HomeMy WebLinkAboutMarshall 94-11-11
NDU-11-1994 15:14
577 JARUIS LTD
P.002
IN THE MkJ.-J..J:S1'(. OF .AN .ARBlTBATlON
B"I"W .ta:æl
NIAGARA. CHIT .n DEVELOPMENT CBIft'RB
(Hereinafter referred to as the uCENTRE'~
.AND
ONTARIO PUBLIC SERVICE EMPLOYBBS UNION. LOCAL 214
(Hereinafter refezred to as the IIUNION'~
CONCERNING: Discharge grievance of Michael Mamhall
mrn:auJ AWDD lΠPDTICULABS
SOLE ABBlTRA.TOR: Loretta Mikus
APPEABING FOR TRB COMPANY:
Ms. Frances Gallop, Counsel
.APPEARING FOR THE UNION:
Mr. Mitch Bevan. Grievance Office
HEABING DATES:
DATE OF AW.AIm:
}love~erll.1994
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This grievance concerns the discharge of a Social Worker. Michael Marshall. One of the
factors relied on by the Centre is the allegation that he was involved in a relationship with
a client. Prior to discharging the grievor the Centre undertook an investigation which
resulted in the preparation of written statements and other documentation regarding the
incidents that gave rise to the discharge.
Mr. Bevan, Grievance OffIcar for the Union, requested particulars, specifically the written
statement of the client involved in the alleged relationship. the grievor's personnel file and
any investigative reports or documents the Centre relied on in coming to the decision to
terminate the grievor.s services.
Ms. Gallop. counsel for the Centre agreed to provide the Union with the personnel file.
However. she expressed some concern regarding the confidential nature of the
documents and took the position that the Centre would only release the documents by
order of the Board. As well. the Centre asked for an order that the information provided
to the Union be used only for purposes of this hearing and be treated as confidential by
the Union and the grievor.
Section 45(8) of the Labour Relations Act A.S.O. 1990 Ch. L2 sets out the jurisdiction
and powers of a board of arbitration. It provides that arbitrators have the authority to
grant interim orders. Section 45(8.1) specifically addresses the procedural powers of
arbitrators. Included in that list of powers is the following:
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1.
To require any pany to furnish particulars before or during a hearing.
To require arPI party to produce documents or things that may be relevant to the
matter and to do 80 before or during the hearing.
2.
Arbitrators, in exercising these powers must act judiciously. The actual determination as
to what, if any, information ought to be produced must be made after consideration of
the nature of the dispute and the request for information based on the facts of the
individual case. In this case there is no dispute about the relevance of the information
being sought While I appreciate the concerns of the Centre regarding the release of
confidential information concerning a client, I am not convinced that concern outweighs
the right of the grievor to a fair hearing. In any event, if the Centre intends to rely on
those statements and documents, it is likely that the people mentioned in the documents
and statements will be called to give evidence at the hearing concerning their dealings
with the grievor.
This is a discharge grievance which involves allegations of a serious nature. The grievor
is entitled to know the case against him in order to prepare a proper defence. In order
to do that he must be allowed to know, in advance of the hearing, the information the
Centre relied on in coming to its decision to terminate his services.
The Act allows a board of arbitration to determine its own procedure which includes the
jurisdiction to place limitations on the use of information gained during or prior to a
hearing. In this case Mr. Bevan has agreed that the Union and the griever will not use
any of the information disclosed for any purpose other than to defend the grlevor against
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the allegations gMng rise to the discharge. In reliance of that undenaldng, I decline the
Centre's request for an order to that effect and remind the parties of the normal and
usual obligations in relation to the proper conduct of a hearing.
The Centre then is ordered to provide to the Union the written statement of the client
involved in the allegations, the personnel file of the grievor and any investigative reports
or documents relating to the allegations that the Centre intends to rely in presenting its
case.
Signed this 11th day of November. 1994.
Loretta Mikus
TOTAL P.005