HomeMy WebLinkAboutPenava 01-03-08 IN THE MATTER OF AN ARBITRATION
BETWEEN
ST. CLAIR COLLEGE
(the "College")
and
OPSEU
(the "Union")
RE: GRIEVANCE OF JERRY PENEVA
Board of Arbitration:
Michel Picher Chair
Richard O'Connor College Nominee
Michael Sullivan Union Nominee
Appearing for the College:
Barry Brown Counsel
Appearing for the Union:
Nelson Roland Counsel
Mary Anne Kuntz Grievance Officer
Sandi Webster President, Local 13A
Jerry Peneva Grievor
Hearings in this matter were held in Windsor on January 20,
November 6, December 7, 2000 and January 3 and 4, and
January 17, 2001.
INTERIM AWARD
This arbitration concerns a grievance against a 20 day suspension. By
notice dated January 14, 1999 the College advised the grievor, Mr. Jerry Penava,
that he would be suspended for 20 working days commencing January 18, 1999.
It alleges that he failed to provide adequate instruction to students, refused to
answer their questions and addressed students in a demeaning manner.
During the course of the testimony of Ms. Marg Dore, Manager of Human
Resources, it emerged that a report was submitted to the College by Ms. Dore
concerning the state of the Department in which the grievor worked. Although a
separate report by Ms. Dore concerning the result of student interviews which
she conducted following a series of complaints about Mr. Penava was adduced
in evidence, the larger report concerning the department as a whole was not
disclosed. When counsel for the Union asked the witness to produce the
departmental report counsel for the College objected. He expressed the concern
that the report might disclose information of a confidential nature, some of which
could concern other faculty members, which is not relevant to the grievor's case.
The Board ruled to direct production of the departmental report, subject to
a series of conditions related below. Part of the dispute in the instant case
concerns whether Mr. Penava was placed in an unfair situation by reason of
students in one of his courses having inadequate prerequisites in drafting. His
counsel also stresses that the evidence indicates that students complained about
another professor, identified by name. He submits that the grievor should be
entitled to examine the report to determine whether it supports, in whole or in
part, Mr. Penava's view that his difficulties stemmed from the inadequate
preparation of the students in their prerequisite drafting courses. He also
submits that the report could bear on whether Mr. Penava Was unfairly singled
out or treated in a discriminatory fashion as compared to at least one other
professor who also attracted student complaints, and perhaps others.
We are compelled to agree. While it obviously remains to be seen
whether the departmental report submitted by Ms. Dore contains information
relevant to the instant grievance, fairness would demand that the report be
produced for the purposes argued by the Union's counsel. In our view, however,
the report should be produced only on a strict in camera basis so as to properly
balance the College's legitimate interest in preserving the document's
confidential nature with the grievor's right to access infOrmation potentially
relevant to his own defence.
We therefore ruled as follows:
· The departmental report prepared by Ms. Dore is to be produced
to the grievor and his counsel.
· The document shall be dealt with strictly in camera. It is not to be
copied other than for the purposes of this hearing, and its
contents are not to be disclosed outside the hearing by anyone.
· Prior to its production, the College shall white out the names of
persons identified in the report, with the exception of the grievor
and the other professor already identified as the subject of
student complaints. Should the Union believe that the identity of
any person whose name is covered is relevant and material to
this dispute, the Board will hear submissions from both parties
and rule on the issue, on a case-by-case basis, if necessary.
The College shall produce the report to counsel for the Union no later than
June 29, 2001.
Dated at Toronto this 8th day of March 2001.
Michel G. Picher Chair
"Richard O'Connor
Richard O'Connor
College Nominee
"Michael Sullivan"
Michael Sullivan
Union Nominee