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Home My WebLink About1992-3652.Sidhu et al.94-02-09 - '''- '. - ;; .' ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DEL 'ONTARIO .. '", ,.j; GRIEVANCE COMMISSiON DE 1111 , SEITlEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, MSG lZ8 TEU"PHONE/TELEPHONE (416) 326-1388 lBO, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) MSG lZ8 FACSIMILE ITEUicOPIE 1416) 326-1396 3652/92, 3653/92, 3655/92, 3657/92, 3658/92, 3659/92, 1947/93, 1947Aj93 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Sidhu et al) Grievor - and - 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 REARING November 9, 1993 December 16, 1993 --.~--~------ - --- ,~ " .' 2 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 workplace 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 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 0 ~~ ---- - 3 comments based on race/colour/ethnic origin and that the respondent did know or ought to have reasonably known that these remarks, jokes etc. were unwelcome or offensive. Not aU 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 "the 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: =. 1. The union shall provide full particulars of the allegations of harassment and discrimination on or before December 9, 1992. 2. The panel shall remain 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, aSB #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 tbe ---. - '. . 4 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 in dispute. The union requested production of all statements taken during Janet Anderson's investigation. It was made clear to us 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 dealing with witnesses the issue of confidentiality is always raised. According to his evidence, witnesses are told of the authority to collect information and that statements obtained "will be held confidential, subject only to the requirements of the Freedom of Information Act" I . ~' 5 The parties referred the panel to the following authorities: OPSEU (Hurge) and Ministry of the Attorney General). 348/~2 (Kaplan). Appeal by The COlporation of the City of Hamilton under the Freedom of Information and Protection of Privacy Act (February 9, 1993); 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 R.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 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 the requirement to disclose information or give evidence as required by law, such as grievance arbitrations, Ontario Human Rights Commission proceedings and judicial proceedings... .., . . ~ . 6 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 investigation 9f 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 (Hurge) 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 Hvland. 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. -------- . . ;> .. 7 We hasten to add that under the Crown Emplqyees 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 ruling. 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 acc;Jrdance 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, this 9 t h day of February, 1994 -~ ..c:- ~;- .~~...~..=..............: 7 R. L. VE~TY9 Q.C. m VICE-CHAIRPERSON .cJIi1~&~L T. BROWES-BUGDEN - MEMBER r..~x.r:.~.~.L..I)' j. .~.~ .~. n.t.. .t;. Po... f. 9. J. 1.9. w....... ........ D. CLARK - MEMBER