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HomeMy WebLinkAbout2014-1158.Brown-Bryce et al.16-06-13 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#2014-1158, 2014-1159, 2014-1160, 2014-1162, 2014-1163, 2014-1164 UNION#2014-5112-0043, 2014-5112-0044, 2014-5112-0045, 2014-5112-0047, 2014-5112-0048, 2014-5112-0049 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Brown-Bryce et al) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Nimal Dissanayake Vice-Chair FOR THE UNION Tim Hannigan Ryder Wright Blair & Holmes LLP Counsel FOR THE EMPLOYER Stewart McMahon Treasury Board Secretariat Legal Services Branch Counsel HEARING June 7, 2016 - 2 - Decision [1] The Board is seized with six individual grievances, each alleging that the employer failed to make reasonable provisions for safety and health of the grievors as required by article 9.1 of the collective agreement. The grievances arose following an incident that took place at the Toronto South Detention Centre on March 11, 2014. Upon agreement of the parties, a view of the relevant areas of the Toronto South Detention Centre was conducted on June 7, 2016. Following the view, a hearing was held at the detention center to deal with certain preliminary matters. [2] The first issue was a motion by the employer that the grievances in GSB FILES 2014-1162 (Peck) and 2014-1164 (Thanachayan) be dismissed due to the grievors’ failure to attend any of the hearings in this matter, and due to their failure to prosecute the grievances. [3] The union advised the Board that it was withdrawing the grievance in GSB File 2014-1164 (Thanachayan). [4] After the completion of submissions on the motion as it related to file 2014-1162 (Peck), union counsel advised that he would be seeking instructions on whether Ms. Peck wished to pursue or would be withdrawing her grievance. In the circumstances, the parties requested that the Board differ the issuance of its decision on the motion until the union advises whether or not it wishes to pursue. The union is therefore directed to advise the Board and employer, no later than Wednesday June 22, 2016 whether the Peck grievance is withdrawn or whether it wishes to pursue with it. If no communication is received by that date, the Board would be issuing its decision based on the submissions received. [5] The second issue raised by the employer was about disclosure and particulars. The employer had previously raised its concerns about inadequacy of particulars and disclosure on the part of the union. At the hearing on April 6, 2016, the issue - 3 - came to a head. Following discussions between the Vice-Chair, employer counsel, and union counsel at the time, Mr. John Brewin, the parties agreed on a process with attached timelines. On agreement, this process was issued in the form of a Board order in a decision dated April 8, 2016. [6] The parties agree that some particulars and productions had been made pursuant to the Board order. Mr. Hannigan conceded that some particulars and production are still outstanding, and that the timelines for compliance set out in the Board order have passed. Mr. Hannigan submitted that nevertheless, it would not be appropriate to dismiss the grievances outright at this stage without giving the union a further opportunity. He submitted that the union and the grievors have treated the Board order very seriously and had made significant attempts to comply. To the extent that medical disclosure still is not complete, it is the result of the failure on the part of third parties to respond to the union’s requests for information in a timely manner. Mr. Hannigan pointed out that he had recently taken over this matter as counsel from Mr. Brewin, and stated that he would, if it becomes necessary, force the third parties in question to produce the information by serving them summonses. [7] Employer counsel reviewed in detail all efforts he had made to obtain the information ordered by the Board. He submitted that while he was entitled to seek outright dismissal of the grievances for failure to comply with the Board order, he would not oppose giving the union a further opportunity to comply, provided strict conditions are attached together with severe consequences for non-compliance. [8] In a communication to union counsel dated May 16, 2016, employer counsel set out the information ordered by the Board, which in his view was still outstanding. The union did not dispute that the information in question was relevant and had not been provided as required by the Board order. If the Board accepts that the missing medical documentation is due to tardiness on the part of third parties, that still does not explain the failure to provide particulars referred to in the May - 4 - 16, 2016 communication of employer counsel. That information has nothing to do with third parties. Therefore, taking all of the circumstances into consideration, it is ordered as follows: The union shall provide all of the outstanding disclosure and particulars referred to in the employer’s communication dated May 16, 2016, as they relate to the issue of liability, no later than July 4, 2016. If the Board concludes that the union has been non-compliant, the union would be precluded from leading any evidence on the assertions related to such information. To be clear, the medical information outstanding is arguably relevant to the issue of liability, and must be disclosed no later than July 4, 2016. [9] The Board remains seized. Dated at Toronto, Ontario this 13th day of June 2016 Nimal Dissanayake, Vice Chair