HomeMy WebLinkAbout1992-3652.Sidhu et al.94-02-02
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ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L'ONTARIO
51 GRIEVANCE COMMISSION DE
1111
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SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, M5G lZ8 TELEPHONEITEUi,PHONE (416) 326-1388
180, RUE DUNDAS OUEST BUREAU 2700 TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELECOPIE (416) 326-13f!6
3652/92, 3653/92, 3655/92, 3657/92, 3658/92, 3659/92, 1947/93,
1947A/93
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Sidhu et al)
Grievor
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The Crown in Right of ontario "",
(Ministry of Agriculture & Food)
Employer
BEFORE R. Verity Vice-Chairperson
T Browes-Bugden Member
D. Clark Member
FOR THE G Leeb
GRIEVOR Grievance Officer
ontario Public Service
Employees Union
FOR THE D. strang
EMPLOYER Counsel
Management Board of Cabinet
HEARING November 9, 1993
December 16, 1993
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INTERIM DECISION
At the hearing on November 9, 1993, there were two grievances before us filed by
Kam Sidhu - a grievance dated January 7, 1993 alleging an employer violation of Article
50.6.1 (Pregnancy Leave) GSB #3652/92, and a grievance dated January 12, 1993 GSB
#3653/92 alleging discrimination and health and safety concerns under Articles A and 18.1
respectively
These grievances are said to arise from an unsatisfactory workpl(,lce environment;
namely, the Financial and Support Services Branch of the Ministry of Agriculture and Food
at 801 Bay Street in Toronto. On April 10, 1992, ten branch employees wrote to the
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Deputy Minister raising a number of complaints against Luis Mendonca, manager of the
financial processing unit. Subsequently, Janet Anderson was appointed to conduct an
investigation pursuant to the Workplace Discrimination and Harassment Directives and
Guidelines and the procedures established by the Management Board Secretariat. Ms.
Anderson interviewed the unit manager, ten complainants and ten other witnesses between
May 13, 1992 and September 10, 1992. According to her report, she concluded that
allegations of harassment on the basis of place of origin, allegations of harassment on the
basis of sexual orientation, allegations of harassment on the basis of sex, and allegations of
harassment on the basis of race/colour/ethnic origin (comment about Chinese and Filipinos)
were not substantiated. However, she did conclude that allegations of harassment on the
basis of race/colour/ethnic origin (racial comments) were substantiated. To quote the
Anderson report: "There is sufficient evidence to substantiate that the respondent made
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have reasonably known that these remarks, jokes etc. were unwelcome or offensive. Not
all of the alleged incidents were substantiated by the evidence" The report went on to state
that both the complainants and witnesses who were interviewed spoke of the existence of
two groups in this particular workplace "the white group" and lithe visible minorities"
On the first day of hearing, the board was called upon to assist the parties to resolve
a number of preliminary issues including an employer demand for particulars of the
allegations of alleged harassment and discrimination and a union demand for the
consolidation of all outstanding grievances arising from the same workplace. At the end of
the day, the parties reached the following agreement: -
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1. The union shall provide full particulars of the allegations of harassment and
discrimination on or before December 9, 1992.
2. The panel shall reII1-ain seized on the issue of sufficiency of the particulars
provided.
3 The following grievances will be consolidated with the Sidhu grievance;
namely, the grievances of Tricia Monsegue dated July 9, 1992, GSB #3658/92,
January 11, 1993, GSB #3657/92, and January 11, 1993, GSB #3655/92, and
the grievance of Marva St. Hilaire dated January 7, 1993, GSB #3659/92.
4 The consolidated grievances shall be heard sequentIally commencing with the
grievances of Kam Sidhu, subject to any change that may be agreed upon.
5 Either party may request the Registrar to set dates for a hearing on the
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merits.
6. The preliminary hearing shall proceed on December 16, 1993 to resolve any
outstanding procedural issue.
When the hearing reconvened on December 16, one matter remained i-ndispute.
The union requested production of all statements taken during Janet Anderson's
investigation. It was made clear to tis that the union had already received copies of the
notes and/or written statements of Tricia Monsegue and Marva St. Hilaire. Apparently,
Kam Sidhu did not agree to be interviewed during the Anderson investigation. However,
the employer resisted the request for production, alleging that it was necessary to maintain
some degree of confidentiality to retain the effectiveness of the W.D.H.P prog!am, and
further, that in making the request, the union was embarking upon a "fishing expedition"
Francisco Pangilinan testified on behalf of the employer on the issue of
confidentiality of information obtained in a W.D.H.P investigation. Mr Pangilinan, a
lawyer by training, is one of four investigators who work at the Workplace Discrimination
and Harassment Prevention Unit. He testified briefly as to the function of the central unit
and of the various methods employed in the investigation of a formal complaint. Mr
Pangilinan stated that in dea~g with witnesses tl!e issue of confidentiality is always raised.
According to his evidence, witnesses are told of the authonty to collect information and that
statements obtained "will be held confidential, subject only to the requirements of the
Freedom of Information Act"
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The parties referred the panel to the following authorities: OPSEU (Hurge) and
Ministry of the Attorney Genera/), 348/~2 (Kaplan); Appeal by The C01]Joration of the City of
Hamilton under the Freedom of Information and Protection of Privacy Act (February 9, 1993),
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Re Globe and Mail and Southern Ontario Newspaper Guild (1991), 19 L.A.C. (4th) 440
(Mitchnick); Re Owen Sound General and Marine Hospital and Ontario Public Service
Employees Union. Local 235 (1987), 27 L.A.C. (3d) 193 (Verity); Re B.C. Transit and Office
& Technical Employees' Union (1991), 27 L.A.C. (4th) 160 (BIuman ), OPSEU
(Shah/Mendonca) and Ministry of the Environment 248/92, 1103/92 (Kaplan); OPSEU (Union
Grievance) and Management Board of Cabinet 1526/91,1294/92 (Kaplan); OPSEU (Lawrence
Rupert) and Ministry of Correctional Services 372/84 (Gorsky); and OPSEU (Union Grievance)
and Ministry of Correctional Services 826/88 (Dissanayake). "
There is no dispute between the parties as to the panel's authority to compel
production of the requested documents. The sole issue is whether or not it is appropriate
to do so in the particular circumstances.
The Workplace Discrimination and Harassment Prevention Directive, dated March /'
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1992, contains the following paragraph under the heading "Confidentiality and Data
Collection" (Exhibit 12)'
Throughout the complaint and investigation process all information must remain confidential, subject to
the Freedom of Information and Protection of Privacy Act and th~ requirement to disclose information or
give evidence as required by law, such as grievance arbitrations, Ontario Human Rights Commission
proceedings and judicial proceedings...
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Counsel for the employer candidly acknowledged that in disciplinary cases based on
statements made to W.H.D.P investigators, these statements would be disclosed to the
union.
On the sensitive issue of this request for production, it is necessary to balance the
employer's legitimate concern for confidentiality in order to protect the integrity of the
W.D.H.P program against the union's legitimate request for production of documents that
are "arguably relevant" for the purposes of a fair hearing of the grievances. Given the
seriousness of the allegations in this case, and after careful consideration of the evidence,
the submissions and the authorities submitted, we are satisfied that full disclosure should
be made to the union of all statements and notes obtained during the investigationpf Janet
Anderson. We are not persuaded that the union is on a "fishing expedition" This order
would appear to follow established jurisprudence of the GSB where similar orders were
granted in OPSEU (Hurgel and Ministry of the Attorney General. supra, and OPSEU
(Shah/Mendonca) and Ministry of the Environment. supra.
In making this order, we adopt the test applied in Hyland. 1062/89 (Ratushny) where
the panel held that the issue to be determined was whether or not the documents in
question may be said to be "arguably relevant" In our view, the documents requested by
the union in this case meet that test. However, any final determination as to relevance must
be made at the hearing on the merits.
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We hasten to add that under the Crown Employees Collective Bargaining Act the
board has no authority, per se, to order production of documents. However, we have
jurisdiction to issue a subpoena duces tecum. Given the sensitivity of this case, we make
the further order that the union shall preserve the confidentiality of any documents
disclosed by the employer pursuant to this ruOOg.
Two further matters merit inclusion in the interim decision. The board has directed
the employer to disclose the contents of competition #162/91 to the Union. Secondly in
accordance with the agreement of the parties, a third grievance filed by Kam Sidhu, dated
November 2/93, GSB #1947/93, shall be consolidated with the two grievances originally
scheduled for hearing. Accordingly, the hearing on the merits of the three Sidhu grl.evances
shall proceed on the dates set by the Registrar
DATED at Brantford, Ontario, this9 t h day of February, 1994
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R. L. VElU1Y, Q.C. - VICE-CHAIRPERSON
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T BROWES-BUGDEN - MEMBER
P..<AX.!;.:i..<A.L. IH .!l. ~ .~. n 1;.. ...t;. Q... t: 9. J...1.9. W....... ........
D CLARK - MEMBER
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,',- "" 'ONTARIO EMPLOYES DE LA COURONNE
":' ...: -'''i,'e''' "~," ,> ,CR~WNEMPLOYEES DEL'ONTARIO
") II" IIV 'GRIEVANCE CpMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, M5G 1ZS J TELEPHONE/TELEPHONE (416) 326.,.1388
180, RUE DUNDAS OUEST BUREAU 2100, TORONTO IONTARIO)MSG lZ8 FACSIMILEITEi-ECOPIE (416) 326-1396
March 18, 1994
AHENDKEN'l'
RE' 3652/92, 3653/92, 3655/92, 3657/92, 3658/92, 3659/92,
1947/93, 1947A/93 OPSEU (Sidhu et al) and The Crown in
Right of Ontario (Ministry of Agriculture & Food) I'
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Please attach the Partial Dissent of Mr. D. Clark to your copy of
the above noted decision
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Joan Shirlow
Registrar
JS/dbg
Encl.
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PAR T I A L D I SSE N T
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GSB #3652/92, ETC.
OPSEU (Sidhu et al)
and The Crown in Right of Ontario
(Ministry qf Agriculture & Food)
The majority of the Board concluded that full disclosure
should be made tQ the union of all statements and notes
obtained during the investigati6n of Janet Anderson This
investigation was conducted pursuant tb the Workplace
Discrimination and Harassment Prevention (W D.H.P ) program
With respect, I do not agree that all of the statements and
notes obtained during the investigation should be turned
over to the union. This is not a disciplinary case when the
employer acted on statements made to a W D H.P. investigator
and would, as a result, have to disclose these statements to
the union
I agree with the majority (page 6 of the award) that it is
necessary to balance the employer's legitimate concern for
confidentiali ty in order to p.rotect the integrity of the
W D H P program against the union's legitimate request for
production of documents that are "arguably relevant" for the
purposes of a fair hearing of the grievances. The majority
concluded the union was not on a "f,ishing expedition" I )do
not share this opinion because some of the information the
union wanted access to had nothing to do wit~ the
allegations of the three grievors
During the course of her investigation, Ms Anderson
interv i ewed twen ty-one people, th,e r e sponden t, ten
complainants and ten other witnesses. In my opinion, those
statements made to her that have no bearing on the specific
allegations of the grievors should not ~e disclosed to the
union in order to protect the confidentiality and integrity
of the W D H.P program.
Of the ten co~pl~inants interviewed, two were the grie~ors
(the third grievor chose not to participate in the W D H.P
investigation) In many instances, the concerns of the
remaining eight complainants had nothing whatsoever to do
with the specific allegations of the grievors. One
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complainant for example, alleged harassment by the
supervisor on the basis of sexual ori~ntation (this was
found to be unsubstantiated,), another complainant alleged
harassment by the supervisor on the basis of
race/colour/ethnic origin (the comments about Chinese and
Filipinos) This was also found to be unsubstantiated The
interim decision will now allow the union to have access to
all of the statements made not only by the eight other
complainants, but the-ten witnesses as weil Herein lies' my
concern
One of the objectives of the W D.H P program is "to provide
the principles and mandatory requirements essential to
creating a work environment that is free from discrimination
and harassment" (Exhibit #12) Certain complaint resolution
prooedures were established Althqugh The W.D H P
Directive does indicate that the information will remain
confidential subject to certain conditions such as the
requirement to disclose information or give evidence as
required by law such as a grievance arbitration, I cannot
help but wonder what affect the decision to disclose to the
union all of the statements made during the investigation
Hill have on those individuals Hho gave confidential
v information to the investigator on matters unrelated to the
allegations of the grievors In the future, a person might
be reluctant to participate in the process I hasten to add
that, in all fairness, I have no doubt whatsoever that the
union will preserve the confidentiality of any documents
disclosed by the employer as a result of the ruling and no
evidence was led by th,e employer to suggest that the
disclosure of all statements would have a detrimenta'l affect
on the W D.H P program. However, based on the majority
decision to release the information to the union, an
individual might now think twice before becoming involved in
an investigatiop if they know that statements they make to
an investigator may have to be disclosed even if their
statements have nothing to do with someone else's oomplaint
In my respectful opinion, this does not promote the
objective of the W D H P. program, which is', to promote a
work environment free of discrimination and harassment.
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For the above reasons, I would have only allowed the
disclosure of those statements and notes that directly
relate to the grievors' allegations
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Don M Clark, Member