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HomeMy WebLinkAbout2013-3490.Iyamu.15-04-17 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#2013-3490, 2014-2224 UNION#2013-0290-0051, 2014-0290-0017 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Iyamu) Union - and - The Crown in Right of Ontario (Ministry of Children and Youth Services) Employer BEFORE Marilyn A. Nairn Vice-Chair FOR THE UNION John Brewin Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Felix Lau Treasury Board Secretariat Legal Services Branch Counsel HEARING April 13, 2015 - 1 - Decision [1] Grievance #2013-0290-0051, dated December 5, 2013, challenges the employer’s decision to terminate the grievor’s employment as a Youth Services Officer (“YSO”). Grievance #2014-0290-0017, dated June 3, 2014 alleges that the employer discriminated against the grievor by reason of his race and/or disability in violation of the collective agreement, the employer’s Workplace Discrimination and Harassment Policy (“WDHP”), and the Human Rights Code (the “Code”). [2] There is no dispute that I have the jurisdiction to hear and determine these grievances. The hearing has commenced on the merits of the termination grievance, pending the determination of a few procedural issues. This interim decision confirms the oral rulings made on April 13, 2015 and records the parties’ agreement with respect to certain other matters. [3] Further to an earlier direction, the union provided particulars of the second grievance. That grievance alleges that the employer discriminated against the grievor both in connection with his termination from employment and with respect to a WDHP complaint and issues surrounding the grievor’s claim for WSIB and an accommodated return to work. It is also the case that the union will assert as part of the termination grievance that, in deciding to terminate the grievor’s employment, the employer imposed differential and higher discipline on the grievor than other employees in similar circumstances. That allegation does not necessarily require an assertion of discrimination pursuant to a prohibited ground under the Code or collective agreement, although it captures assertions of different treatment based on inappropriate factors. [4] The employer raised a question as to what harassment/discrimination allegations are properly before the Board. In that regard, it sought to ask the Board to issue an order confirming that the subject matter of a complaint filed by the grievor with the Human Rights Tribunal of Ontario (the “HRTO”) was also properly before this Board. Alternatively, the employer was initially seeking a decision noting that the grievor was on notice that the employer would seek to dismiss any future claim before the HRTO if the grievor failed to pursue any fact or argument relating to his HRTO complaint before this Board. [5] The union provided the employer with the acknowledgement that it agreed that the discrimination grievance includes a complaint that the employer dealt with the grievor in violation of the Code (and that such issues have been raised and deferred by the HRTO pending the outcome of these proceedings), and that this Board has the jurisdiction to determine whether there has been a breach of the Code as described in the particulars. Further, the union agreed that, once the grievance has been determined by this Board, the HRTO may decide that all issues in that complaint have been dealt with and may then exercise its jurisdiction to dismiss the HRTO complaint. The employer was prepared to accept that statement from the union without anything further from the Board. [6] The parties were at issue as to how to proceed with the hearing of the grievances. Having heard the parties’ representations, I ruled orally that the grievances would be heard consecutively, rather than concurrently. I noted that the issue of differential treatment was part of the termination grievance. In addition, I had at the outset of these proceedings directed that all evidence heard would be received for all purposes in both grievances. - 2 - [7] Notwithstanding that the union intends to assert differential treatment with respect to the employer‘s decision to terminate the grievor’s employment, the second grievance raises other allegations that capture a significant and different period of time from the one very discrete point in time that gave rise to the termination. It also raises factual issues unrelated to the conduct giving rise to the decision to terminate the grievor’s employment. Hearing the grievances concurrently would inappropriately and significantly delay the hearing and determination of the termination grievance. That issue is the priority from a labour relations perspective. Proceeding in this manner should not extend the overall period of time required to have the matters determined. Any decision with respect to the termination grievance may also assist the parties in dealing with the second grievance. [8] There were a number of production issues as well. The union sought production of all of the names of individuals whether YSOs or managers who, since the facility opened in 2009, had been disciplined for a variety of listed offences, a summary of the discipline, whether the matter was grieved, and the outcome of any grievance. The employer took objection to the scope of the request. The union asserted a claim for production on the basis that it had raised the issue of differential treatment with respect to discipline imposed on the grievor. The union and/or the grievor in his HRTO complaint had identified certain names but no other specific details had been provided, with the exception of particulars relating to one individual referred to in the HRTO complaint and certain individuals identified in the cross-examination of the manager, Mr. Hatslhoffer. [9] The employer agreed to produce the documents in relation to the individuals that the union had named in the cross-examination of Mr. Hatslhoffer [10] In an oral ruling, I directed the employer to produce to the union a copy of any discipline issued to the individual particularized in the HRTO complaint in relation to the particulars therein provided. Further that, should the union seek further production it was to particularize the name as well as the asserted incident and/or discipline that it alleged constituted differential treatment from the grievor. Should that give rise to any further issue, it may be addressed by the Board. [11] With respect to the remaining production issues, the employer agreed to produce to the union copies of the videos taken of the interviews conducted as part of Senior Inspector McGillis’ investigation into the incident at issue. The employer also agreed to produce the photographs referred to in Exhibit 13 (tab 15 of the employer’s book of documents) although it needed to verify that they were still available. The employer did provide at the hearing on April 13, 2015, redacted copies of the photographs found in the Appendices to the investigation report. [12] The material to be produced by the employer either by agreement or as ordered by the Board is to be provided to the union by no later than June 1, 2015. This hearing is scheduled to continue on June 19, July 2, July 3, October 20, October 28, November 2, and November 27, 2015. Further notice from the Board confirming the additional dates scheduled on April 13, 2015 will issue. - 3 - [13] Should other procedural issues arise, they are to be addressed to the Board prior to this matter continuing on June 19, 2015. Dated at Toronto, Ontario this 17th day of April 2015. Marilyn A. Nairn, Vice-Chair