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HomeMy WebLinkAbout2013-2789 Bharti 14-10-28 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#2013-2789 UNION#2013-0362-0022 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Bharti) Union - and - The Crown in Right of Ontario (Ministry of Natural Resources and Forestry) Employer BEFORE Ian Anderson Vice-Chair FOR THE UNION Billeh Hamud Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Jonathan Rabinovitch Treasury Board Secretariat Legal Services Branch Counsel CONFERENCE CALL October 10, 2014 - 2 - Decision [1] The Employer brings a motion to strike additional particulars filed by the Union. The background to the motion is as follows. [2] The grievance was filed in March 2013. As initially filed, the grievance simply alleged “that the Employer did violate the Human Rights Code by not accommodating religious observance requests”. The remedy requested was “that the employee be accommodated for religious observances”. [3] A hearing was scheduled for June 24, 2014. Some time was spent in case management discussions. During the course of those discussions it became apparent that the Grievor was also alleging that the Employer’s actions constituted a breach of the Human Rights Code by not accommodating certain family status obligations which he had towards his elderly parents. The parties agreed that it was sensible to address all of the Grievor’s allegations within the context of the current grievance, but that it was important to identify all of those allegations in advance of the hearing. Accordingly, the parties agreed that the grievance could be expanded to include all grounds of discrimination particularized by the Grievor. This agreement was reflected in a decision dated June 27, 2014. The pertinent part of that decision reads as follows: By July 15, 2014, the Union is to file full particulars with respect to all grounds of the Code which it says are engaged, along with copies of all documents upon which it will rely in support of its position. In doing so, the Union is to identify all witnesses it intends to call and for each witness provide a brief synopsis of his or her anticipated evidence. By September 9, 2014 the Employer is file all documents upon which it intends to rely in support of its position. By October 1, 2014 the Employer is to file a document in which it identifies all witnesses it intends to call and for each witness provide a brief synopsis of his or her anticipated evidence. [4] The parties subsequently agreed to amend the dates set out in the Board’s decision. The Union filed particulars dated July 22, 2014 which read as follows: Viren Bharti, the Grievor, is employed as a Senior Statistician/Biometrician with the Ministry of Natural Resources. He has a seniority date of April 2005. The Grievor’s office is located in Peterborough, ON, while the Grievor’s home residence is located in Ottawa, ON. Due to the nature of the Grievor’s work, the Grievor will testify that he can work in remote work locations and perform his complete work duties. The Grievor will testify that other employees are being accommodated to work in other work locations. In fact, the Grievor is currently working at the Ministry of Community and Social Services office in Ottawa until November 2014. - 3 - Particulars relating to the Grievor’s Religious Beliefs: The Grievor is a practicing Hindu. As a practicing Hindu, the Grievor has a sincerely held belief that his religion requires him and his wife to be equal participants in the daily morning and evening prayers. The Grievor will testify that his wife is an equal partner in the prayers. Accordingly, the Grievor will testify that he has a sincerely held belief that the prayers of a married Hindu man, without his wife’s participation, would not be considered valid according to his religion. The Grievor will testify that the morning prayer is usually performed one or two hours before dawn. The Grievor will testify that the evening prayer is usually performed at sunset or before midnight. The Grievor will testify that his wife is an equal partner in the prayers. Accordingly, the Grievor will testify that he has a sincerely held belief that the prayers of a married Hindu man, without his wife’s participation, would not be considered valid. The Grievor will testify that the Employer allowed the Grievor to work in the Greater Ottawa Area from March 2014 until October 2014 in order to accommodate his religious beliefs. As a result, the Grievor needs to be situated in the Greater Ottawa Area in order for fulfill his religious obligations. Furthermore, the Grievor will testify that he is unable to commute 600km on a daily basis from Ottawa to Peterborough in order to provide eldercare to his parents. The Grievor will testify that since his Employer had been accommodating his requests to work in the Greater Ottawa Area at various times from 2005 until 2012, the Grievor believed that there was no need to disclose his religious accommodation issue to the Employer. The Grievor will testify that it was only until Mr. Kapron and Mr. Gillis denied his latest request to work in Ottawa that the Grievor explained his religious obligations to the Employer. In 2013, the Grievor filed the present grievance. The Union will argue that the Employer has discriminated against the Grievor on the ground of creed contrary to the Human Rights Code by denying his request to work in the Greater Ottawa Area. - 4 - Particulars relating to the Grievor’s Family Status Obligations: The Grievor is married and has two children. His first child is 20 years old and the second child is 13 years old. Both children live at home and are presently attending College and Primary School, respectively. The Grievor will testify that he needs to be situated in the Greater Ottawa Area to provide eldercare to his parents. The Grievor will testify that his father is 77 years old and his mother is 75 years old. The Grievor will testify that he provides the following family support to his parents: 1) Prepares breakfast in the morning for his parents, 2) Assists his parents with the washroom facilities, and 3) Prepares dinner for his parents in the evenings. The Grievor will testify that his mother moved in with his family in 2007, and that his father moved from India to Ottawa in 2012 and continues to reside with the family. As a result, the Grievor will testify that his eldercare obligations have increased since 2012. The Grievor will testify that his parents speak the Hindi language fluently, and that his parents do not speak English. As a result, the Grievor needs to be situated in Ottawa in order to fulfill his eldercare obligations. Furthermore, the Grievor will testify that he is unable to commute 600km on a daily basis from Ottawa to Peterborough in order to provide eldercare to his parents. The Union will argue that the Employer has discriminated against the Grievor on the ground of family status contrary to the Human Rights Code by denying his request to work in the Greater Ottawa Area. Witnesses: The Grievor [5] On August 27, 2014 the Union brought an application for interim relief. In support of that application it filed a Declaration from Mr. Bharti. The Union indicated that it intended to rely upon that Declaration as further particulars in support of its position on the merits of the grievance. The Employer does not object to this, in part because the declaration was filed before the Employer delivered its document brief to the Union. That Declaration reads in substantive part as follows: I have been employed as a Senior Statistician/Biometrician with the Ministry of Natural Resources and Forestry since April 2005. I am a practicing Hindu and practice the religion of Hinduism. As a practicing Hindu, my faith requires my wife and I to be equal participants in daily morning and evening prayers. - 5 - As part of my faith, the morning prayer is usually performed one or two hours before dawn. As part of my faith, the evening prayer is usually performed at sunset or before midnight. I have a sincerely held belief that the prayers of a married Hindu man, without his wife’s participation, would not be considered valid according to my faith. My Employer has agreed to allow me to work in the Greater Ottawa Area from March 2014 until October 2014 in order to accommodate my religious beliefs Based on the nature of my work duties, I can work in remote work locations without being situated in the City of Peterborough. Based on my own observations and direct knowledge, other employees in the Natural Resources Information Unit work in other cities throughout the province. I am married and have two children. My first child is 20 years old and my second child is 13 years old. Both of my children live at home and are presently attending College and Primary School. My parents also live with me at my home in Ottawa. My father is 76 years old and my mother is 74 years old. I also provide the following family and eldercare support to my parents: 1) I prepare breakfast and lunch in the morning for my parents, 2) I assist my parents with the washroom facilities, 3) I prepare dinner for my parents in the evenings, 4) I manage adaptive equipment, appliances and other devices including sugar/blood checkup and medication management for my parents, 5) I help my parents walk and perform physical exercises including yoga in morning and evening, 6) I buy groceries and shop for them, 7) I act as an interpreter for my parents as I am the only one in my household who can speak their native dialect, 8) I provide transportation to my parents, including medical appointments. My mother moved in with my family in 2006, and my father moved from India to Ottawa in 2012 and continues to reside with my family. As a result my eldercare obligations have increased since 2012. - 6 - My parents speak the Hindi language and the Bhojpuri language, which is their mother tongue. My parents do not speak English. As a result, I need to be situated in Ottawa in order to fulfill my eldercare obligations. I am unable to commute approximately 600 km on a daily basis from the City of Ottawa to the City of Peterborough in order to provide eldercare to my parents and adhere to my religious beliefs. I make this declaration in support of the notice for interim relief and for no improper purpose. [6] By decision dated September 9, 2014, the Union’s application for interim relief was denied. That decision turned in part on the inadequacy of the declaration filed by the Union in support of its application. [7] On October 5, 2014 the Union sent the following email to counsel for the Employer: Here are the Union’s additional particulars with respect to this matter. Please note, based on a review of the Employer’s Book of Documents, it is clear that the Employer is already aware of the following particulars: The Grievor will testify about his wife’s job and that she cannot move to Peterborough because of her work. Accordingly, the Grievor will testify that he and his family would experience serious financial hardship if his wife is required to move to Peterborough. The Grievor will testify that his parents live with him, he supports his parents by providing them with the necessaries of life and his parents are under his legal care. The Grievor will testify about his eldercare obligations, including his parents’ medical condition/restrictions, his reasonable efforts to meet those eldercare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible to him. Due to the nature of the Grievor’s work, the Grievor will testify that he can work in remote work locations and perform his complete work duties without physically being in the Peterborough office. In fact, the Grievor has been working at the Ministry of Community and Social Services office in Ottawa from March 2014 until October 31, 2014. The Grievor will testify that since 2005 to 2010 he has made informal requests to be accommodated in Ottawa to his supervisor Scott Jones. The Grievor will testify that Mr. Jones accommodated the Grievor’s flexible work arrangements by allowing the Grievor to work from home on Monday or Friday. - 7 - The Grievor will testify that in 2007 or 2008, he received an offer of employment (contract) to work with the Federal Government in Ottawa. When the Grievor received the offer, he discussed it with his Supervisor Scott Jones. The Grievor will testify that Mr. Jones stated to the Grievor that “your job could easily be done remotely” in an effort to persuade the Grievor to remain with the Ministry of Natural Resources. The Grievor will testify that Mr. Jones allowed the Grievor to work indefinitely at Kemptville, Ontario (approximately 50km from Ottawa), and the Grievor reluctantly agreed to decline the offer for employment with the Federal Government. The Grievor will testify that Mr. Jones retired in 2009 or 2010, and that Joe Kapron, the Grievor’s Manager, ordered him back to Peterborough. Shortly thereafter, Scott Giles became the Grievor’s supervisor. The Grievor will testify that in 2010, the Grievor made a second request to work from the Greater Ottawa area. The Grievor will testify that the Grievor was allowed to work in the Greater Ottawa Area for an additional six months. The Grievor will testify that in 2010, and after the six month term ended in Ottawa, Ontario, the Grievor received an offer to work with the Federal Government (Health Canada) in Ottawa, Ontario, as part of an exchange program. The Grievor remained in Ottawa for an additional 1.5 years. The Grievor will testify that in 2011 or 2012 and following the end of the exchange program in Ottawa, the Grievor returned to Peterborough. Shortly thereafter, the Grievor then made a subsequent request to transfer to the Greater Ottawa Area, and that request was denied by Mr. Kapron. [8] The Employer objected to the attempt by the Union to file additional particulars. A hearing was held on October 10, 2014. Additional written submissions were filed by the party in the following days. [9] The Employer argues that the Union’s attempt to file additional particulars is at odds with the direction in the decision dated June 27, 2014 that the Union provide “full particulars” by a specified date. It is also at odds with the fact that the Employer has already provided full disclosure in reliance on those particulars. The Employer relies upon OPSEU (Mehta/Union Grievance) v. Ministry of Finance, GSB#1384/99, 0384/0, unreported, September 14, 2001 (hereafter “Mehta”). [10] The Union argues that the Employer’s approach is overly technical. It relies upon Parry Sound Social Services v. OPSEU, [2003] 2 S.C.R 157 at p. 193. There is, it argues, no prejudice to the Employer as it has provided the additional particulars a month in advance of the next scheduled hearing date and the facts particularized lie within the knowledge of the Employer, as they are all contained in documents provided by the Employer in its - 8 - document brief. It argues that if it is not permitted to file the additional particulars, the evidence will still come out as it will put the Employer’s documents to the Grievor. It argues that the Mehta decision can be distinguished. It also relies upon OPSEU and MGS (Ng Grievance), 2010 CanLII 45245 (ON GSB) at paras 20 to 23; OPSEU and MCCS (Union Grievance), 2004 CanLII 55364 (ON GSB) at p.5 (first two paragraphs); CUPE and WSIB (Union Grievance), 2014 CanLII 30088 (ON GSB) at paras. 15 to 17, 25, 38; and BC Transit and ICTU, Local 1 (Hunnisett), (1996) 58 LAC (4th) 372 (Larson) at p.375 to 377. [11] I agree with the Employer that the cases relied upon by the Union are distinguishable. In general, those cases stand for the proposition that an overly technical approach to the interpretation of a grievance is to be avoided1. This is undoubtedly correct. However it is also correct that in order to ensure the efficient hearing of a grievance the parties may reach agreements or be directed as to how the hearing of a given grievance is to proceed. Such agreements or directions are binding upon the parties. The goal of expedition would be entirely frustrated if they were not. Those agreements or directions may include limitations on the nature and the extent of the evidence to be heard. For example, evidence may take the form of representations by representatives, with viva voce evidence only to the extent that the Board considers it necessary; evidence may take the form of sworn declarations from witnesses, with limits on examination on chief or cross examination; or the parties may be directed to exchange full particulars of the facts upon which they rely in support of their respective positions. Contrary to the suggestion by the Union’s representative, in the latter circumstance an attempt by a party to introduce other evidence in chief, whether in reliance on the other party’s documents or otherwise, may properly be the subject of an objection on the basis that the evidence which the party seeks to adduce was not particularized (or, as sometimes more colloquially stated, “no plead, no lead”). [12] The issue, therefore, is what is the scope of the direction set out in the Board’s decision dated June 27, 2014, which reflected the agreement of the parties. [13] The decision of June 27, 2014 directed the Union to “file full particulars with respect to all grounds of the Code which it says are engaged”. It also directed both the Union and the Employer to provide a brief synopsis of the anticipated evidence of their intended witnesses. Notably, the June 27, 2014 decision did not direct the Employer to provide particulars in support of its position. [14] While it may have been efficient to do so, the agreement of the parties reflected in the June 27, 2014 decision was not for an exchange of particulars by which they would be bound. Rather the intent and the effect of the June 27, 2014 decision was to compel the Union to identify all grounds of the Code it says were engaged by the Employer’s actions. In a timely way, the Union identified family status as an additional ground relied upon, over and above religion (i.e. “creed” within the meaning of the Code). The Union’s additional particulars of October 5, 2014, do not seek to add an additional ground. In my view, accordingly, those particulars are not in contravention of the direction of June 27, 2014. 1 OPSEU v. MCCS (Union Grievance) is concerned with a party being ordered to provide further particulars upon the motion of the opposing party. That is an entirely different issue from this case in which a party seeks to add to the particulars it has provided over the opposition of the other party. BC Transit and ICTU, Local 1 (Hunnisett) suggests that orders for particulars should be avoided as they may foster technical objections. Whatever the merits of this view some 20 years later, in this case the order in question issued on the agreement of the parties. - 9 - [15] Without addressing the merits of the Employer’s assertion that a party is precluded from expanding its particulars on the basis of information obtained from documents disclosed by the other party, this is not a case in which that has occurred. This was not, as argued by the Employer, a “fishing trip” by the Union to discover whether it had a case based upon facts within the knowledge of the Employer. Rather, the additional facts relied upon by the Union are ones which were always within the knowledge of the Grievor (I address the Union’s failure to plead them in a timely manner below). That some or all of those facts are referred to in documents produced by the Employer speaks to the Employer’s prior knowledge; it does not establish a “fishing trip”. [16] Nor do I find the Mehta decision to be of assistance. In that case, at issue was the interpretation of a provision of the collective agreement. The employer asserted that the union was estopped from taking a position on the basis of contrary past practice. The union denied knowledge of any contrary past practice and sought particulars. The Board made an order directing the parties to provide each other with full particulars. The particulars provided to the union by the employer maintained the generalized assertion of estoppel but failed to identify any specific occasions of past practice in support of that assertion. At the hearing, the employer sought to lead evidence of specific occasions of past practice in support of its assertion of estoppel. The union’s objection to this evidence was sustained. In this case, by contrast, as stated above, there has been no order directing the exchange of full particulars. [17] To be clear, had there been such an order I would have sustained the Employer’s objection. The additional particulars provided by the Union on October 5, 2014 contain new facts which either were or with reasonable diligence would have been known to the Union. If the Union wished to rely upon those facts it could and should have particularized them at an earlier point in time. However, in the absence of an order for the exchange of full particulars, given that the Employer is aware of most if not all of those facts and that the Union has given the Employer ample notice of its intention to rely upon those facts, I am unable to conclude that the Union is precluded from relying upon those facts as a result of its failure to particularize them at an earlier point in time. [18] For all of the foregoing reasons, the Employer’s objection to the additional particulars provided by the Union on October 5, 2014 is dismissed. [19] I note that the Employer asserts that in the alternative it is prejudiced by the passage of time with respect to some of the facts upon which the Union now seeks to rely. If the Employer wishes to raise an objection on this basis it seems appropriate to address it prior to the next day of hearing, scheduled for November 12, 2014. The Employer shall have until 10:00 AM on November 3, 2014 to file any submissions it may wish to make on this issue. The Union shall have until 5:00 PM on November 5, 2014 to file any submissions it may wish to make in response. The Employer shall have until 5:00 PM to file a reply to any response so filed. Dated at Toronto, Ontario this 28th day of October 2014. Ian Anderson, Vice-Chair