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HomeMy WebLinkAbout2014-2741.Deganis.16-07-06 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#2014-2741 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Association of Management, Administrative and Professional Crown Employees of Ontario (Deganis) Association - and - The Crown in Right of Ontario (Ministry of Labour) Employer BEFORE Marilyn A. Nairn Vice-Chair FOR THE ASSOCIATION Cynthia Petersen Goldblatt Partners LLP Counsel FOR THE EMPLOYER Omar Shahab Treasury Board Secretariat Legal Services Branch Counsel HEARING June 28, 2016 - 2 - Decision [1] This is a job competition grievance. In the course of the hearing two evidentiary issues arose. This interim decision deals with those questions. The relevant facts were not in dispute. Issue #1 [2] The first issue relates to the admissibility of an e-mail dated July 16, 2014 included at tab 29 of the Association’s document brief. There is no dispute that five documents attached to the e-mail may be admitted into evidence without further proof and on consent of the parties. The Association seeks to introduce a copy of the e-mail without further proof on the basis that it is relevant and was provided by the employer representative, Melissa Kot, in response to a request for disclosure made by the Association. [3] That request for disclosure was made in the same letter wherein the Association gave notice to the employer that it was moving the grievor’s complaint to stage two of the parties’ dispute resolution procedure. That letter provides, inter alia: The Association is committed to working with the designated management representative…to determine an appropriate resolution to this dispute…In an effort to resolve the dispute, the Association requests full disclosure of all documentation related to this case. The disclosure is requested from the employer pursuant to disclosure requirements of Article 15.4.7 of the Collective Agreement… [4] It was agreed that the e-mail, with its attachments, was sent in response to that request. [5] The collective agreement provides, inter alia: ARTICLE 15 – DISPUTE RESOLUTION PROCEDURE 15.1 Statement of Intent The Employer and the Association acknowledge the importance of resolving disputes arising from the interpretation, application, administration or alleged violation of this agreement…at an early stage…The parties further acknowledge the importance of full disclosure of issues and open discussion throughout the process to facilitate mutually acceptable resolutions. … 15.4 General … 15.4.7 The parties agree to fully disclose all information on which they rely in support of or in response to a complaint or dispute, including - 3 - disclosure of any facts relied upon by Management in a decision that is subject to a complaint or dispute. … 15.10 Arbitration Provisions [15.10.1 to 15.10.7 follow] [6] The employer objected to the introduction of the e-mail on the basis that it was subject to grievance procedure privilege. It referred to and relied on the decisions in The Crown in Right of Ontario (MOF) and OPSEU (Eagles), GSB #2013-1923 et al., July 23, 2015 (Petryshen); York (City) Board of Education v. CUPE, Local 1749-B, (1989) 9 L.A.C. (4th) 282 (H. D. Brown); Scarborough (Borough) and I.A.F.F., Local 626, (1972) 24 L.A.C. 78 (Shime); and Benteler Automotive Canada Corp. v. CAW Canada [2012] O.L.A.A. No. 114 (H.D. Brown). [7] The Association acknowledged a general principle that statements made during the grievance procedure were inadmissible as such privilege promoted free and frank discussion between the parties. It argued however that this e-mail was and ought to be exempt from such protection, as the rationale for exclusion was not served in this case. Furthermore, argued the Association, the e-mail was not made in the context of any settlement discussions. Rather, it was made pursuant to Article 15.4.7 of the collective agreement and its contents relate to the requested disclosure. The Association argued that it would defeat the purpose of the early disclosure provision to shield the material from admissibility at the hearing. [8] The incumbent, having received notice of the hearing, was not present for the hearing of this issue. [9] In reply, the employer noted that the e-mail was provided in anticipation of a stage two meeting during the grievance procedure. The fact that no specific settlement proposal was being discussed was irrelevant, it argued. It noted that the onus in the arbitration was on the Association and it was not incumbent on the employer to particularize information exchanged during the grievance process that might be relevant to the proceedings. * [10] The contents of the e-mail make reference to factual matters that could potentially be elicited through viva voce testimony and accordingly, may ultimately form part of any evidentiary record before the Board. That remains to be seen. Circumstances may also arise during the course of the hearing that might warrant consideration of the e-mail. I find, however, that it would be inappropriate to admit the e- mail based on the Association’s request at this time. [11] The e-mail was forwarded in response to a request made under Article 15.4.7 of the collective agreement. That provision is contained within the collective agreement provisions describing the parties’ dispute resolution process. It is listed under a heading - 4 - of “general” provisions within Article 15.4 of the collective agreement, immediately following the description of stages one and two of the grievance procedure. Provisions titled and specific to arbitration do not commence until Article 15.10 of the collective agreement. Therefore, the structure of the collective agreement suggests that the disclosure requirement at Article 15.4.7 was intended by the parties to relate to the grievance procedure and the furtherance of those discussions. [12] That intention appears to be confirmed by the language used by the Association in its request for disclosure. First, the request is found within the same letter in which the Association notified the employer that it was advancing the grievance from stage one to stage two of the grievance procedure. In addition, the letter also makes clear that the request is being made in the context of preparing for the stage two meeting and “in an effort to resolve the dispute”. [13] There was no dispute that, as a matter of general principle (subject to some exceptions), discussions occurring during the grievance procedure are privileged. I am satisfied that, while particular alleged and relevant facts may not ultimately be subject to privilege, the parties intended that communications such as this e-mail were intended to be captured by the privilege. There is no basis for drawing a distinction from the method of communication as all of it occurred during the grievance procedure in order to foster more open discussion between the parties in the hope of a better opportunity to resolve the grievance. [14] Similarly to a request for production, there may be alleged facts disclosed to a party prior to arbitration that are relevant to the issues in dispute. However, such alleged facts require proof at arbitration, absent agreement by the parties. There is no such agreement here. [15] I find therefore that the e-mail dated July 16, 2014 is not admissible as evidence pursuant to this Association request. Issue #2 [16] The parties were agreed that the respective personnel files of the grievor and the incumbent in the disputed position contained no reviews or plans relating to the job performance of those individuals. It was also agreed that the selection committee did not refer to the personnel files of the two individuals during the selection process and therefore, the committee would not have seen any material relating to the job performance of the two candidates. However, it appears that the incumbent provided the employer with documents that purport to be performance plans/reviews of her work. The employer included those documents as tabs 10-13 inclusive of its document brief. [17] The Association objected to the admission of these documents on the basis of relevance, as the material was not and could not have been before the committee making the candidate selection. The Association also raised an objection as to their authenticity and objected that the document at tab 13 appeared to post-date the competition. - 5 - [18] The employer argued that any issue of authenticity of the documents could be addressed over the course of the hearing, acknowledging that the Association was not consenting to their admission. The employer argued that, as the Association had already entered into evidence a performance appraisal from the grievor with attendant viva voce evidence, it would be contradictory to prohibit similar documents relating to the incumbent. The documents were relevant, argued the employer, both as to the respective performance of the two candidates and to the question of remedy. The Board required the full record before it in order to make any appropriate assessment of the candidates, argued the employer. [19] The Board is charged with, and has considered all of the relevant material when reviewing job competition grievances, regardless of whether or not that material was before the selection committee, argued the employer. It referred to the decisions in The Crown in Right of Ontario (MNDMF) and OPSEU (Boucher), GSB #2010-0571,October 19, 2011 (Dissanayake); The Crown in Right of Ontario (MYCS) and AMAPCEO (Alderson), GSB #2006-1007, July 4, 2008 (Dissanayake); The Crown in Right of Ontario and OPSEU (Jobson), GSB #2008-1107, April 8, 2011 (Petryshen); and The Crown in Right of Ontario and OPSEU (Saras), GSB #457/85, April 29, 1988 (Swan). [20] The incumbent, having arrived during the proceedings, argued that the documents were valid and should be before the Board. [21] In reply, the Association noted only that had the documents formed part of the personnel file it would have no objection, as a central part of its case was that the process was flawed because the employer had focussed on the interviews, to the exclusion of how the individuals had performed in their work. * [22] This is a job competition grievance, requiring a relative assessment of the two candidates. Documents relating to the performance of an employee are relevant to such a grievance; both with respect to an assessment of the process undertaken and to the comparative exercise as between candidates. The Board has considered such material regardless of whether or not the selection committee had the material before it when reaching its decision; see for example, The Crown in Right of Ontario (MNDMF) and OPSEU (Boucher), supra. Where, as here, the Association asks that the grievor be placed in the disputed position as a remedy to the grievance, all material relating to an appropriate assessment of the candidates’ comparative attributes is relevant; see for example, The Crown in Right of Ontario (MCYS) and AMAPCEO (Alderson), supra. [23] I find therefore that documentary material relating to the job performance of the incumbent, to an appropriate point in time, is relevant to the issues before the Board. However, given that the Association is not agreeing to the admission into evidence of the documents found at tabs 10-13 inclusive of the employer’s document brief without proper proof, the documents are not appropriately before the Board at this time. [24] Should a party seek to place such documents before the Board, they must be entered into evidence in the usual and normal course through a witness who is able to - 6 - speak to the documents. Issues apart from the relevance of the documents may be addressed if and as they arise. [25] This hearing is scheduled to continue on September 15, 2016. Dated at Toronto, Ontario this 6th day of July 2016. Marilyn A. Nairn, Vice Chair