of the proceedings be stayed until after the determination of any other
of them.
[6] The Union advised that while the privacy breach grievance has been referred to
arbitration, no date has been set for its hearing. It argues that consolidation of the two grievances
would be appropriate because the Union will be arguing that both the quantum of discipline and
the privacy breach were motivated by the Employer’s animus against Kennett. According to the
Union, Kennett has been active in the Union since he was first hired. He has apparently been a
steward, vice president and president of Locals, and has also been an acting Staff Representative
for OPSEU. The Grievor was apparently named by the Employer as a responding party to an
unfair labour practice complaint at the Ontario Labour Relations Board at some time in the past.
[7] According to the Union, the discipline and privacy breach grievances are all part of the
same narrative and arise out of the incident that led to the discipline. As such, it is argued that
both grievances should be heard by the same decision-maker, and that doing so would expedite
the proceedings, avoid repetition of evidence, and avoid the possibility of having different
findings of fact regarding the anti-union animus evidence.
[8] The Employer argues against consolidation of the two grievances on a number of bases.
Firstly, the Employer urges me to consider that I am only seized of the discipline grievance, and
that defines my jurisdiction.
[9] Secondly, it states that there is no similarity between the two grievances: one relates to
whether the Employer had just cause to impose the 20 day suspension; the other relates to
whether the Employer breached the Grievor’s privacy when a chart listing the Grievor as having
been on a paid and an unpaid suspension for ‘assault on inmate subject’ was inadvertently posted
to a drive that was accessible to a broader audience. The Employer reserves the right to argue
that there is no prima facie case in the privacy breach grievance, and/or that the issue is moot.
[10] In any event, according to the Employer, Kent Milligan prepared the document in
question for his own use while he was in management at the Elgin-Middlesex Detention Centre,
where the Grievor was employed, and that at that juncture it was password-protected.
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Apparently when Mr. Milligan was transferred to the Stratford Jail, his files were supposed to
have been made accessible to him at his new location. However, according to the Employer, the
government’s IT department inadvertently made the switch without also moving the password-
protected status of the document, thus making it readable by others. The Employer will argue
ultimately that there was no anti-union animus motivating its representatives to cause the privacy
breach.
[11] Thirdly, the Employer argues that the grievances do not have questions of fact or law in
common, nor does the relief sought in each grievance arise out of the same transaction or
occurrence. While conceding that the privacy breach grievance has its genesis in the
disciplinary matter, the Employer argues that is simply a coincidence, and that the privacy breach
could have been about anything related to the Grievor.
[12] Finally, according to the Employer, there are no compelling reasons for the Board to
consolidate the two grievances. It argues that it would be inefficient to have to deal with a
discipline grievance, in which the employer bears the onus, at the same time as having to deal
with the Union’s privacy breach grievance, in which the Union bears the onus. According to the
Employer, even on the one common issue of the Union’s claim of anti-union animus, it would
likely be calling evidence through different individuals in each grievance: management in the
disciplinary grievance, and corporate IT in the privacy breach grievance.
[13] Both parties relied on jurisprudence which they asserted supported their respective
positions. I have read and considered all of the case law provided. In reaching my decision I
will only be referring to those decisions upon which I may rely. As was clear from my review of
the jurisprudence, each case in which the issue of consolidation arises must be decided on its
own particular set of facts or circumstances. As such, while the decisions were helpful generally
for their annunciation of the principles or factors to be considered in reaching a decision on
whether a motion for consolidation should be granted, the facts of each case were sufficiently
different as to be of limited utility.
Decision
[14] As is obvious from a review of Rule 3 itself, I have the jurisdiction and the discretion to
decide whether to consolidate proceedings. As such, there is no real question regarding my
jurisdiction in that regard in this motion. In considering motions to consolidate proceedings
before the Grievance Settlement Board, and in addition to Rule 3 outlined above, the Board may
also consider such other factors as efficient use of resources, cost savings, avoiding conflicting
findings of fact, the orderly and efficient disposition of grievances, and whether either party
would be prejudiced by an order to consolidate (see OPSEU (Ferraro) and Ministry of
Community, Family and Children’s Services, GSB# 1200/00 (Mikus), citing Smith and Ministry
of Correctional Services, GSB No. 545/94).
[15] While the two grievances in question in this motion are different in character, there is
little doubt that they are at the very least connected by the fact of the disciplinary suspension of
the Grievor. The first grievance disputes the quantum of the penalty for the Grievor’s allegedly
throwing a ‘wet floor’ sign at an inmate; and, the second grievance appears to complain that the
Employer breached the Grievor’s privacy when a manager who had been involved in that
disciplinary event had somehow made available to a larger audience information about the
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Grievor having been first suspended with pay, and then without pay, for the alleged assault on
the inmate.
[16] The second thread connecting these grievances is that the Union has put the Employer on
notice that it intends to argue that the Employer excessively disciplined the Grievor, and then
made public the fact that he had been disciplined, in retaliation against Kennett on the basis of
his union activity. Hence, the Employer’s motive is alleged to be the same in both cases.
[17] In light of the above-noted connections between the grievances I am satisfied that there
are sufficient questions of law and fact in common between these two grievances to consider
hearing them together.
[18] As well, the two grievances appear to arise out of the same incident or occurrence. It
seems likely that but for the Employer’s investigation into the alleged inmate incident, Kennett
would not have been suspended with pay during the investigation, and following completion of
the investigation, would not have been suspended for 20 days as discipline for his role in the
incident. Had he not been suspended, paid or otherwise, Mr. Milligan would not likely have put
Kennett’s name on his spreadsheet regarding workers who were under suspension. It is the
release of that spreadsheet that is the subject of the second grievance regarding the alleged
breach of the Grievor’s privacy. As such, the two grievances appear to arise out of the same
occurrence.
[19] Although the Employer vigorously opposed the consolidation of the two grievances, it
did not claim any prejudice would result should the two be consolidated.
[20] In all of the circumstances I am of the view that hearing these two grievances together
would lead to a more efficient use of both the Board’s and the parties’ resources, both in terms of
time and cost savings. As this is not a unique situation, there should not be any procedural
complications that cannot be worked out to ensure that each party has its full rights to call the
evidence it needs to, and has full opportunity to test the case of the other side.
[21] Accordingly, the motion to consolidate the two grievances in question is granted. The
parties should consider between themselves the order of proceeding, and should they be unable
to agree, may seek direction from me prior to the next day of hearing.
Dated at Toronto, Ontario this 9th day of September 2014.
Gail Misra, Vice-Chair